EF Cultural Travel BV v. Explorica, Inc.
274 F.3d 577
In the United States Court of Appeals for the First Circuit
Case Number 01-2000
Before Chief Judge Boudin, Senior Circuit Judge Coffin, and Circuit Judge Lynch
Decided on December 17, 2001

Relevancy of the Case: Whether using a scraper tool to collect information from a website results in a violation of CFAA?

Statutes and Provisions Involved

• The Computer Fraud and Abuse Act, 1986, 18 U.S.C. § 1030
• The Copyright Act, 1976, 17 U.S.C. § 10
• The Racketeer Influenced and Corrupt Organisations Act, 1970, 18 U.S.C. § 1961

Relevant Facts of the Case

• The plaintiff is the world’s largest private student travel organisation. The defendant organises global trips for high school students. Several Explorica employees previously worked at EF Cultural Travel.
• The defendant’s Vice President took the services of Zefer to access the plaintiff’s prices on student tours using a scraper tool to obtain a significant advantage over the plaintiff.
• The scraper programme used tour codes to access EF’s website repeatedly and gathered pricing details for those particular tours. It directed over 30,000 inquiries to the plaintiff’s website and recorded the pricing data in a spreadsheet.
• Explorica undercut EF’s prices consistently and began competing in the plaintiff’s tour business by printing its own brochures.
• The plaintiff alleged violations of the statutes mentioned above, along with several violations of state laws.
• The plaintiff further requested a preliminary injunction prohibiting Explorica and Zefer from using the scraper programme and demanded the return of all materials gathered by the scraper.
• On May 30, 2001, the District Court granted the plaintiff a preliminary injunction based on CFAA violations. Explorica, the defendant, has now appealed against the preliminary injunction, claiming it violates the First Amendment.

Prominent Arguments by the Counsels

• The defendant’s counsel argued that they solely contest the District Court’s judgement that the plaintiff will likely succeed on the merits. Information given to Zefer was not confidential, and hence, the confidentiality agreement is irrelevant. He further argued that the court’s finding that the plaintiff would most likely show that the violations satisfy the damage or loss standards under CFAA. The counsel argued that the diagnostic measures are not covered in the $5000 level prescribed by the statute. Any of the defendant’s activities did not inflict any physical harm or put any strain on the plaintiff’s website.
• The plaintiff’s counsel submitted that the defendant sent over 30,000 requests to its server. They intended to deceive to get proprietary pricing and tour information, along with sensitive information pertaining to the plaintiff’s technical abilities. The spreadsheet contains tour codes, which is proprietary information.

Opinion of the Bench

• The existence of an extensive confidentiality agreement means that the defendant exceeded authorised access.
• The District Court’s conclusion that the defendant most likely violated CFAA was not incorrect.
• The plaintiff obviously sustained a loss and disadvantage by having to spend a substantial amount of money to determine the extent of physical damage to their website caused by the defendant’s intrusion.
• While there was no harm to physical components, a fortunate outcome, it does not mitigate the loss of consultancy fees.
• However, this loss is not compensable as CFAA only allows for damage recovery if it results in a loss of $5000 or more.

Final Decision

• The court rejected the defendant’s appeal.