The John Doe lawsuit against Linked In

Filing a John Doe civil suit allows the plaintiff (the person or entity filing the suit) to have government/police like powers. It’s a lawyer game whose most frequent players have deep pockets. The powers are sometimes used to disrupt and intimidate smaller entities.

The most interesting piece of original work last week was Nicole Strecker‘s article on the latest LinkedIn lawsuit. Stecker, who may be the only lawyer in the world with a focus on sourcing, does all of the heavy lifting so that you can understand the John Doe lawsuit. She raises a number of interesting issues as she rings the alarm bell. (Here’s a copy of the lawsuit itself.)

If you have enough money, you can file a lawsuit that allows you to figure out who you’re suing after you start the ‘discovery‘ process. By suing ‘John Doe’, you (or, more likely, your company) get the privileges associated with discovery. You can issue subpoenas, request answers, request documents and take depositions. If the party you are seeking information from doesn’t comply, you can file a ‘motion to compel’ which can give you the assistance of the courts in collecting information.

In other words, filing a John Doe civil suit allows the plaintiff (the person or entity filing the suit) to have government/police like powers. It’s a lawyer game whose most frequent players have deep pockets. The powers are sometimes used to disrupt and intimidate smaller entities.

The use of the John Doe subpoena was perfected by the music business (as they chased down ‘pirates’) and the telecommunications people (as they chased down anonymous posters). When you don’t know who is hacking your stuff, you file a John Doe which gets you access to the IP addresses. It’s one short hop of discovery to the name.

Being able to subpoena witnesses and demand documentation is an awesome super power. The courts allow an enormous ray of possibilities as the legal team roots around for information and damage. It’s even fair game to look for things other than exactly what you said you were going to look for in the first pace.

Rich people and big companies get to do this. Prosecutors get to do this. Regular people can’t afford to do it, and have little in the way of protection from harassment when a company decides to go after them. A lawyer told me that “The balance of justice is served by the fact that you have to pay to do this stuff.”

I snorked diet Coke through my nose so hard that I ruined my shirt. Only lawyers believe the stuff that they tell each other.

Anyhow, Nicole did a fantastic job of summarizing the lawsuit. (Read the actual suit. It’s only 16 pages, well written and devoid of the usual lawyerese.) Here’s her boom line:

Read between the lines here, because this is where it gets important. Only two of the claims, Breach of Contract and Misappropriation, actually rely on the LinkedIn User Agreement. If successful, the other claims may set a precedent that would apply to anyone that accesses and scrapes the site, not just logged-in members.

LinkedIn may never actually find the individuals responsible for scraping data in this particular instance, but that may not be the point. This suit sends a message from anyone collecting information from LinkedIn profiles without its permission – especially companies that use the information to enhance a tool marketed to recruiters. If I ran a profile aggregation service like Dice Open Web, Entelo, Gild or TalentBin, I would certainly be keeping an eye on this case and taking a good look at my data collection practices right about now.  Because the potential claims against you could, like those listed in the Complaint, include:

  1. Violation of the Computer ·Fraud and Abuse Act, 18 U.S.C. §1030 ct seq.
  2. Violation of the California Comprehensive Computer Access and Fraud Act, Cal. Penal Code §502 ct seq.
  3. Violations of the Digital Millennium Copyright Act, 17 U.S.C. § 1201 ct seq.;
  4. Breach of Contract
  5. Trespass
  6. Misappropriation

I spend a lot of time helping people translate the words and behaviors of lawyers. The first objective of this article was to simply add some of the perspective that comes from simplification. The other objective is to point out the similarities between this moment and earlier history in the job boards.

To date, every interesting innovation in the employment/recruiting marketplace was first adopted by third party recruiters. The job board business famously made millionaires out of recruiters long before corporate bucks started flowing. At every step of the way, the third party recruiting crowd goes first because their livelihood depends on being first.

They have also been an uninspiring set of customers. Because the third party independent recruiting scene is so undercapitalized, it’s members come and go quickly and are very unlikely to commit to payments. There was a huge uproar when Monster tightened security, started busting people who shared accounts and monitored usage. They all but chased the third party recruiters off the service.

Each of the early job boards had a version of the story to tell.

This time around, LinkedIn is shoring itself up. As the average user becomes a corporate recruiter, the rues and terms will invariably evolve. Aggressive customers use spam like tactics at the expense of more civilized play. LinkedIn will inevitably shift its attention to higher margin customers who are easy to manage.

The current LinkedIn model of Recruiting (cultivating relationships with ‘passive candidates’) is a direct steal from the third party playbook. Some of their growth to date has come at the expense of the third party industry. By teaching corporate people how to act like professional recruiters, LinkedIn is clearly and consistently moving money back under HR’s domain.

The hammer will eventually come down. It’s not going to be an easy time for people who want to work outside of LinkedIn’s Terms of Service (whether or not it’s legitimate). The aggregate group of third party recruiters have no professional association and no meaningful entity that could countersue. There is no one to take up the cause and no one to field the various increments of enforcement.

That’s too bad because there are some important questions here.

  1. How is it possible for both the user and LinkedIn to own the same bit of data. The language in the Terms of Service is a delightful contortion here. It says something like “you own your data as it regards you. LI owns your data as it regards everything else.
  2. Where, exactly, is the value that LI delivers? Isn’t it something that happens as the result of having all that data? Isn’t it bigger than the individual records?
  3. Part of the problem is that we have no legal coverage for the whole ‘data makes its own gravy’ principle. When data generates more data, whose is it?
  4. Is the business of changing Ts and Cs on the fly without renegotiation really a legit form of contracting. On the surface, it doesn’t seem to stand up to logic. But, who is going to argue the customers’ POV
  5. Shouldn’t an operation like LinkedIn have an obligation to adequately represent the interests of its users in any legal action? Isn’t being a user really a form of ownership?

That’s just the beginning of this story. The headline will probably read, “Third party recruiting finally displaced” It would be a better story if it didn’t look so one sided.

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