“Web scraping” involves the use of software to collect data from the internet, which can then be sold to other users. On September 9, 2019, the United States Court of Appeals for the Ninth Circuit issued a decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783, holding that LinkedIn could not deny a web scraping company access to publicly available LinkedIn member profiles.
hiQ is a data analytics company that uses automated bots to “scrape” information which LinkedIn members include on their public profiles for the purpose of selling the collected data to hiQ’s business clients. LinkedIn sent hiQ a cease and desist letter, demanding that it stop collecting data from LinkedIn’s server. A California district court preliminarily enjoined LinkedIn from denying hiQ access to publicly available information in LinkedIn’s members profiles, and the Ninth Circuit affirmed.
Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.
For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.
On June 7, 2019, the United States Court of Appeals for the District of Columbia Circuit held that §230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1) provided immunity from suit to Google, Microsoft and Yahoo! when they are sued for re-publishing content on their websites which is provided by a third-party. Marshall’s Locksmith Service Inc. v. Google, LLC, 2019 U.S. App. LEXIS 17123, No. 18-7018 (D.C. Cir. June 7, 2019). Less than two weeks later, U.S. Senator Josh Hawley (R-MO) introduced legislation – the “Ending Support for Internet Censorship Act” – to remove the §230 immunity that protects companies such as Facebook, Twitter, Google, and the like unless such companies prove to the Federal Trade Commission (“FTC”) that their content moderation is politically neutral.
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On March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter. (See 
In Schulman v. Facebook.com, 2017 U.S. Dist. LEXIS 183110 (D.N.J. 2017), a federal district court in New Jersey dismissed a plaintiff’s lawsuit claiming that various media defendants censored his political speech on Facebook in violation of his constitutional rights. The court held that “All of Plaintiff’s constitutional claims against all Defendants fail as a matter of law because Plaintiff fails to allege that Defendants are state actors” and the U.S. Constitution “only applies to governmental actors – and does not apply to private parties.” A federal court in California reached a similar decision in Prager Univ. v. Google, LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal. 2018).
The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.
Last month, the judge presiding over Democratic National Committee v. The Russian Federation, et al., Civil Action No. 18-3501 (S.D.N.Y. Aug. 6, 2018), entered an Order granting plaintiff leave to serve defendant WikiLeaks via Twitter. The Order was entered after plaintiff demonstrated through a brief and supporting Declaration that diligent attempts to serve WikiLeaks through “a variety of methods, including emails to an address provided by WikiLeaks on its website, and by contacting counsel who have represented WikiLeaks in other matters” had proved unsuccessful.
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.” Thus, begins the 75 page decision of the Honorable Naomi Reice Buchwald, U.S.D.J. in Knight First Amendment Inst. at Columbia University v. Trump, No. 17-5205 (S.D.N.Y. May 23, 2018).
Very recently, in Ha v. Baumgart Café of Livingston, No. 15-5530, 2018 U.S. Dist. LEXIS 70781 (D.N.J. Apr. 28, 2018), a district court in New Jersey relied on Section 1927 to impose a $10,000 sanction against the plaintiffs’ attorney because of her social media posts. The attorney filed a motion beyond the time when she had been ordered by the court to file it and, to explain its untimeliness, she wrote a letter stating that she missed the deadline because of a family emergency that required her to leave the country. Her social media posts, however, proved that her excuse for missing the deadline was not true. After receiving a copy of the explanatory letter, opposing counsel objected to the untimely filed motion because, among other things, the attorney’s public Instagram page contained photographs of her in Miami and New York City during the time she claimed to have been out of the country. Screenshots of the Instagram pages were included with defense counsel’s objection.