SAN FRANCISCO Is the Internet a public forum where all sorts of speech and information gathering are allowed under the First Amendment? Or is it more like a piece of real estate where websites can bar entry to trespassers as they see fit?
Those were among the meaty questions tackled Thursday afternoon by two of the country's pre-eminent constitutional advocates Munger, Tolles & Olson partner Donald Verrilli and Harvard Law School professor Laurence Tribe in a bet-the-company case that has the potential to shape the future of the web.
The pair squared off in a case pitting Verrilli's client, professional networking site LinkedIn Corp., against hiQ Labs Inc., a data analytics startup represented by Tribe and lawyers from Farella Braun + Martel.
Until recently, hiQ used data from publicly available LinkedIn user profiles to create analytic tools for employers to identify valuable workers and map the skills of their workforces. The 24-employee startup received $14.5 million in venture capital seed money and has worked for such companies as eBay, Capital One and GoDaddy.
But in late May, in-house counsel for LinkedIn sent hiQ a cease-and-desist letter claiming the startup's data-scraping activities were prohibited under the site's terms of service. LinkedIn blocked hiQ's access and warned any further efforts to access the site would risk violating the Computer Fraud and Abuse Act, or CFAA, a federal anti-hacking law passed in 1986 that carries civil and criminal penalties.
The resulting legal tumult unfolding in front of U.S. District Judge Edward Chen of the Northern District of California has left hiQ in a bit of a tailspin. Farella's Deepak Gupta said at the hearing, where hiQ was asking for an injunction barring LinkedIn from blocking its access to public profiles, that the company was down to 15 employees and would struggle to find further funding without access to its primary data source.
Chen said the case presents "a number of cutting-edge issues" and grappled with just how to apply the CFAA and First Amendment to a public website such as LinkedIn, which in some ways functions as the 21st century equivalent of a town square.
Verrilli said the CFAA "squarely" addresses the sort of "computer trespass" at issue in the case. LinkedIn, he said, places conditions on accessing its public profiles in much the same way a public library makes information available. The library, he pointed out, can revoke access to someone trying to break in at 2 a.m., presenting a fake idea, or habitually keeping items past their due date. Likewise, museums that display art publicly often place restrictions on viewers, such as prohibiting flash photography.