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The 1st U.S. Circuit Court of Appeals held Dec. 17 that an ex-employee of a student tour organizer violated his confidentiality agreement and quite likely the Computer Fraud and Abuse Act by using privileged information to assist in development of a “scraper” program to glean competitive information from his former employer’s public Web site. EF Cultural Travel BV v. Explorica, No. 01-2000 (1st Cir. 2001). The appellate panel affirmed an injunction imposed by the U.S. District Court for Massachusetts against defendant/appellant Explorica’s use of the program to elicit information from a student travel Web site maintained by competitor EF Cultural Travel BV. The panel said while it was not reaching the question of whether use of scraper programs violates the CFAA in every instance, the former employee’s breach here of a broad confidentiality agreement meant that his actions “exceed[ed] authorized access” of the Web site in violation of the CFAA. EF sought the injunction after several employees left to join Explorica, which was formed in 2000. EF specifically charged that Explorica Vice President Philip Gormley, EF’s former vice president of information strategy, was assisting designers in development of a “scraper” program to collect pricing and other information from the EF Web site, and that his assistance violated his employment agreement and the CFAA. In affirming the injunction, the 1st Circuit noted that Congress defined “exceeds authorized access,” as obtaining information that the accesser “is not entitled so to obtain or alter.” The court said that Gormley agreed not to disclose confidential or proprietary information, and there is ample evidence to show he breached that agreement and, thus, the CFAA. The court also affirmed the district court’s finding that EF would likely prove it had met the CFAA’s $5,000 damage threshold. The district court reasoned that while EF could not show “damages,” it could show “loss” of business, goodwill and the cost of diagnostic measures. The 1st Circuit panel noted that courts are divided on the issue of whether such a “loss” could be used to meet the threshold, but said it agreed with those courts that have interpreted the statute in that manner. See In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 521 (S.D. N.Y. 2001). Counsel for EF Cultural Travel BV: Nathaniel H. Akerman of Seyfarth Shaw in New York. Counsel for Explorica: Anthony M. Freeherry, James W. Nagle and R. David Hosp of Goodwin Proctor in Boston.

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