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Startup claims free speech rights are at stake; LinkedIn disputes this
Tech startup hiQ Labs, which analyzes openly available data from LinkedIn user profiles, has asked a federal court to prevent the professional-networking website from blocking its access to that data.
The startup asserts that LinkedIn has hurt its ability to make money, trampled its free-speech rights and unfairly limited competition, which has imperiled hiQ's existence. LinkedIn contends that it must protect its users from what it considers hiQ's unlawful and potentially career-damaging data misappropriation.
The two companies are headed for a July 27 hearing in the U.S. District Court for the Northern District of California.
The San Francisco-based startup collects publicly available information from LinkedIn profiles and uses it to provide its own Fortune 500 clients with analyses on which employees are ripe for poaching by a competitor. The firm also analyzes the data to show employers the scope of employees' skills.
The startup says it collects only information that LinkedIn users have made public through their settings choices.
[SHRM members-only toolkit: Recruiting Internally and Externally]
LinkedIn Says Cease and Desist
In May, Sunnyvale, Calif.-based LinkedIn, which Microsoft Corp. acquired for $26 billion last year, sent hiQ a cease-and-desist letter. It states that the startup's continued automated scraping of LinkedIn member profiles violates several federal and state laws, including the U.S. Computer Fraud and Abuse Act and the federal Digital Millennium Copyright Act.
"This came as a shock to hiQ, as LinkedIn has been aware of hiQ's activities for several years and never once objected to hiQ's use of this public information," the startup said in a legal complaint filed in June. In fact, the filing said, LinkedIn has participated in hiQ's Elevate conference for almost two years.
"hiQ has spoken freely about its data collection from LinkedIn at Elevate, so LinkedIn understood exactly what hiQ does," the complaint states. "Over the years, LinkedIn has spoken at Elevate, and in 2016 it applied for and won an Elevate 'Impact Award.' hiQ's former CEO even held a series of in-person meetings with LinkedIn personnel discussing hiQ's business in late 2016 and early 2017," hiQ stated in a related court filing.
"Our members control the information that they make available to others on LinkedIn. hiQ is taking member data, without their knowledge, and using it for purposes our members haven't agreed to. We are confident the court will support the actions we take to stop unlawful scraping of our members' profile data," according to a LinkedIn Statement given to SHRM Online
hiQ wants the court to declare that the startup hasn't violated any laws by accessing "wholly public information" from LinkedIn. The firm, whose clients include eBay, Capital One and GoDaddy, also asked the court to prevent LinkedIn "from misusing the law to destroy hiQ's business and give itself a competitive advantage through unlawful and unfair business practices.".
One of hiQ's attorneys, Deepak Gupta, a partner in Farella Braun + Martel's intellectual property litigation practice, recently told SHRM Online that LinkedIn public profiles provide "the raw data for hiQ's analytics and, without that information, the company will be unable to continue operations."
Harvard Law School constitutional law professor Laurence H. Tribe is listed among hiQ's attorneys in the case.
Free Speech Violations Alleged
Among other arguments, hiQ claims that LinkedIn would violate the California Constitution's free speech clause by excluding it from what is effectively a public forum, even if LinkedIn servers are private property.
LinkedIn, which has more than 500 million members worldwide, contends that it needs to protect its users' data.
"Through a network of anonymous bots that circumvent LinkedIn's technical barriers, hiQ scrapes the personal information of hundreds of thousands of LinkedIn members without their consent. hiQ then sells 'intelligence' based on this surveillance to LinkedIn members' employers, who learn things that the members might not want their employers to know, including whether a member is a 'flight risk' employee," LinkedIn said in a court filing.
"Of course, hiQ claims that only good things could come of this, but offers no evidence of those benefits, and ignores that an employer could use its products to fire, demote, or otherwise punish employees it suspects of being disloyal," LinkedIn's attorneys contend.
hiQ's conduct "erodes the trust that LinkedIn has cultivated with its members," damaging the 15-year-old platform, LinkedIn's lawyers say. "hiQ never asked LinkedIn for permission to do this and for good reason: LinkedIn would have said no."
LinkedIn told the court it took steps to block hiQ access to its website and servers, but on June 30, the two companies reached a standstill with an agreement that will allow hiQ Labs' continued access to public LinkedIn profile data until U.S. District Judge Edward Chen rules on hiQ Labs' request for a preliminary injunction.
"This is a case with broad ramifications for free speech, competitiveness and the fair use of material available to all on the Internet. We are happy to have the opportunity to continue our work while these important matters are resolved," hiQ Labs CEO Mark Weidick said in a July 1 statement.
Google, Yahoo and Bing, among other companies, "copy and index large portions of the public parts of LinkedIn's website and display that information in their search engine results for all the world to see," Weidick said. "We know that LinkedIn wants to get into our business, and that's okay. We just don't think they should do so by illegally forcing out a competitor."
Dinah Wisenberg Brin is a freelance writer covering HR, health, business, entrepreneurship and logistics from Philadelphia, Pa.
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