No.
`
`
`
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`
`
`
`
`LINKEDIN CORPORATION,
`Applicant,
`
`v.
`HIQ LABS, INC.,
`
`Respondent.
`
`
`
`APPLICATION TO THE HON. ELENA KAGAN FOR AN
`EXTENSION OF TIME WITHIN WHICH TO FILE A
`PETITION FOR A WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS FOR THE
`NINTH CIRCUIT
`
`Pursuant to Supreme Court Rules 13.5, 22, and 30.3, LinkedIn Corporation
`
`
`
`
`
`
`
`
`
`
`
`
`
`(“Applicant”) hereby move for an extension of time of 32 days, to and including March
`
`9, 2020, for the filing of a petition for a writ of certiorari. The United States Court of
`
`Appeals for the Ninth Circuit issued its opinion on September 9, 2019 (Exhibit 1), and
`
`issued an order denying panel rehearing and rehearing en banc on November 8, 2019
`
`(Exhibit 2). Unless an extension is granted, the deadline for filing the petition for
`
`certiorari will be February 6, 2020. Applicants are filing this application at least ten
`
`days before that date. See Sup. Ct. R. 13.5. This Court’s jurisdiction is invoked under
`
`28 U.S.C. 1254(1).
`
`1.
`
`This case presents a recurring and important question on which the
`
`
`
`1
`
`
`
`
`
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`
`
`
`
`LINKEDIN CORPORATION,
`Applicant,
`
`v.
`HIQ LABS, INC.,
`
`Respondent.
`
`
`
`APPLICATION TO THE HON. ELENA KAGAN FOR AN
`EXTENSION OF TIME WITHIN WHICH TO FILE A
`PETITION FOR A WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS FOR THE
`NINTH CIRCUIT
`
`Pursuant to Supreme Court Rules 13.5, 22, and 30.3, LinkedIn Corporation
`
`
`
`
`
`
`
`
`
`
`
`
`
`(“Applicant”) hereby move for an extension of time of 32 days, to and including March
`
`9, 2020, for the filing of a petition for a writ of certiorari. The United States Court of
`
`Appeals for the Ninth Circuit issued its opinion on September 9, 2019 (Exhibit 1), and
`
`issued an order denying panel rehearing and rehearing en banc on November 8, 2019
`
`(Exhibit 2). Unless an extension is granted, the deadline for filing the petition for
`
`certiorari will be February 6, 2020. Applicants are filing this application at least ten
`
`days before that date. See Sup. Ct. R. 13.5. This Court’s jurisdiction is invoked under
`
`28 U.S.C. 1254(1).
`
`1.
`
`This case presents a recurring and important question on which the
`
`
`
`1
`
`
`
`courts of appeals are divided: whether an entity that deploys anonymous computer
`
`“bots” that circumvent technical barriers and mass-harvests individuals’ personal
`
`data from computer servers—even after the entity’s permission to access those servers
`
`has been expressly denied by the website owner— “intentionally accesses a computer
`
`without authorization” under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.
`
`1030(a)(2).
`
`2.
`
`Applicant is LinkedIn Corporation, an online professional social
`
`networking site. Respondent hiQ Labs Inc. is a company whose business model is to
`
`scrape and harvest LinkedIn member data and repackage and sell it to employers to,
`
`e.g., alert them regarding which particular employees are likely looking for a new job.
`
`hiQ circumvented various technical measures that LinkedIn had put in place to
`
`prevent bots from scraping data. After LinkedIn sent hiQ a cease-and-desist letter
`
`communicating to hiQ that its bots did not have permission to access and scrape
`
`LinkedIn’s servers, hiQ sued LinkedIn in a declaratory judgment action asserting
`
`various state law claims. The district court granted a preliminary injunction to hiQ,
`
`holding that hiQ had presented “serious questions” regarding one of its state law
`
`claims, and rejecting as a matter of law LinkedIn’s argument that the CFAA
`
`preempted hiQ’s affirmative state law claims.
`
`3.
`
`The Ninth Circuit affirmed. It noted that the key question under the
`
`CFAA was whether hiQ had accessed LinkedIn’s servers “without authorization”
`
`when it scraped data after evading technical measures and after LinkedIn sent its
`
`cease-and-desist letter. The Ninth Circuit held that although LinkedIn had
`
`“ban[ned]” HiQ from its servers, a ban was distinct from refusing authorization, and
`
`
`
`2
`
`
`
`that accessing publicly-available sections of a website could never be “without
`
`authorization” under the CFAA. Ex. 1, at 26. The Ninth Circuit further held that any
`
`privacy interests that LinkedIn members held in their personal data was outweighed
`
`by hiQ’s interests in maintaining its business model. Id. at 16.
`
`4.
`
`The issue presented here is the subject of disagreement among the
`
`circuits. The Ninth Circuit’s decision conflicts directly with a decision of the First
`
`Circuit, which held that where a publicly-accessible website bans data scrapers,
`
`further access by those scrapers is without authorization. See EF Cultural Travel BV v.
`
`Zefer Corp., 318 F.3d 58, 60-63 (1st Cir. 2003). Moreover, every district court to have
`
`considered the question has agreed with the First Circuit that a publicly available
`
`website can be accessed “without authorization” under the CFAA.
`
`5.
`
`Good cause exists for this application. During the interval allotted for
`
`preparing a petition for a writ of certiorari in this matter, undersigned counsel has
`
`been required to devote time to numerous matters, including United States v.
`
`Blaszczack (2d Cir. Nos. 18-2811, 18-2825, 18-2867, 18-2878) (petition for panel
`
`rehearing or rehearing en banc due on February 3, 2020); Wells Fargo Bank, N.A. et
`
`al. v. Estate of Phyllis M. Malkin (11th Cir. No. 19-14689) (opening brief due February
`
`5, 2020); United States House of Representatives v. Texas (S. Ct. No. 19-841) (reply in
`
`support of certiorari due shortly after brief in opposition, which is due on February 3,
`
`2020); Crystallex Int'l Corp. v. Bolivarian Republic of Venezuela, (3d Cir. Nos. 18-2797,
`
`18-3124, 18-2889) (petition for certiorari due February 19, 2020). The requested
`
`extension of time will allow counsel the additional time that is necessary to prepare a
`
`well-researched and comprehensive petition. The requested extension will also allow
`
`
`
`3
`
`
`
`additional time for consultation with potential amici.
`
`For the foregoing reasons, Applicant requests that an extension of time to and
`
`including March 9, 2020 be granted, within which time Applicant may file a petition
`
`for a writ of certiorari.
`
`January 22, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
` /s/ Donald B. Verrilli, Jr.
`Donald B. Verrilli, Jr.
`Counsel of Record
`Jonathan Meltzer
`Munger, Tolles & Olson LLP
`1155 F Street, NW
`Seventh Floor
`Washington, DC 20004
`(202) 220-1100
`Donald.Verrilli@mto.com
`
`Jonathan H. Blavin
`Rosemary T. Ring
`Nicholas D. Fram
`Marianna Y. Mao
`Munger, Tolles & Olson LLP
`560 Mission Street, 27th Floor
`San Francisco, CA 94105
`(415) 512-4000
`Counsel for Applicants
`
`4
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
