Data Scraping, Bots and First Amendment Rights

Data Scraping, Bots and First Amendment Rights

By Linda Henry


See all of Our JDSupra Posts by Clicking the Badge Below

View Patrick Law Group, LLC

A recent case involving a small workforce analytics startup fighting for its right to extract data from the largest professional networking site on the Internet may set a precedent for applying constitutional principles to social medial platforms.  hiQ Labs, Inc., the company seeking to protect its right to scrape publicly available data from LinkedIn, maintains that social media platforms should be treated as a public forum, and consequently, hiQ’s data scraping activities are protected by the First Amendment.

Data scraping has come a long way since its early days, which involved manually copying data visible on a website.  Today, data scraping is a thriving industry, and high performance web scraping tools allow individuals and businesses to take advantage of the massive amount of data available on the Internet by collecting specific data from targeted websites.  Many companies are increasingly reliant on big data as an important part of their business strategy and now view data scraping as a business necessity.

Just as data extraction methods have evolved, so have the legal theories used to either defend or challenge data scraping activities.  In one of the earliest cases challenging unwanted data scraping, eBay, Inc. v. Bidder’s Edge, Inc., eBay successfully used a trespass to chattels theory to obtain a preliminary injunction against an auction aggregator that was compiling a database of eBay’s auction listings by extracting data from eBay’s site.   Other legal theories currently used in cases involving data scraping include claims alleging breach of contract, violation of terms of use, copyright infringement, violation of the Computer Fraud and Abuse Act (CFAA), unfair competition, and now, in HiQ Labs Inc. v. LinkedIn Corp., violation of a company’s constitutional rights.

The saga began in May 2017, when LinkedIn delivered a cease-and-desist letter to hiQ, warning hiQ that it was violating LinkedIn’s terms of use as both a user and an advertiser by using bots to scrape data from LinkedIn users’ public profiles.  LinkedIn threatened to bring an action against hiQ under the CFAA and also advised that LinkedIn would be taking measures to block hiQ’s bots from scraping data on LinkedIn’s site.

hiQ responded by filing suit against LinkedIn, alleging that by blocking hiQ’s bots, LinkedIn sought to gain a competitive advantage through unlawful and unfair business practices and also violated the free speech clause of the California Constitution.  hiQ maintained that because LinkedIn is a public forum, hiQ had a free speech right “to access that marketplace on equal terms with all other people and that LinkedIn’s private property rights in controlling access to its computers cannot take precedence.”

In its Complaint for Declaratory Judgment, hiQ reminded the U.S. District Court that the California Supreme Court had clearly interpreted the free speech rights guaranteed by the California Constitution as precluding an owner of private property from prohibiting access if the property constitutes a public forum. hiQ argued that because the United States Supreme Court upheld this California constitutional right, LinkedIn cannot promise a public forum and public access, but then selectively exclude members of the public from such forum.

During oral arguments, hiQ argued that that social media sites such as LinkedIn are the modern equivalent of the town square, and that allowing LinkedIn to choose who can access the site is a violation of the First Amendment and will have grave constitutional consequences.  In response, LinkedIn drew an analogy between books at a public library and the publicly available information on LinkedIn.  LinkedIn argued that just as a public library conditions access to its books on compliance with certain library policies, LinkedIn conditions access to LinkedIn’s website on its privacy policies and terms of service.

U.S. District Court Judge Edward Chen granted the preliminary injunction requested by hiQ, and ordered LinkedIn to remove any technology within 24 hours that would prevent hiQ from accessing information on public profiles.  Judge Chen found that because authorization is not necessary to access publicly available profile pages, LinkedIn was not likely to prevail on its CFAA claim.  In addition, “hiQ has raised serious questions as to whether LinkedIn, in blocking hiQ’s access to public data, possibly as a means of limiting competition, violates state law,” Judge Chen wrote.  Although the court did not hold that publicly available websites should constitute a public form, the court clearly limited its decision on the free speech claim to the preliminary injunction.  LinkedIn has since filed an appeal with the Ninth Circuit, requesting that the court vacate the preliminary injunction.

The current legal battle between LinkedIn and hiQ could have wide implications on the future of data scraping, data ownership and the control of publicly available information that users post on social media sites.  Should, as hiQ argued, private social media platforms be treated as a public forum? Or, should social media sites have the right to limit access to publicly available information? And, do individuals that post information to social media sites agree that they are essentially making data available in a public square? As Judge Chen noted at the conclusion of oral arguments, “I’ve got a feeling it’s not going to end here.”

OTHER THOUGHT LEADERSHIP POSTS:

Data Scraping, Bots and First Amendment Rights

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below A recent case involving a small workforce analytics startup fighting for its right to extract data from the largest professional networking site on the Internet may set a precedent for applying...

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When 2017 Becomes 1984: Facial Recognition Technologies – Face a Growing Legal Landscape

When 2017 Becomes 1984: Facial Recognition Technologies – Face a Growing Legal Landscape

By Dawn Ingley


See all of Our JDSupra Posts by Clicking the Badge Below

View Patrick Law Group, LLC

Recently, Stanford University professor and researcher Michal Kosinski caused a stir of epic proportions and conjured up visions of George Orwell’s 1984 in the artificial intelligence (AI) community.  Kosinski posited that several AI tools are now able to determine the sexual orientation of a person, just based on a photograph, and has gone on to speculate that AI could also predict political ideology, IQ, and propensity for criminal behavior.  Indeed, using a complex algorithm, Kosinski accurately pinpointed a male’s sexual orientation over 90% of the time.  While technology advances frequently outpace corresponding changes in the law, the implications of this technology are alarming.  Could the LGBTQ community be targeted for violence or other discrimination based on this analysis?  Could “potential criminals” be turned away from gainful employment based on mere speculation about future behavior?  Would Facebook account photographs be an unintentional window into the most private facets of one’s life?  In a country already divided over sociopolitical issues, the answer to all of these questions unfortunately seems to be not if, but when.  The urgency for laws and regulations to police the exponential proliferation of AI’s potential intrusions cannot be overstated as the threat of a 1984 world becomes more of a reality.

Although Kosinski’s revelation is a recent one, concerns over facial recognition technologies and biometric data are hardly novel.  In 2012, Ireland forced Facebook to disable its facial recognition software in all of Europe—the EU data privacy directive (and the upcoming GDPR) obviously would have required explicit consent from Facebook users, and such consent was never requested or received from Facebook account owners.  Facebook was also required to delete all facial profiles collected in Europe.

In the United States, Illinois appears to be ground zero for the battle over facial recognition technologies, predominantly because it’s one of the few states with a specific law on the books.  The Biometric Information Privacy Act, 740 ILCS 14, (“BIPA”) initially was a reaction to Pay by Touch, a technology available in the mid 2000s as a means to connect biometric information (e.g., fingerprints) to credit card and other accounts.  A wave of privacy-geared litigation spelled doom for Pay by Touch and its handful of competitors.  With increasing adoption of facial recognition software into popular technology platforms (such as the iPhone) BIPA is front and center once again.

The scope of BIPA includes “retina or iris scan, fingerprint, voiceprint or scan of hand or face geometry…”  Key provisions of BIPA are as follows:

  • Prohibits private entities from collecting, selling, leasing, trading or otherwise profiting from biometric data, without express written consent;
  • Requires private entities that collect biometric data to protect such data using a reasonable standard of care that is at least as protective as the methods used by the entity to protect other forms of confidential and sensitive information;
  • Requires private entities that collect such biometric data to comply with written policies “made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information, on the earlier of: i) when the initial purpose for collecting or obtaining such identifiers or information has been satisfied; or ii) within 3 years of the individual’s last interaction with the private entity.

One of the latest lawsuits filed pursuant to this law is against Shutterfly, which is accused of collecting facial, fingerprint and iris scans without express written consent from website visitors, as well as people who may be “tagged” in photos (even though they may have never used Shutterfly’s services or held a Shutterfly account).  In a similar lawsuit, filed against Facebook in 2015, users also charged that Facebook was collecting and using biometric data without specific consent.

It is likely that Apple is monitoring these cases closely.  After all, iPhone X, according to Apple’s website, uses facial recognition technology to obtain access to the phone—in essence, a “facial password.”  Apple is quick to point out that it encrypts the mapping of users’ faces and that such actual data exists only on the physical device and not elsewhere (i.e., not in a cloud).

It is also likely that lawmakers in the other two states with statutes similar to BIPA are keeping a watchful eye on the Illinois docket.  Texas and Washington both have biometric laws on the books, along the lines of BIPA (though unlike Illinois, Texas and Washington do not provide a private cause of action).  While residents of these states can take comfort in legislative remedies available there, where does that leave residents of other states?  Given that the federal approach to privacy in the United States generally tends to be sector-specific (e.g., HIPAA for medical data; Gramm-Leach Bliley for financial institutions), it seems clear that change must surface at the state level.  Until then, state residents without legal protections are left with the following options:

  • Obscuracam: an anti-facial recognition app that, as its name suggests, obscures visual characteristics in those individuals photographed.
  • Opt-out whenever possible: Facebook settings can be modified so as to allow an account holder to both opt out of facial recognition technologies, and to delete any data already collected.  Users of Google+ have to affirmatively opt in to facial recognition technologies.
  • Tangible solutions: 3-D printed glasses are sometimes effective in disrupting and/or scrambling features, thereby thwarting facial recognition technologies.

However, realistically, until the law catches up with technology, the Orwellian threat is real. As the saying goes and as 1984 illustrates time and time again, “knowledge is power.”  And when knowledge gleaned from facial recognition technology falls into the wrong hands, “absolute power absolutely corrupts.”  For lawmakers, the time is yesterday (if not sooner) for laws to catch up with the break-neck pace of facial recognition technologies and the potential slippery slope of use cases.

OTHER THOUGHT LEADERSHIP POSTS:

Data Scraping, Bots and First Amendment Rights

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below A recent case involving a small workforce analytics startup fighting for its right to extract data from the largest professional networking site on the Internet may set a precedent for applying...

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PMI – An Insider’s Guide – Part 3: What to do When You’re Asked to Assist in a Potential Acquisition – Post-Integration Run Phase and the Wheels Have Come Off

This is the third in a series of three articles on post-merger integration, find the other two articles here and here.

It’s been months since your company was all over the news with a splashy acquisition and the fanfare has died down a bit.  There are rumors, quietly at first, but then persistently louder, that things aren’t going so well with the transition: the new employees are unhappy, the promised revenue isn’t flowing, and the sought-after efficiencies appear elusive.  Then the dreaded phone call comes from your manager: we need you to help fix what’s happening here.  In other words, we need you to follow the parade with a shovel.

Even if you weren’t tapped to assist with the acquisition of the target entity (“Target”) and weren’t included in the planning and execution of integration, it’s never too late to dive in and make a difference when things don’t seem to be working.  Here are three steps to take to try to right the ship:

  1. What Happened?  When an integration goes awry, everyone involved has an explanation for why.  If possible, spend time with the stakeholders to understand the strategy for the initial plan to purchase the Target, and try to discern if over time the rationale and strategy has changed (and if the planning was ever aligned to the changes); if Target legal team members came over in the acquisition, their perspective will be invaluable about how they operated previously and what best practices can be carried over that may have been missed earlier.  Even if the planning and execution of the integration ended up as a misfire, it still makes sense to understand what the initial plan was (if there was a plan) and what information the plan was based on.  Gather as much information as possible about the transaction, what the initial planning was, and listen to the participants about what the vision was.  As recommended in previous articles, reviewing the due diligence memo and any presentation decks about the acquisition will provide insights that will still be pertinent down the road.  Remember to speak with your counterparts in other functional areas involved in integration as more often than not challenges are interrelated and may cross over the various functional areas – you are likely to gain insights on how to address issues and tap into institutional knowledge by keeping your perspective broader than just the legal group.
  1. Don’t Ignore Culture.  Everyone is familiar with the quote attributed to Peter Drucker that “culture eats strategy for breakfast,” but what does this mean in the practical reality of one business acquiring another?  If the business decision has been made to acquire the Target entity, all too often companies will ignore or soft pedal the cultural differences between the two companies because other more obviously economic synergies exist.  At whatever point in the acquisition cycle you become engaged to assist with legal support, take the time to try to understand the Target entity and how its industry, size, location, and core values shape its culture.   Often, there is a tension between how a smaller Target entity ran in an entrepreneurial, free-wheeling fashion, fostering an environment where process was less important than creativity, and the larger acquiring company where strong adherence to process, policy, and protocol have led to disciplined execution and strong customer focus.  Often lawyers trying to manage or create a legal support model in these circumstances must balance Target’s expedient practices with established process.  Being able to create interim solutions that keep the work flowing, the revenue coming in, and customers satisfied will help offset the inherent challenges many people face when an acquisition and the inevitable integration displaces the regular work flow and cadence of the Target entity.  It’s important to be sensitive to how difficult adjusting may be to the Target’s workforce and their changing roles/responsibilities.   By listening to your new colleagues about what was working before but isn’t now, you will be able to come up with solutions to keep the work flowing while leveraging the best practices.  Ultimately, the best laid plans and the most articulate strategy will fall in the face of resistance from your new colleagues if they feel their culture and contributions are being ignored in the new model.
  1. Triage to Steady State.  Depending on what has gone awry with the integration, focus your efforts on standing up a day-to-day support model that will both engage the Target’s legal resources (if any), as well as leverage the core knowledge of your own legal team.   This may also be the time to engage the assistance of outside counsel to provide a fresh perspective on a legal support model and an unbiased view of the challenges.  Also by using outside counsel who are either already familiar with your own business and legal team or have extensive in-house experience, you can bring in an already proven source of support to help manage the workflow.  Trusted outside counsel also play a role in helping to disseminate information related to sensitive issues when the internal legal leads may need to be shielded from having to deliver more difficult messages.   Outside counsel will also be able to share best practices for legal support models that may be key to getting over the hurdle of interim support.  Often leadership may not know their plans for the Target entity in terms of running it separately or immediately integrating operations into existing functions or some variation.

Even in the scenario where everything seems to have gone wrong, there are still steps that can be taken to set the delivery of legal services to the Target entity on a firmer path.  High level strategic debriefings and Monday morning quarterbacking will go on for months trying to determine if the Target should have been acquired in the first place.  But you can make a difference now in the delivery of legal services by keeping an open mind to try to understand what happened in the first place, and to do that from as many perspectives as possible while remaining uncompromisingly critical, becoming a student of your Target’s culture and values, and making tactical decisions to get the legal function meeting deadlines and keeping up with the flow of documents.  Using trusted outside counsel at any stage of the acquisition to plan for, implement and triage integration can provide an outside perspective and legitimacy and ultimately turn a perceived failure into a win.

OTHER THOUGHT LEADERSHIP POSTS:

Data Scraping, Bots and First Amendment Rights

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below A recent case involving a small workforce analytics startup fighting for its right to extract data from the largest professional networking site on the Internet may set a precedent for applying...

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PLG Opens a Chicago Office

PLG Opens a Chicago Office

Patrick Law Group proudly announces the opening of its new Chicago, IL office. The firm’s office expansion and growth with the addition of the Chicago office will enhance the firm’s ability to deliver on our continued commitment to deliver superior Client service both nationally and in our local office markets.

Headquartered in Atlanta, Ga, Patrick Law Group is an agile, results-driven law firm that applies its talent, experience, and advanced technology infrastructure to give our Clients measurably superior results in a rapidly evolving business climate. We consider ourselves privileged to serve our Clients and we have a passion for helping our Clients meet their business objectives.

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For more information about the firm, please visit our website at www.PatrickLawGroup.com or contact Elizabeth (Lizz) Patrick at lpatrick@patricklawgroup.com or call 404 437 6731

PMI – An Insider’s Guide – Part 1: What to do When You’re Asked to Assist with a Potential Acquisition – Due Diligence Phase

PMI – An Insider’s Guide – Part 1: What to do When You’re Asked to Assist with a Potential Acquisition – Due Diligence Phase

By Peggy Abood


See all of Our JDSupra Posts by Clicking the Badge Below

View Patrick Law Group, LLC

See PMI – An Insider’s Guide – Part 1 here.

See PMI – An Insider’s Guide – Part 2 here.

See PMI – An Insider’s Guide – Part 3 here.

The Internet is jammed with articles reporting that most merger and [acquisition activity fails, and yet each year companies large and small continue to engage in the practice with the hopes that bringing onboard this particular piece of technology or that line of business will be the holy grail of their own success story.

One theory why mergers often fail is that process of acquiring a company: seeking the appropriate target, the due diligence process, and the merger negotiations are often led by a team of people who will have little to do with the target entity post-acquisition.   Once the purchase agreement is signed or closed, like a swat team, they move on to the next deal.  This team of corporate development executives are laser-focused on finding acquisition targets that meet a specific business need, such as a key piece of IP, a core group of personnel with specialized skills, a customer footprint or line of business in a coveted geography – in order to push forward the overall company goals and remain competitive in the industry.

Another factor in failed acquisitions is timing. The acquisition/merger process is often fast-moving, necessarily limited to a small number of senior executives, and highly focused on making a strong business case for why this particular target should be acquired.  The driver here is often on promised future revenue potential of the combined entity, with little to no focus on what happens after the acquisition is completed.

If we take the reports at face value that many if not most acquisition activity does fail, can post-merger integration (PMI) be one tool to turn around a failed buy?  This series of brief articles demonstrates that at any stage the legal group is engaged, there are steps that can be taken to make a successful integration.

_______________________

It’s the call no one in your legal group wants to get – too sensitive even for an email – and the voice at the other end delivers the news:  We’re looking to acquire a certain company and we need you to help us issue spot and prepare for the acquisition.  Now what?  Here are three points to bear in mind when asked to participate in a potential acquisition.

  1. Business First. Keep your business hat on even as you try to identify potential legal issues – at this phase your teammates in the working group may be skeptical of legal’s involvement other than the M&A team and outside counsel because the business is still trying to determine whether or not to acquire this target entity or another.  Because of this, try to think like your business colleagues and frame your questions in terms and examples that will matter to them as they think about potential risks and issues that could emerge in the target entity.
  1. Due Diligence Report. Obvious as it sounds, be sure to obtain a copy of the final due diligence report, likely generated by outside M&A counsel, to understand the full range of issues and considerations related to the target entity.  From this report you can start to piece together the initial critical pieces of information you will need to begin to strategize about what a legal support model may look like once the transaction is completed.  Focus on what geographies the target entity is based, what products or services it offers (and how they complement the acquirer’s existing product/service line), if any products or services are regulated or sold in a highly regulated country/region, if there are any existing legal staff to support this work (and if so, will they come over in the contemplated transaction), and how many client/vendor contracts you will need to transition.
  1. Secrecy is Paramount.  Don’t do anything that might jeopardize the confidentiality of the contemplated transaction.  This means you can’t discuss what you know with anyone else at the company except those who are already involved and are on the designated project team.  Because of the sensitive nature of acquisition activity, you don’t want to be the one checking out future colleagues on LinkedIn and raising suspicions of those who can see who has been looking at their profiles.  Restrict communications to the designated team and don’t share information with anyone else.

Taking a few small steps like these three can help you get out in front of the potentially large work flow that may come your way if the acquisition of the target entity proceeds and you are asked to help with planning for integration and integration implementation.  Remember to think like a business operator and not get too lost in potential legal issues while leadership makes strategic determinations about whether or not to pursue a given target; study the due diligence report for as much basic information about the contemplated deal as possible; be mature and discreet in your communications to show your ability to treat ultra-sensitive, potentially market-moving information, confidential.  All of these skills will serve you well, especially if you are called in to assist with the actual implementation planning if the acquisition proceeds.

OTHER THOUGHT LEADERSHIP POSTS:

Data Scraping, Bots and First Amendment Rights

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below A recent case involving a small workforce analytics startup fighting for its right to extract data from the largest professional networking site on the Internet may set a precedent for applying...

When 2017 Becomes 1984: Facial Recognition Technologies – Face a Growing Legal Landscape

By Dawn Ingley See all of Our JDSupra Posts by Clicking the Badge Below Recently, Stanford University professor and researcher Michal Kosinski caused a stir of epic proportions and conjured up visions of George Orwell’s 1984 in the artificial intelligence (AI)...

PMI – An Insider’s Guide – Part 3: What to do When You’re Asked to Assist in a Potential Acquisition – Post-Integration Run Phase and the Wheels Have Come Off

By Peggy Abood See all of Our JDSupra Posts by Clicking the Badge Below See PMI – An Insider’s Guide - Part 1 here. See PMI – An Insider’s Guide - Part 2 here. See PMI – An Insider’s Guide - Part 3 here. This is the third in a series of three articles on post-merger...

PMI – An Insider’s Guide – Part 2: What to do When You’re Asked to Assist in a Potential Acquisition – Between Signed and Closed Phase

By Peggy Abood See all of Our JDSupra Posts by Clicking the Badge Below See PMI – An Insider’s Guide - Part 1 here. See PMI – An Insider’s Guide - Part 2 here. See PMI – An Insider’s Guide - Part 3 here. Your day starts with headlines screaming across the Internet –...

PMI – An Insider’s Guide – Part 1: What to do When You’re Asked to Assist with a Potential Acquisition – Due Diligence Phase

By Peggy Abood See all of Our JDSupra Posts by Clicking the Badge Below See PMI – An Insider’s Guide - Part 1 here. See PMI – An Insider’s Guide - Part 2 here. See PMI – An Insider’s Guide - Part 3 here. The Internet is jammed with articles reporting that most merger...

Just Push the Button! Instagram’s Response to Influencers, Hashtags and Disclosures

By Farah Cook See all of Our JDSupra Posts by Clicking the Badge Below In April, the Federal Trade Commission (“FTC”), after reviewing Instagram posts by celebrities, athletes, and social media influencers, issued 90 letters reminding influencers and marketers about...

Mark Madness: Avoiding Trademark Landmines in College Sports

By Dawn Ingley See all of Our JDSupra Posts by Clicking the Badge Below Recently, the Washington Post reported on a Maryland high school’s thwarted attempt to expand its use of a green hornet mascot logo which resembles Georgia Tech’s famous “Buzz” mascot trademark. ...

LabMD – FTC Face-Off Continues Over FTC’s Data Privacy Authority

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below The U.S. Court of Appeals for the Eleventh Circuit recently heard oral arguments in LabMD, Inc. v. Federal Trade Commission, the long-running dispute over the FTC’s authority to impose liability...

IoT Device Companies: Add COPPA to Your “To Do” Lists

By Jennifer Thompson See all of Our JDSupra Posts by Clicking the Badge Below Last week, the Federal Trade Commission (FTC) updated its guidance on the Children’s Online Privacy Protection Act (COPPA).  COPPA and the FTC’s related COPPA Rules establish guidelines to...

Is Automation Really the New Outsourcing?

By Dawn Ingley See all of Our JDSupra Posts by Clicking the Badge Below As disruptive technologies continue to explode across the corporate technology landscape, a natural inclination from both business personnel and attorneys may be to draw parallels between these...

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