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A Montgomery County, Pa., law firm is accused in a federal lawsuit filed last week of Internet hacking to get access to archived Web pages that were blocked from public view, but one of the firm’s partners insisted in an interview on Tuesday that “no hacking occurred” and that its use of the site Internet Archive was perfectly legal. In the suit, Healthcare Advocates Inc. v. Harding Earley Follmer & Frailey, et al., the plaintiff claims that during the discovery phase of a prior lawsuit, employees of the law firm violated the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act. Plaintiff’s attorneys Peter J. Boyer and Scott S. Christie of McCarter & English allege in the suit that employees of Harding Earley were aware that the archives of Healthcare Advocates’ Web site were blocked, but “successfully hack[ed]” into the system and “ finally managed to successfully circumvent the security.” Also named as a defendant in the suit is Internet Archive, a nonprofit organization in San Francisco that, according to the suit, was “founded to build an ‘Internet library’ with the purpose of offering researchers, historians, and scholars permanent access to historical collections that exist in digital format.” The suit alleges that Internet Archive had agreed to block public access to the archived historical content of Healthcare Advocates, but “failed to perform its duty.” In the 12-count complaint, the law firm is also accused of copyright infringement, civil conspiracy, trespass to chattels, trespass for conversion and intrusion upon seclusion. Internet Archive is sued for breach of contract, promissory estoppel, breach of fiduciary duty, negligent dispossession and negligent misrepresentation. In an interview Tuesday, plaintiff’s attorney Christie — a former federal prosecutor in the District of New Jersey where he headed the computer hacking and intellectual property section — said the case is about the right of Web site owners to protect their copyrighted material by insisting that archive sites block access. As for the law firm he sued, Christie said their actions were “antithetical to the way lawyers are expected to conduct themselves,” and that, as specialists in the area of intellectual property, “they should have known better.” In the opening paragraphs of the suit, the plaintiff’s lawyers contend there were “at least 92 separate acts of unauthorized electronic access” of Healthcare Advocates’ Web archives committed by “partners, associates, legal assistants and other employees of [the] Harding Earley law firm.” According to the suit, Healthcare Advocates is “a pioneer in the patient advocacy field,” and “assists the public in securing, paying for, and receiving reimbursement for necessary health care.” In June 2003, Healthcare Advocates filed a copyright and trademark infringement suit against a competitor, Health Advocate Inc. The suit was dismissed in February 2005 when Senior U.S. District Judge Robert F. Kelly concluded that the plaintiff’s claimed trademark was not entitled to protection because it had not attained any “secondary meaning.” That ruling is now on appeal. But in the new suit, Healthcare Advocates claims that during the discovery phase of the prior suit, Harding Earley — an intellectual property boutique in Valley Forge, Pa. — was hired by one of the defendants and set out to hack into its Web archives. The suit also alleges that Internet Archive promised that the archives would be blocked from public view, but failed to deliver on that promise. According to the suit, Internet Archive “archives the content of publicly accessible Internet Web sites that otherwise would disappear as it is updated, removed by its owners, or otherwise ceases to exist in an effort to preserve the cultural and historical value of this material.” On its site, the suit says, Internet Archive allows visitors to use its “Wayback Machine” to access any of its archived Web sites “as it existed on any or all of the capture dates as far back as 1996.” The suit also says Internet Archive has an “exclusion policy” that allows Web site owners to block public access. To take advantage of the policy, the suit says, Web site owners are instructed to install a file named “robots.txt” on their servers. “Internet Archive represented to Web site owners that as long as the denial text string was properly installed in the robots.txt file of the computer server hosting their Web sites, defendant Internet Archive would prevent individuals from gaining access to the archived historical content for their Web sites via the Wayback Machine,” the suit says. The suit alleges that when employees of Harding Earley at first attempted to access the archives, they were confronted with a screen that said: “We’re sorry, access to http://www.healthcareadvocates.com has been blocked by the site owner via robots.txt.” But instead of simply giving up, the suit alleges, Harding Earley set out to hack its way past the site’s security mechanism. The suit alleges that Healthcare Advocates has evidence that shows that Harding Earley employees “made approximately 711 unsuccessful attempts to access the archived historical content,” and that they ultimately succeeded in “circumventing the denial text string in the robots.txt file.” Healthcare Advocates learned of the “heavy volume” of inquiries about its archives, the suit says, and was told by a representative of Internet Archive that “an individual was ‘aggressively’ utilizing the Wayback Machine.” In that same conversation, the suit says, the representative of Internet Archive said that a security mechanism was “broken,” but that it had been reset and “the problem should be ended, for now.” Healthcare Advocates claims it was also told in that conversation that Internet Archive “can’t really protect against this sort of glitch on our end.” But even after it was assured that the problem had been fixed, Healthcare Advocates claims that the hacking by employees from Harding Earley continued. In an interview, attorney John F.A. Earley III said “the case is meritless.” Earley conceded that employees of his office had accessed the archives of Healthcare Advocates’ site, but insisted that none of them ever engaged in any “hacking.” Instead, he said, they simply “followed the directions” on Internet Archive’s site. When an archive is labeled as “blocked,” he said, users are instructed to “try again.” Earley said the allegations in the suit contradict themselves because Healthcare Advocates is accusing his firm of hacking into the site while at the same time accusing Internet Archive of failing to secure the site. The decision to investigate Healthcare Advocates’ archives was part of a “routine” investigation, Earley said, because prior versions of a litigant’s Web site often contain valuable information. In trademark and copyright cases, Earley said, defense lawyers often must investigate Web archives in order to establish key defenses. In the case of Healthcare Advocates, he said, one of the issues was an allegation of theft of trade secrets — a claim that could be successfully defended by showing that the claimed secrets were published on the Internet and therefore could not be claimed as true secrets. Earley predicted that the case would ultimately be dismissed because Healthcare Advocates will never be able to prove that Harding Earley’s employees did anything illegal. “I consider it a hassle,” Earley said. A representative of Internet Archive said the company would not have any immediate comment on the suit because its spokesman is on vacation in Vermont and was unable to review the complaint.

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