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.”

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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.

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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.

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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

Your day starts with headlines screaming across the Internet – your company has acquired a particular entity (“Target”).  The office is buzzing with the news and potential impacts – what does this mean for my role now and in the future, and how much more work am I going to have to take on?  More often than not, the acquirer’s legal team will be tapped to coordinate the planning for post-merger integration and implementation.  So, what do you do when the first email of the day is from your boss informing you that you’ve been asked to manage the legal needs of the Target?  Here are three points to bear in mind to begin the process of that most nebulous of goals:  a successful integration after a headline grabbing acquisition.

Even if you weren’t tapped to assist at the due diligence phase (see my first article here: http://www.jdsupra.com/legalnews/pmi-an-insider-s-guide-what-to-do-when-28869), you can still make an impact and create the foundation for a successful transition, here’s how:

  1. Data Gather: Learn as much as you can, as fast as you can, about this transaction.  This will mean getting a copy of the final due diligence memo and any related or collateral materials that were prepared by the working team to help you better understand the acquisition purpose, the proposed business plan, critical milestones, and where the legal function fits in.  Take the time to reach out to the points of contact from the various functional areas involved in the deal, especially your Tax, HR, Finance, Facilities, Marketing, and IT teams to learn their perspective on the deal and what are their central issues.  Bear in mind that in an acquisition, legal issues are only one facet, and often not the most important facet, of the deal.  You will need to understand the challenges each of these areas are dealing with.  Those challenges and issues will often cross-over into Legal.  Forging strong internal relationships across functional teams will enable you to issue spot sooner and work with a team of subject matter experts to remediate issues quickly.  These cross-function colleagues can become your lifeline to making the deal an ultimate success as everyone is incented to want a deal they have been working on for months to work out.
  1. Plan for Day One and Execute on that Plan:  If you have been given the task to plan for legal support for the Target, start with the basics and work your way out to the more complex.  Don’t forget that one of the biggest pressure points you will face is ensuring that legal support (often measured in how quickly legal requests are responded to by the appointed legal team) flows as seamlessly the day after closing (when you and your company are now fully legally in charge of the Target) as it did the day before closing (when you weren’t in charge yet of the Target).  Some of these suggestions may appear obvious points but in the chaos of integration planning, even the obvious can get lost in the dust up, so keep a checklist with the following questions:
  • What contracting entities will be used after close?
  • Who has signature authority for those entities?
  • If there are to be changes to entities, make sure you are liaising with your tax and finance teams so entity changes are coordinated and you act in lock step with your SME colleagues in the other functional areas,
  • Are there any existing Target legal resources who will remain and assist and if so, try to spend time with them understanding their roles today, how the work flows, expectations about turn-around times;
  • Make sure there is a plan, even for the short term, to ensure legal support requests are responded to quickly after close.
  • Overall evincing a sense of calm and a good faith effort to control the chaos will help those around you be less afraid of what the future may hold and focus on the work at hand on a day-to-day basis, while the larger strategy gets sorted out.
  1. Be Nimble:  The best laid plans can be turned on their head as new information comes to light between sign and close.  What appeared to be a manageable number of client and vendor contracts is now several times larger, or the service that was thought to be unregulated is actually regulated and the required license or approval was never obtained, or the business leaders told the Target “nothing will change after you’re acquired” when the exact opposite is actually what’s happening.  The largest challenge in planning for and ultimately implementing a post-merger acquisition strategy is the general day-to-day chaos that everyone must learn to be comfortable with.   If you can become comfortable with lightly controlled chaos, you will have a better chance of succeeding and not pulling all of your hair out in the process.  If you continue to stay connected to your SME contacts in each functional area (having regular conference calls or in person meetings is the best way to do that), most likely a challenge you have in Legal is also one trickling into the other areas as well (Finance can’t recognize revenue they don’t know exists, Tax can’t move to wind down entities that still have people or contracts tied to them, etc.).  Leverage these relationships to quickly identify and respond to the changing landscape and help each other creatively problem solve in a way that helps everyone.  There is usually not just one way to solve a problem or address a crisis, so learning to be flexible and open in your approach will help you more easily and sanely shift course as needed during the planning and implementation phase of the integration.

Despite reports that most acquisitions fail, you can make a big difference in setting a foundation for success by following a few pointers.  Make sure you take affirmative steps to understand as much as you can about the acquisition process and rationale for acquiring the Target, devise a realistic plan to ensure continuity of legal support during the initial transition, and go outside of your comfort zone to be as nimble as possible to adjust plans and address issues as they emerge when facts on the ground change.

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By Jennifer Thompson See all of Our JDSupra Posts by Clicking the Badge Below In October 2016, Uber discovered that the personal contact information of some 57 million Uber customers and drivers, as well as the driver’s license numbers of over 600,000 United States...

IoT Device Companies: COPPA Lessons Learned from VTech’s FTC Settlement

By Jennifer Thompson See all of Our JDSupra Posts by Clicking the Badge Below In “IoT Device Companies:  Add COPPA to Your "To Do" Lists,” I summarized the Federal Trade Commission (FTC)’s June, 2017 guidance that IoT companies selling devices used by children will be...

Beware of the Man-in-the-Middle: Lessons from the FTC’s Lenovo Settlement

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below The Federal Trade Commission’s recent approval of a final settlement with Lenovo (United States) Inc., one of the world’s largest computer manufacturers, offers a reminder that when it comes to...

#TheFTCisWatchingYou: Influencers, Hashtags and Disclosures 2017 Year End Review

Influencer marketing, hashtags and proper disclosures were the hot button topic for the Federal Trade Commission (the “FTC”) in 2017, so let’s take a look at just how the FTC has influenced Social Media Influencer Marketing in 2017. First, following up on the more...

Part III of III | FTC Provides Guidance on Reasonable Data Security Practices

By Linda Henry See all of Our JDSupra Posts by Clicking the Badge Below This is the third in a series of three articles on the FTC’s Stick with Security blog. Part I and Part II of this series can be found here and here. Over the past 15 years, the Federal Trade...

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.

Our New Office is located in the heart of the Downtown Chicago area at 150 N. Michigan Ave. Ste 2800, Chicago, IL 60601.

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