Jonathan H. Blavin

Issues atop the list of urgent cybersecurity concerns such as privacy, data security and platform liability have been key to Blavin’s career since he studied at Harvard Law School and worked as a research assistant at the school’s The Berkman Klein Center for Internet & Society.

“That interested me from the start, how to apply traditional legal frameworks to emerging technologies and how to build analytical tools to guide clients through them,” he said.

Blavin next clerked for Judge Richard R. Clifton at the 9th U.S. Circuit Court of Appeals. Clifton’s chambers are in Honolulu, but it wasn’t exactly a holiday at the beach. “I wish it had been a year of surfing and leisure,” Blavin joked. “You hear a broad array of cases from all over the circuit, and you get to see how cases look when they come up on appeal. Now, as I do cases, I think hard about how is the record I’m making going to look if it does go to an appeal.”

A prime example is Blavin’s representation of LinkedIn Corp. in a long-running data scraping dispute with a data analytics company. The matter is at the 9th Circuit for the second time after Blavin and colleagues obtained a cert grant from the U.S. Supreme Court and a remand to the circuit in view of the high court’s 2021 interpretation of the Computer Fraud and Abuse Act. The Supreme Court told the circuit, in light of Van Buren v. U.S., to reconsider its opinion that the plaintiff likely did not violate the CFAA. hiQ Labs Inc. v. LinkedIn Corp. 3:17-cv-03301 (N.D. Cal., filed June 7, 2017).

Earlier, Blavin obtained dismissal of hiQ’s federal antitrust claims when U.S. District Judge Edward M. Chen of San Francisco ruled the plaintiff had failed to show that LinkedIn engaged in anticompetitive conduct by serving the plaintiff with a cease-and-desist order over the scraping issue.

Judge Chen also enjoined LinkedIn’s blocking of the scraping and the circuit affirmed. “We believe that reading of the CFAA was erroneous,” Blavin said. “There has been a lot of litigation over the years balancing site’s ability to protect the data it posts versus whether others should be able to use it as they want.” After Van Buren, he contends, the balance tips in LinkedIn’s favor. The matter has been briefed and argued.

Blavin prevailed for client Square Inc. in September 2020, when a trial judge dismissed with prejudice a bankruptcy lawyer’s complaint that Square committed occupational discrimination under the Unruh Civil Rights Act by requiring users to certify they would not accept payments in connection with bankruptcy attorneys or debt collection agencies. The decision affirms online payment processors’ ability to enforce restrictions against high-risk and potentially unlawful transactions. White v. Square Inc., CGC-19-580267 (San Francisco Super. Ct., filed Oct. 24, 2019). The case is on appeal.

- John Roemer