This seems really annoyingly tied to the technology of the web. If the public, non-authenticated web was built on a broadcast mechanism (like radio) instead of a request-response mechanism like HTTP, then this argument wouldn't apply. Hopefully the court considers whether it actually behaves more like the former than the latter.
If the public web was broadcast at a range of radio frequencies the result would indeed be different. But it isn't. In my view, law should be tied to reality.
The web isn't an abstraction, it's a network of privately owned servers responding to requests. This order tells a company that they can't program their servers to look at who is making the request and refuse to respond on that basis.
Even with request-response, I don't see how this would be to LinkedIn's benefit. Their server receives the request, and sends the response. If they don't want it to send the response, they can change it accordingly. If they send the response as usual, how could the request be trespassing?
But they aren't sending the response as usual. That's why HiQ sued them, and what the court said they must do: "To the extent LinkedIn has already put in place technology to prevent hiQ from accessing these public profiles, it is ordered to remove any such barriers"
