If you know me at all, you know sourcing – especially all the tricks “hacks” and tools that go along with it – is my passion. So when I started playing on a new virtual platform that left me curious about information than I could find on the app (for more personal and obvious reasons than ever before), I started applying the skills I learned while training to be a ninja recruiter. I know it makes me a little creepy. Sharing the discovery is worth it!

Hacking will Happn

Happn is a proximity based dating app that streams the people you “cross paths” with in real life. It requires a Facebook connection. When you are within a close distance of another user that fits your predefined parameters, they show up in your stream, and in the “Tinder” fashion, you either pass or like the person. Profiles show a first name, age, and employment or school information, as well as your common Facebook interests.

I realized two things very quickly. First, real time common interests requires an API call to Facebook. And second, capturing the API calls with a Packet Sniffer will yield Facebook profile ID’s. It honestly started with a match to someone that had a job listed that just didn’t seem right. I couldn’t resist peeking behind the scenes. As every sourcer out there knows, if you have a Facebook profile, about 90% of the time, you have EVERYTHING. Surprise! Mr. Hotshot was NOT actually a Managing Director at Google!

Exploit number two is the real goldmine for taking advantage of any proximity based application: using Mock Locations. As it applies to Happn, because you collect profiles based on people you “cross paths” with, changing your location, especially using an application that allows you to “jump around” in a predefined radius, drastically changes who you will see in your steam at any given time, as well as the number of people you have access to. For example, I work from home every day, next to Wrigley Field and all the bars that go along with it. My neighborhood has a “type,” but a simple spoof using another free application and amazingly, the entire demographic on my stream changed.

The Recruiting Application

What if you could turn invisible, stand in the middle of the Microsoft campus and collect Facebook profiles of people walking by or sitting at their desks in the buildings? By downloading two additional Apps and running them in tandem with Happn, you can do exactly that – at least for people using the application. Looking for lawyers? Position yourself in the courthouse or a building that houses a number of large law firms. This will also work to take advantage of any proximity based application and there may be a wealth of information to be obtained. It’s an interesting concept for other potential sourcing tricks. One only has to figure out how to use it to their advantage.

The Game Changing Factor

Why will this trick give you an advantage unlike any previous proximity recruiting “hack”? Training on using social check-ins to locate potential candidates to poach have existed for a long time! I remember being told about using Foursquare to locate people who check-in at corporate locations and conferences 5 years ago. But this strategy takes into account a statistic others don’t. Single people are more likely to change jobs. Think about it: there’s no partner to weigh in on the decision; less likely to be kids involved; more tendency for risk; and less ties and costs overall for relocation.
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The idea for using dating apps to find potential candidates has also been around for a while. But on most platforms, the question has always been “how do I appropriately contact these people? Messaging someone about a job – especially on an app that requires a ‘match’ to chat doesn’t seem like the best plan!” The solution? Use your ninja skills to pretext your way into a conversation on another platform! Get the Facebook profile and send the message there. Still wary? Use the information to match a LinkedIn profile or an email. The possibilities are endless!

Step By Step Guide for Happn
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FIRST: Download and set-up the following applications to run on your phone: Happn, Packet Capture and FakeGPS (The version that works best for this costs $1.99, but there is a free option). Get a feel for each of the Apps separately. I’m not going to give instructions on this.

Example: Finding Microsoft Employees

1. Open Packet Capture and run in the background with the SSL certificate
2. Open Fake GPS and set your location. The paid version allows you to set options where you “walk around” the area. For this test, I placed myself in the middle of the campus and walked around a 500m radius.
3. Open Happn and load profiles. As they pop up, click on each profile. You just need to open the profiles – nothing else is necessary.
4. Open Packet Capture and find the Happn calls to Facebook
5. Open the calls and look for the profile ID in the API call for each profile

Congratulations! You have entered the creepy space of “hacking” (or really just taking advantage of the back-end data calls of) mobile dating profiles. Now you can send a Facebook message or just use your ninja skills from there to do what you please with your new information.

Does this make you a Stalker?

Real time proximity information can be a dangerous toy for people that understand the implications and know how to take advantage of the data. Keep in mind, this trick sits in a legal grey area and definitely falls in the creepy stalker category. When you open a profile, Happn gives you information about when you crossed paths with a person, how many times you cross paths and how far away the person is currently. This gives you some serious stalking abilities, for example you will probably have a very easy time figuring out when someone is at home instead of work and approximately how far away they live from work too!

Legal Notes
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First, is this hacking? I can only speak to the process provided. If you connect any other tools, automate it, use fake profiles or throw some other ingredient from your “privacy be damned” arsenal into the cocktail, you (I can see your gears turning already [name withheld by editor]) will probably cross the line.

Packet Sniffing: There is absolutely nothing wrong with monitoring the network traffic on your own private network, especially on your cell phone. In fact – just as a side note, SCOTUS recently ruled that all that packet sniffing Google was doing a few years ago on open networks was also completely legal.

Mock Locations: There are times when this is a legal grey area. For example, you shouldn’t be using tools that mock your location so that you can watch shows that aren’t available to you. This is usually done by using a mock IP address however, not mock GPS broadcasts on your phone. Similarly, it might be a bad idea to set your GPS location to somewhere you wouldn’t actually be able to physically access for security reasons. It’s a stretch to say that collecting information by using your phone’s mock location to position yourself somewhere you can’t legally access “in real life” is a crime, but I don’t recommend it.

Terms and Conditions: As stated, don’t screw this up by adding a step I didn’t include. As to the terms and conditions of Happn, it is a French application to be construed under the law in France. Nothing I described appears to violate the user agreement of the application on its face, but I am not a French lawyer. Buyer beware.
Discrimination: This one is tricky. If you are actually looking for candidates with this tool, it would be best to work with a few other people that will allow you to capture the largest demographic possible. Talk to someone in your organization if you are worried about discriminatory effect.
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The caveat of the application is that if you are not in the age range of the person looking or if they see you and “X” you (aka Tinder’s “swipe left”) they will no longer appear on your stream. There are thigs you can and can’t do about this. You can do as much as possible to “dress-up” your profile. You can’t change your name, gender or age. They are tied to the Facebook profile you used to sign up for the service. It may be tempting to use a fake Facebook profile to circumvent some of these limitations. That will violate the terms of service for both applications and crosses the line for other complex legal reasons I won’t bore you with. It is a cool trick that has some limitations. Deal with it.

Originally Published 1/15/16 @ ERE - SourceCon

In a landmark decision on Monday, the Colorado Supreme Court decided that an employer is justified in firing an employee for prescribed, medical marijuana use. The employee, Brandon Coats is a quadriplegic who used marijuana to control leg spasms.

In Coats v. Dish Network, the state Supreme Court ruled against Coats, affirming the lower court’s decision and holding that

Many legal experts contend the court got it right, because its job is to interpret the law, not create new legislation.
By defining “lawful” under both state and federal law, the court avoided the widespread implications of exempting the application of any federal crime that is not mirrored by state law.

Specifically, the decision is precedent setting for any future situation where an employee is fired in Colorado for failing a mandatory drug test.

Because of this ruling, unless the legislature adds a provision that exempts the use of substances that are legal for medical use in the state of Colorado, or marijuana is finally allowed for medical use under federal law, the court’s interpretation will stand.

Given the nationwide movement to legalize the use of marijuana (see map), in particular for medical use, it might be time to exempt marijuana in the same way that other federally controlled substances are allowed when a valid prescription is provided. For example, most employers will exempt a positive result for amphetamine if an employee proves he has a prescription for the drug, despite the fact that it is undistinguishable from Meth on most drug tests.

Adderall is a Schedule II federally controlled substance (Cocaine is also Schedule II). Marijuana is classified as a Schedule I federally controlled substance, the same as heroin or LSD. On many drug tests, heroin shows up as an opiate, the same as many legally prescribed pain medications. Again, if an employee then provides proof of a prescription for Vicodin or Tylenol 3, the positive result is thrown out.

In light of this ruling, HR professionals may either celebrate the win, or start revising drug use policies. At least with medical marijuana patients, an employer knows exactly what they are dealing with, instead of accidentally employing a heroin addict that got her hands on a prescription for Vicodin.

Every year, as millions of college graduates scramble to score jobs and start working their way out of the six figures of debt they incurred earning that newly printed diploma, millions more will take their first tentative steps into the professional workforce in what’s increasingly becoming a rite of passage for the right to open the door to the right jobs: the internship.

With summer just around the corner, many workforces are already beginning to see the seasonal swell that comes with the inevitable intern influx.

For many employers, however, the initiation of internship initiatives has a somewhat more sinister side, as some of the world’s biggest brands gamble millions of dollars on unpaid internships, a practice that represents a significant compliance issue that many organizations wantonly ignore, despite the obvious risks involved in this endemic practice.

But be warned: if your company maintains an unpaid internship program, you’re playing with fire. And this year, more than ever, you’re likely to get burned.

The crackdown on unpaid or underpaid internships has significantly escalated over the past few summers – and even organizations with the most sophisticated HR functions have found themselves caught in the non-compliance net.

Head of the Class (Action)

Consider the case of media giant Viacom, which owns such properties as Comedy Central, MTV and Paramount Pictures, who recently found themselves the latest mega-corp to enter into a costly settlement agreement with former interns.

While the company has not publicly admitted wrongdoing, Viacom ultimately ended up agreeing to pay out  over $7 million to members of a class action, including interns employed across subsidiaries in both their New York and California offices from 2007-2013.

This sum, of course, far exceeds the cost of having actually complying with internship compensation guidelines to begin with – and defeats the purported purpose of having interns to begin with, as these six years worth of top talent represented in the class action suit are probably unlikely to be continuing their careers with an organization that burned them before they were even full time employees.

So, if you’re recruiting or managing interns this summer, or work for a company with an internship program, take heed. The days of enterprise indentured servitude, the exchange of credit and experience in exchange for free sweat equity, are long past. This development has been a long time coming.

Internship Programs and the FLSA

In 2010, the U.S. Department of Labor published Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act (FLSA), whose stated purpose is to “provide general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.”

That information must have been quite, well, informative, considering it catalyzed a wave of lawsuits and internship related litigation filed by former interns throughout the private sector – lawsuits which targeted some of the most blue chip brands and biggest employers in the U.S. Multiple multinationals, including Condé Nast, NBCUniversal, and Elite Model Management were forced to agree to pay out millions to former interns, most of whom were compensated with college credit while working alongside (and often performing identical job duties) with paid employees.

Much like classifying independent contractors, comparing the work interns perform to that which is expected of actual employees of the organization is a major factor in determining if the minimum wage and overtime provisions of the FLSA apply. In other words, if an intern looks like an employee, acts like an employee, quacks like…well, you get the picture.

Making Internships Pay Off: 6 Keys to Compliance

So, before taking the gamble and rolling the dice on recruiting unpaid interns, talent acquisition professionals might want to consider reexamining their own policies and reminding hiring managers or HR leaders of FLSA provisions – if for no other reason that if a requisition for an unpaid internship hits their desk, that recruiter assumes liability for a potentially costly compliance violation.

Which, if you like your job, is probably a position you don’t ever want to be in.

Here are some quick guidelines every recruiter or hiring pro needs to know to make sure that their intern recruiting targets the top talent at the head of the class while heading off any class action lawsuits:

1. The internship, even though it includes actual operation of the employer’s facilities, must be similar to the training that would be given in an educational environment.
2. The internship experience is for the benefit of the intern.
3. The internship does not displace regular employees, but works under close supervision of existing staff.
4. The employer that provides the training via an internship program derives no immediate advantage from the activities of the intern; on occasion, the internship might, in fact, actually impede said employer’s operations.
5. The intern is not guaranteed, nor necessarily entitled, to a paid position at the conclusion of the internship.
6. The employer and intern mutually agree that the intern is not entitled to wages for the time spent in the internship, and this understanding is established prior to the initiation of an internship.

If that req fails to meet any of the six factors outlined above, forget any aspirations you might have of having some starry-eyed college kid grabbing your coffee or being your gofer all day for free. As Katrina Kibben predicted in her post from earlier this year, “The Top 15 Employment Law Trends For 2015,” this is one of the biggest compliance issues facing employers today, and as the lawsuits keep stacking up this year – as do the massive settlement amounts employers must pay out to settle them.

This is one trend that’s not going anywhere. If, as many predict, the next major development is an actual enforcement action on unpaid internships by the Department of Labor itself, those already rising settlement numbers are going to look like chump change by comparison.

So, if you’re thinking about recruiting unpaid interns, think again.

For more information – and to make sure you’re protected, check out this Flash Training on Paid vs. Unpaid Internships or the FLSA Reference Guide.

When you’re a company with the size and scale of LinkedIn, you’ve basically got a big target on your back – and a long list of people out to get you. Or so it would seem from the flurry of lawsuits, most recently for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681,et seq. (see original article for full copy of the FCRA).

The issue at hand this time centers on LinkedIn’s “Search for References” functionality, a feature offered to all premium account holders and, it appears, to job applicants after they have directly applied for any position posted via LinkedIn’s “job postings” product.

In this potentially precedent setting class action lawsuit, filed October 9, 2014 in the Northern District of California, alleges that LinkedIn sold their reference functionality to prospective employers by marketing its ability to “obtain reports containing “Trusted References” for all job applicants who are members of LinkedIn.”

The class action lawsuit, filed in the Northern District of California on October 9, 2014, alleges that LinkedIn sold this functionality to prospective employers, marketing the ability to “obtain reports containing “Trusted References” for job applicants who are members of LinkedIn.”

In all actuality, the “reports” at issue in the lawsuit are nothing more than an aggregated list of people in the requestor’s network that worked at the same company as the subject user during the same time period. The last page of the lawsuit provides a sample report.

Whether or not the above “reports” meet the minimum criteria to fit the definition of a Consumer Report under the FCRA is questionable, at best. If the court, however, decides that LinkedIn is, in fact, acting as a Consumer Reporting Agency, and its “Search for References” function actually constitutes a background check or even a simple database search under the FCRA, than the employers whose recruiters, hiring managers or sourcers utilized LinkedIn’s referencing function in relation to any job candidate actually might be found liable for violating a variety of federal and state employment screening laws.

Lawyer Up: The Liability Isn't With LinkedIn

Even rookie recruiters know that an employee’s written authorization is absolutely required before requesting or initiating a consumer report. In the membership terms and conditions provided to LinkedIn Recruiter users, or even in general job applications, disclosures do not in and of themselves constitute an actual authorization of a consumer report on a candidate initiated by a potential employer. In fact, under the FCRA, a written authorization for an employer to obtain a consumer report must include no more information other than a signed authorization by an employee (15 U.S.C. § 1681b(b)(2)(A). 

This latest lawsuit levied against LinkedIn raises an issue that has, until now, flown largely under the radar of the world of HR and recruiting. LinkedIn has always refused to publicly self-identify or affiliate in any way with traditional job boards, resume databases or any other subset of HR Technology, positioning itself instead as a social network.  This, despite the fact that the entire Fortune 100 are paid subscribers with multiple seat licenses to LinkedIn’s Recruiter product.

LinkedIn Recruiter, in fact, is the most widely used and most profitable recruiting technology product on the market today, controlling a large share of an incredibly lucrative market in which it claims it does not compete.

Its penetration with both large and small employers alike, with agency and corporate recruiters, sourcers and sales reps, is almost complete.  But its their aggressive pursuit of the rest of the pie that the lawsuit addresses directly, in particular pointing to what appear to be contradictory marketing strategies simultaneously employed by LinkedIn:

“Though LinkedIn aggregates a significant amount of consumer information, LinkedIn represents to its members that it does not license or sell member content to third-parties to show to anyone else without the express permission of the particular member.

LinkedIn has multiple utilities for job seekers, recruiters and potential employers. 

LinkedIn allows businesses to post employment opportunities, and search for active and passive job candidates, and for LinkedIn members to search for, and apply for those employment opportunities. LinkedIn pitches itself to businesses as the “ultimate talent pool to source the best candidates for your hiring needs.” 

Conversely, LinkedIn pitches itself to consumers as “the one stop shop for your professional life,” allowing consumers to “connect to people, see job postings, get discovered for what you do best and more.” 

In fact, in LinkedIn’s most recently quarterly SEC financial filing for the second quarter of the year after market close on July 31, LinkedIn publicly asserted the claim to investors and the markets that there they’d passed the million job posting threshold on their platform, a milestone sure to spike confidence in the company.

Most HR Technology companies currently competing in an extremely commoditized market have already realized when it comes to recruiting, there’s no such thing as halfway in.

In fact, the litany of legal and compliance issues involved in offering a tool that’s intrinsically expected to drive such a large portion of the hiring process make almost any tool illegal unless that technology is explicitly designed and exclusively offered to direct employers.

This is why so many sourcing tools come into immediate question, and rightfully so, as to their viability as a core component of a fully compliant hiring process.

Corporate Human Resources, as a group, generally tend to find themselves very concerned, to say the least, when internal recruiters utilize tools that lack certain required privacy, anti-discrimination, and equal opportunity issues required to ensure compliance with the complex labyrinth of hiring rules and regulations.

What this most recent lawsuit has done, finally, is address what is an inarguable fact: that LinkedIn facilitates a false sense of being a legitimate professional network to its members while simultaneously profiting on the expansive and, apparently, expensive pool of talent that LinkedIn customers are willing to shell out millions of dollars for every year in the Quixotian quest to recruit top talent – even though the numbers show that they have no competitive advantage using LinkedIn recruiter, since they are paying to view identical databases to see identical profiles.

LinkedIn Lawsuit: More Liability Lawsuits Likely for Employers

It’s at this point the general public has become pretty much largely aware that for any social network, it’s the members themselves who are the product, an issue mainstream enough to fuel Ello’s spectacular boom and bust as a social network that actually valued its users – a salient selling point in a day where privacy violations are the expectation rather than the exception.

LinkedIn, however, has found in its referral product a unique way to package and monetize member data to both employers and consumer marketers while largely ignoring the mountain of extant protections involved for potential employers.

These issues are unique to LinkedIn, as companies like Facebook and Twitter, ostensible competitors until one considers that their lack of liability rests in that their exploitation of member data involves direct marketing to consumers, without the use of recruiters or sourcers (or marketers) as an intermediary.

Whether or not the Plaintiffs in this particular class action LinkedIn lawsuit have a leg to stand on, or whether LinkedIn will ultimately bear any liability for the actions of the employers ultimately using their referral product for any reason generally held to be non-compliant – which looks like a very real possibility.

If not in this suit than it will likely happen in a seemingly inevitable case coming soon to a circuit court near you – that you should probably start paying attention and start calling your employment attorneys.

Since LinkedIn first filed its complaint against HiringSolved back in January, the case and its developments have been highly publicized – and closely watched – throughout the HR technology and recruiting industries.

In its initial action, LinkedIn filed a lawsuit against unnamed defendants for, among other alleged violations, maliciously creating fake profiles and using Amazon Web Services as a smokescreen to hide the still anonymous defendant’s illicit pilfering of “LinkedIn data.”

Every company in the aggregator space is aware of LinkedIn. HiringSolved is the only company that has successfully navigated this issue. We have been tested. We have an agreement with LinkedIn and we know exactly what we can and cannot do. That gives us a big advantage over our competition.

We are already accelerating. Since the settlement was signed by LinkedIn, we have brought on two new investors and we are preparing to launch a new product. I’m thrilled to put this challenge behind us and once again focus my attention on delivering amazing products to our customers.”
While the case lasted for several months and was closely watched and analyzed by many recruiting, technology and legal pundits for its potential precedent setting scope, the settlement was ultimately reached extremely quickly and relatively fairly by the standards of civil litigation.  LinkedIn, represented by the white glove, blue chip law firm of Munger, Tolles & Olson LLP (described by The American Lawyer as an “army of trial lawyers capable of waging war“) could have permanently shuttered HiringSolved by burying the startup in an extensive, expensive legal battle.

HiringSolved, the David to the Goliath that is LinkedIn, was represented in the case by Agility IP Law, a boutique, low profile practice whose monthly legal bill would nevertheless likely exceed the entire cost of the settlement’s final sum had the litigation gone on in a protracted court battle.  In other words, HiringSolved couldn’t afford this civil action to reach any other resolution – and got off with a relative slap on the wrist.

The response from LinkedIn’s PR department?

It’s not often both parties walk away from the negotiation table with a settlement that makes both the defendant and plaintiff practically sing rainbows and sunshine – particularly in the Northern District of California, a notoriously contentious jurisdiction that’s a historic hotbed of technology related legal wrangling.

A closer look at the consent decree, however, shows that the real win for LinkedIn doesn’t lie in the $40,000 worth of chump change (for them) the settlement stipulates HiringSolved must cough up, but rather, in the injunctive language contained in the consent decree itself.  The judgement won by LinkedIn serves as a staunch warning to anyone it perceives as a competitor – current or future – that tries for a piece of the people search and data aggregation market.  That market, of course, while still expanding exponentially, already represents billions of dollars of annual spend.

HiringSolved, by contrast, managed to walk away from the lawsuit with a relative slap on the wrist, the settlement containing the legal equivalent of a finger shaking while being scolded “don’t do it again, or else!”  So, is the lawsuit’s seemingly win-win resolution what it seems?  The answer, not surprisingly, is no – and the loser in this case might end up being not just HiringSolved, but the recruiting technology industry.

In the wake of last week’s settlement, Recruiting Daily will take a closer look at the implications of the Consent Decree as well as a detailed analysis of the response in relation to the Amended Complaint, and an overview of how existing laws and judicial precedent apply to the allegations made in LinkedIn’s lawsuit.  If you’re not fluent in lawyer, that’s just my way of telling you to stay tuned for more coverage of this case in the days to come.

While the settlement is sealed, it should be noted that HiringSolved limited the admission of wrongdoing stipulated in the settlement to just two of the initial allegations piled on in a substantial laundry list of complaints originally outlined: that it created a lot of fake profiles, and that it programmatically copied and saved profile information.

Of course, that sounds suspiciously like LinkedIn’s business model.

It’s no secret that most recruiters have a love-hate relationship with LinkedIn. But whether they’re frustrated with price point, data privacy or overall efficacy, they now can add another reason to shake their fists at the company.  For over two years after their acquisition of Rapportive – a GMail plug in that aggregates contact information and social profiles in a slick sidebar seamlessly integrated with GMail users’ inboxes – the Mountain View based “professional network” made minimal changes to the product’s features or functionality.

But yesterday, everything changed – and LinkedIn sent a clear signal in their announcement that this incredibly effective tool was about to get a lot less useful.

According to LinkedIn, as of July 31, 2014, they will be removing both the “notes” and “Raplets” features from the product. Additionally, and most importantly, information populated from other social networks like Facebook and Twitter will be removed unless that contact also includes that information on their LinkedIn profile itself.

If you remember LinkedIn’s short lived “Intro” app (if you blinked, you probably missed it), you may be questioning LinkedIn’s next move, considering this first foray into leveraging their Rapportive acquisition into their core product offerings was, by any standards, a dismal failure.

But while it may seem, from a big data and CRM perspective, that Rapportive is set to take a giant leap backwards, the truth of the matter is that it’s a smart business move for the company, and one that makes perfect sense given their product roadmap and platform positioning.  A closer look reveals two major reasons most likely behind these big changes – and if these are indeed what’s driving LinkedIn’s Rapportive roadmap, users can expect a far more sweeping set of changes to the core LinkedIn platform in the not-so-distant future.

1. Maximize Profits
LinkedIn has a long track record of removing or blocking free functionality that they can monetize or somehow price at a premium.  LinkedIn limits its native CRM features and functionality strictly to premium users – and if GMail users, particularly those who use Google’s growing product suite, can access these premium features for free, the company is obviously eroding its margins and siphoning off a potentially lucrative revenue stream.

Further, if a member obtains this information without having to actually visit LinkedIn itself, then they are also less likely to visit LinkedIn.com, driving down the site visits and time on site statistics the company relies on as a primary part of its P/L.

2. Minimize Legal Exposure
The second – and far more important reason – likely catalyzing LinkedIn’s most recent move is due not to maximizing profits, but limiting legal liability.  LinkedIn currently has at least three lawsuits currently working their way through various stages of the legal system – and their outcomes, individually and collectively, will set highly influential precedents for recruiting and technology as we know it.

• LinkedIn v. Robocog, Inc (doing business as HiringSolved) and Shon Burton, a named defendant who’s also HiringSolved’s CEO, was a legal action initiated against the data aggregation startup in January of this year.  For more context and information, check out my earlier post, The LinkedIn Lawsuit: The Truth and Nothing But the Truth and LinkedIn V. HiringSolved: 3 Reasons You Should Care (Even If You’re Not In Recruiting) by Matt Charney.
• Perkins, et al. v. LinkedIn Corporation is a nationwide, class action lawsuit challenging LinkedIn’s practice of accessing users’ third party email accounts without the prior consent of their users, scraping, harvesting and storing e-mail addresses that appear in those accounts, and sending multiple reminder e-mails – ostentibly on behalf of the user – advertising LinkedIn to non-members and encouraging them to sign up and set up profiles on the site.  For more information on this class action suit, click here.
• In re LinkedIn User Privacy Litigation was LinkedIn’s motion to dismiss a putative class action lawsuit concerning LinkedIn’s allegedly misleading privacy policy statement, one that was denied under California’s Unfair Competition Law, Cal. Bus & Prof. Code §17200 et seq., which confirms the putative plantiffs’ allegations that the company had adequately alleged causation and injury as defined by case law precedent.

In light of these pending legal actions, LinkedIn’s decision to limit Rapportive’s functionality is an important – and prescient – move by the company, which effectively removes any user information not provided directly to the company by its end users from LinkedIn’s product portfolio and onsite experience, and requiring appropriate permissions to continue to access and aggregate associated information.

If a Facebook profile, for example, is listed on the Rapportive sidebar, but not the member’s LinkedIn profile or via direct opt in prior to the date when LinkedIn acquired the product, it begs the question: “how, exactly, did LinkedIn get this information in the first place?”

After its acquisition, Rapportive users found themselves suddenly covered by LinkedIn’s Terms of Service and privacy policy (most without realizing it) – a scary prospect in and of itself.  Don’t forget, LinkedIn owns the data from its acquisitions (including the recently scuttled CardMunch, Pulse and other platforms with associated databases of legacy users’ personal information) – and can remove that data, misappropriate it, or do whatever it so desires with the data provided by users who never agreed to provide it to the company.

With the market for “people aggregation” point solutions & products exploding and the number of GMail extensions and integrations growing, if you’re relying on Rapportive as a “go to” tool in your recruiting toolbox, it may be time to start looking at other options.  I know I will.

Last week and early this week the world was abuzz with news of various controversies regarding LinkedIn. The hacker lawsuit and conflicting messages about the future of group messaging functionality rocked the blog rolls. When it was finally clarified that free group messaging functionality had only been removed from recruiter accounts, I heard an array of reactions. This is one move that seems to lend itself clearly to the idea that, contrary to popular belief, the company can sometimes see the forest through the trees.

The unanticipated use/negative impacts LinkedIn was referring to in their explanation for removing the function? LinkedIn Recruiter users are sending way too many spammy messages to everyone that shows up on a top level search. Why do I think it is valid to remove the feature for the high paying LinkedIn Recruiter customers, but not individual users?

Bulk messaging features are only available with LinkedIn Recruiter. Even with regular premium accounts, messages can only be sent to one user at a time - and it's very difficult to send multi-recipient, spammy messages when you have to click through each profile individually to do it.  There's a big difference in awareness involved when someone is forced to cut and paste the same message to 50 people, as opposed to simply clicking "select all" and "send." In that context, I think it's a very smart thing for everyone to be concerned about and I'm glad the company addressed the problem.

However, I hope this is a temporary fix. Managers that I have talked to are already concerned because they don't want communications to go unrecorded if a recruiter runs out of Inmails and goes back to working outside the product to send a group member a message. What about the customers that were specifically sold on the compliance aspect of maintaining the records of all communications by their recruiters on LinkedIn?  Programmatically, one would think the company could figure out how require Inmails for the bulk messages, but continue to allow free messages to group members while communicating from within LinkedIn Recruiter.  

Now that the rumors have been put to rest, what are your thoughts? Do you have compliance concerns? Do you think there's anything else behind what may be looked back on as the "LinkedIn Message Scandal of 2014?" 

Word of LinkedIn’s recent lawsuit against unknown defendants is quickly spreading across the internet – and it’s not just about finding out who is scraping the site. There seems to be a clear message embedded in the 17-page complaint, filed on Monday by the company in the U.S. District Court for the Northern District of California.

Any activity on this ‘professional network’ which negatively impacts its product offering (read: revenue streams) will be pursued – and prosecuted., an unusually aggressive approach to litigation designed to prove that when it comes to misappropriating LinkedIn’s intellectual property, “you can run, but you can’t hide.”

LinkedIn claims that Defendants created thousands of fake profiles and used them to run automatic scraping programs via virtual machines hosted by Amazon Web Services. Amazon is not named in the suit, but will be subpoenaed by LinkedIn to discover the IP addresses of the alleged hackers. LinkedIn will then need to subpoena associated payment records and/or the ISPs connected to the addresses to track down the individuals. It will then amend the complaint to include the discovered Defendants. This is not an uncommon practice in data breach litigation.

The damages claimed by LinkedIn include various allegations as to disruption of the accuracy and integrity of the site because of the fake profiles, strain to its servers caused by the scraping programs and the time and resources wasted responding to the Defendants’ activity.

LinkedIn Recruiter: The Truth and Nothing But the Truth

But what’s really at the center of this lawsuit?  LinkedIn Recruiter.  According to the complaint, this remains one of LinkedIn’s “fastest growing services,” which has grown to over 16,000 customers and clients currently paying for access to this notoriously expensive service, including 90% of the Fortune 100.  According to the complaint, “corporate recruiters and headhunters purchase LinkedIn Recruiter memberships in order to search … the entire LinkedIn network for top candidate’s names and profiles … including passive candidates who might not be looking for a job.”

In fact, LinkedIn Recruiter is specifically mentioned in the complaint more than 10 times.[1]Among allegations threatening “ongoing and irreparable injury to LinkedIn,” the complaint states:

“By pilfering member data from the LinkedIn site, the Doe Defendants misconduct threatens to degrade the value of LinkedIn’s Recruiter product, which LinkedIn has invested substantially in over the years. On information and belief, the Doe Defendants, who have invested none of their own time and resources into developing and building the LinkedIn platform, have engaged in their scraping activities in an attempt to establish competing recruiting websites and usurp LinkedIn’s Recruiter product.“ [2]

LinkedIn has already shut down the fake accounts and implemented “additional technological barriers” to protect its data, however the lawsuit seeks additional enforceable protections (injunctive relief) as well as damages (money), attorney’s fees and “all profits attributable to the Doe Defendants’ wrongful acts to be proven at trial.”[3]

There are 6 claims listed in the complaint, and most of them require the company prove it used some form of technological barriers to protect itself. Scrapping is explicitly barred by LinkedIn’s User Agreement and its robot.txt file; however the company goes on to support its claims by listing additional technological measures it takes to protect its data. The practices include limiting the level of activity on individual profiles, monitoring IP addresses for unusually high activity and CAPTCHA protections to prevent automatic registration of multiple new accounts.[4]

Craigslist v. 3Taps[5] recently told us that, at least in the Northern District of California, tracking suspicious activity and blocking an IP address is sufficient to create a technological barrier for otherwise publically accessible sites under the meaning of the Computer ·Fraud and Abuse Act, 18 U.S.C. §1030 ct seq. LinkedIn is telling us in this lawsuit that they are tracking suspicious activity to IP addresses, not just individual user accounts.

The Implications

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

Read the full complaint here: LinkedIn Corp. v. Does, 14-cv-00068, U.S. District Court, Northern District of California (2014).

[1] Complaint, LinkedIn Corp. v. Does, 14-cv-00068, U.S. District Court, Northern District of California (2014).

[2] Id. at 10

[3]Id. at 12

[4] Id.

[5] Craigslist, Inc. v. 3Taps, Inc.,–F. Supp. 2d–, No. CV 12-03816 CR, 2013 WL 1819999, (N.D. Cal. April 30, 2013)

After attending a number of Recruiting and HR conferences this fall, I have noticed a few common themes. In particular, in both Europe and the U.S. the major focus has been on 1) “Big Data”; and 2) recruiters as marketing and sales people.These ideas are widely accepted – until I start to talk to recruiters about data privacy.

If I had a penny for every recruiter that argued with me that data privacy should not apply to common sourcing practices “because we are trying to help people get jobs”…..well, I'd have a lot of pennies.

I hate to burst the philanthropic bubble of my fellow sourcers, but guess what? The entire point of sales, and every sales pitch on the planet, revolves around helping people "get a better [insert product]." It just so happens the product we're selling is jobs. To quote Dan Pink, who keynoted last week's HR Technology Europe Conference, “Like it or not, we are ALL in sales now.”

If you still don't believe that simple fact, I want to tell you a story.

I was flying to a conference in Las Vegas to speak on legal issues for sourcers. After I drained the power on every electronic device I had with me, I started a conversation with the man sitting next to me. He happened to be a business intelligence consultant on route to an SAP event.  Never one to turn down a chance to speak geek, we chatted about the normal stuff techies talk about: data systems, global privacy, the NSA, and, well, you get the picture.  Which got us talking about the lawsuit in California against LinkedIn.

Although I personally doubt the merits of the case, I mentioned it will be interesting if LinkedIn’s practices of selling member information become general public knowledge. 

He looked at me with a blank stare… “what do you mean?”

I explained LinkedIn’s premium product offerings.

He said, “No kidding!? Is that why I’m constantly deleting a barrage of emails from recruiters trying to sell me on some job? So many of my colleagues have gotten off LinkedIn because of it – maybe I should too.”

Let me be clear: this issue isn't about Candidate Experience, and this has nothing to do about whether or not LinkedIn is, in fact, an effective recruiting tool.  The point is, for the typical professional, recruiters are on about the same level as those telemarketers who happen to know just when you're sitting down to dinner.  It struck me that overwhelmingly, instead of using LinkedIn to actually recruit and empower these hard-to-find professionals, we're being intrusive and annoying.

Consumers were pretty spooked when the data mining and predictive analytics used by retail stores came to light a number of years ago. Will the reaction be any different if people realize the extent of sourcing practices and tools used by recruiters? If mainstream media ran a story about the data federation/aggregation tools used by recruiters to find candidates, would the reaction of the general public be positive? Think about today’s recruiting tools…..

“You are looking for a candidate who is highly skilled at developing widgets – we’d like to introduce you to Johnny. This is his name, phone number and address. This is his employment experience and some recommendations. We have also crawled the web for additional information about Johnny for you. This is a summary of Johnny’s entire virtual life - it includes his Facebook profile, old blog posts, personal Twitter account and a graph of how you and Johnny are connected. We also found a few snippets of code Johnny wrote over the past 5 years and evaluated it for you - here is the score. You can use this information to personalize your first communication with him about the position you are trying to fill, or use this information to decide whether he is a fit for the role he doesn’t even know you are considering him for……”

I'm not disparaging these tools; in fact, as a sourcer, I think some of them are actually pretty awesome. Although I am an attorney, I also run a staffing company.  That means I get paid for placing candidates as quickly as possible.  This is where the intersection of HR and recruiting becomes a bit more complex when dealing with big data. There are compliance issues and data privacy concerns that someone trying to sell toasters, timeshares or catering services will likely never need to deal with.  While recruiting is sales, if your product is people, you're playing with a completely different set of rules and regulations than the guy selling appliances or ad space. 

But make no mistake – as recruiters, we sell jobs to candidates and candidates to hiring managers. If the methods we use to find information to contact people about the jobs we are trying to fill are ever called into question, the quasi-altruistic response, that  “I was trying to offer him a life changing opportunity in a new position with my company” probably isn’t going to be any different than “I was trying to sell him a better toaster."