EF Cultural Travel BV v. Explorica

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In EF Cultural Travel BV v. Explorica, Inc., 318 F.3d 58 (1st Cir. 2003), a unanimous panel of the First Circuit held that the use of a "scraper" or computer "bot" (software) "exceeded authorized access" within the meaning of the Computer Fraud and Abuse Act ("CFAA"):

Whoever ... knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $ 5,000 in any 1-year period ... shall be punished as provided in subsection (c) of this section.

18 U.S.C. § 1030(a)(4). The Court noted that the CFAA defines "exceeds authorized access" as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." Id. § 1030(e)(6).

The Court held that a website may expressly prohibit the use of scrapers or bots. But even in the absence of an express prohibition, as in the case at bar, the Court would infer an implicit prohibition.

Judge Michael Boudin wrote the opinion for the Court.

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