Internet Law 2005

Brooklyn Law School

Professor Wendy Seltzer, email wendy.seltzer@brooklaw.edu
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society at Harvard Law School

Week 13 - Readings

Introduction
Course Information
Syllabus
Useful Links
Current Assignment
November 29, 2005
Cybercrime and Other Pests

For further reading (optional):

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For every good thing, there are those who try to mess it up; the Internet is no exception. Put communications online and some will try to intercept or disrupt them; enable online commerce, and some will try online theft (not only of funds, but of data or identities). In many of our prior discussions, we have seen existing law applied or adapted to online activity. Here, we look into some areas of sui generis law, legislation aimed specifically at online problems: cybercrime and spam. Are these in fact areas where pre-Internet law, code, and markets fail? If so, does the new law address the failure or add to the confusion?

The Computer Fraud and Abuse Act (CFAA) is the major “anti-hacking” law. CFAA criminalizes “access[ing] a computer without authorization” or “exceeding authorized access” to a computer system or network. Over its history, the statute has been expanded from a narrow class of federal and financial institution computers to any computer used in interstate or foreign commerce. What is the difference between “accessing without authorization” and “exceeding authorized access”? Where is that distinction between outsiders and insiders relevant?

Consider how “authorization” for access is given or denied, especially in the context of a publicly accessible computer system. Many websites post “terms of service,” and many interactive systems show “banners” when a user logs in, e.g. “By logging onto this machine you agree to the TOS posted here: <http://www.speakeasy.net/content/internetservices/shelltos.html>.” Are these sufficient to make unwelcome use or access a crime? If it depends on the notice given to the system’s user, how might this notice compare with that sufficient to form a contract?

While junk mail is not new, it has expanded to new dimensions online. Businesses find email a cheap means of contacting targets, some of whom want some of the communications, many of whom do not. Unsolicited communications clog mailservers and inboxes. In response, service providers and end-users have turned to self-help: filters; blacklists (rejection based on keywords or IP addresses); whitelists (acceptance based trusted sender addresses or signatures such as DomainKeys); user verification (see, e.g., www.spamarrest.com); and blackhole lists. Skim MAPS, Introduction to the Realtime Blackhole List (RBL) servers, <http://www.mail-abuse.com/wp_introrbl.html> and Yahoo!, DomainKeys, <http://antispam.yahoo.com/domainkeys>.

Consider the transparency of these spam-blocking measures, especially when they operate at the ISP level. Do you know what spam-blocking, if any, is active on your email accounts?

The CAN-SPAM Act of 2003 was Congress’s response to increasing public complaint and to a patchwork of state laws. CAN-SPAM is often derided by its critics as the “You Can Spam” Act, many of whom complain that it preempted more powerful state laws. What does CAN-SPAM actually prevent? What are its enforcement mechanisms? Does the law solve problems code did not?

Computer Fraud and Abuse Act (CFAA), 18 USCS § 1030 (2005)


§ 1030.  Fraud and related activity in connection with computers

(a) Whoever--
   (1) having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph (y) of section 11 of the Atomic Energy Act of 1954 [42 USCS § 2014(y)], with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
   (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains--
      (A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
      (B) information from any department or agency of the United States; or
      (C) information from any protected computer if the conduct involved an interstate or foreign communication;
   (3) intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, accesses such a computer of that department or agency that is exclusively for the use of the Government of the United States or, in the case of a computer not exclusively for such use, is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States;
   (4) 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;
   (5) (A) (i) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;
         (ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or
         (iii) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage; and
      (B) by conduct described in clause (i), (ii), or (iii) of subparagraph (A), caused (or, in the case of an attempted offense, would, if completed, have caused)--
         (i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $ 5,000 in value;
         (ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;
         (iii) physical injury to any person;
         (iv) a threat to public health or safety; or
         (v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security;
   (6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if--
      (A) such trafficking affects interstate or foreign commerce; or
      (B) such computer is used by or for the Government of the United States; [or]
   (7) with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer;
 

shall be punished as provided in subsection (c) of this section.
 

(b) Whoever attempts to commit an offense under subsection (a) of this section shall be punished as provided in subsection (c) of this section.
 

(c) The punishment for an offense under subsection (a) or (b) of this section is--
   (1) (A) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(1) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph; and
      (B) a fine under this title or imprisonment for not more than twenty years, or both, in the case of an offense under subsection (a)(1) of this section which occurs after a conviction for another offense under this section; or an attempt to commit an offense punishable under this subparagraph;
   (2) (A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;
      (B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if--
         (i) the offense was committed for purposes of commercial advantage or private financial gain;
         (ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or
         (iii) the value of the information obtained exceeds $ 5,000; and
      (C) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;
   (3) (A) a fine under this title or imprisonment for not more than five years, or both, in the case of an offense under subsection (a)(4) or (a)(7) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph; and
      (B) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(4), (a)(5)(A)(iii), or (a)(7) of this section which occurs after a conviction for another offense under this section, or an attempt to commit an offense punishable under this section;
   (4) (A) except as provided in paragraph (5), a fine under this title, imprisonment for not more than 10 years, or both, in the case of an offense under subsection (a)(5)(A)(i), or an attempt to commit an offense punishable under that subsection;
      (B) a fine under this title, imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(5)(A)(ii), or an attempt to commit an offense punishable under that subsection;
      (C) except as provided in paragraph (5), a fine under this title, imprisonment for not more than 20 years, or both, in the case of an offense under subsection (a)(5)(A)(i) or (a)(5)(A)(ii), or an attempt to commit an offense punishable under either subsection, that occurs after a conviction for another offense under this section; and
   (5) (A) if the offender knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for not more than 20 years, or both; and
      (B) if the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for any term of years or for life, or both.
 

(d)
   (1) The United States Secret Service shall, in addition to any other agency having such authority, have the authority to investigate offenses under this section.
   (2) The Federal Bureau of Investigation shall have primary authority to investigate offenses under subsection (a)(1) for any cases involving espionage, foreign counterintelligence, information protected against unauthorized disclosure for reasons of national defense or foreign relations, or Restricted Data (as that term is defined in section 11y of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)), except for offenses affecting the duties of the United States Secret Service pursuant to section 3056(a) of this title [18 USCS § 3056(a)].
   (3) Such authority shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General.
 

(e) As used in this section--
   (1) the term "computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;
   (2) the term "protected computer" means a computer--
      (A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or
      (B) which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;
   (3) the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession or territory of the United States;
   (4) the term "financial institution" means--
      (A) an institution, with deposits insured by the Federal Deposit Insurance Corporation;
      (B) the Federal Reserve or a member of the Federal Reserve including any Federal Reserve Bank;
      (C) a credit union with accounts insured by the National Credit Union Administration;
      (D) a member of the Federal home loan bank system and any home loan bank;
      (E) any institution of the Farm Credit System under the Farm Credit Act of 1971;
      (F) a broker-dealer registered with the Securities and Exchange Commission pursuant to section 15 of the Securities Exchange Act of 1934 [15 USCS § 78o];
      (G) the Securities Investor Protection Corporation;
      (H) a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978 [12 USCS § 3101(1) and (3)]); and
      (I) an organization operating under section 25 or section 25(a) of the Federal Reserve Act;
   (5) the term "financial record" means information derived from any record held by a financial institution pertaining to a customer's relationship with the financial institution;
   (6) the term "exceeds authorized access" means 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;
   (7) the term "department of the United States" means the legislative or judicial branch of the Government or one of the executive department enumerated in section 101 of title 5;
   (8) the term "damage" means any impairment to the integrity or availability of data, a program, a system, or information;
   (9) the term "government entity" includes the Government of the United States, any State or political subdivision of the United States, any foreign country, and any state, province, municipality, or other political subdivision of a foreign country;
   (10) the term "conviction" shall include a conviction under the law of any State for a crime punishable by imprisonment for more than 1 year, an element of which is unauthorized access, or exceeding authorized access, to a computer;
   (11) the term "loss" means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service; and
   (12) the term "person" means any individual, firm, corporation, educational institution, financial institution, governmental entity, or legal or other entity.
 

(f) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.
 

(g) Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B). Damages for a violation involving only conduct described in subsection (a)(5)(B)(i) are limited to economic damages. No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage. No action may be brought under this subsection for the negligent design or manufacture of computer hardware, computer software, or firmware.
 

(h) The Attorney General and the Secretary of the Treasury shall report to the Congress annually, during the first 3 years following the date of the enactment of this subsection [enacted Sept. 13, 1994], concerning investigations and prosecutions under subsection (a)(5).

United States v. Morris 928 F.2d 504 (2d Cir. 1991)


OPINION: NEWMAN, Circuit Judge.

This appeal presents two narrow issues of statutory construction concerning a provision Congress recently adopted to strengthen protection against computer crimes. Section 2(d) of the Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(5)(A) (1988), punishes anyone who intentionally accesses without authorization a category of computers known as "federal interest computers" and damages or prevents authorized use of information in such computers, causing loss of $ 1,000 or more. The issues raised are (1) whether the Government must prove not only that the defendant intended to access a federal interest computer, but also that the defendant intended to prevent authorized use of the computer's information and thereby cause loss; and (2) what satisfies the statutory requirement of "access without authorization." …

In the fall of 1988, Morris was a first-year graduate student in Cornell University's computer science Ph.D. program. Through undergraduate work at Harvard and in various jobs he had acquired significant computer experience and expertise. When Morris entered Cornell, he was given an account on the computer at the Computer Science Division. This account gave him explicit authorization to use computers at Cornell. Morris engaged in various discussions with fellow graduate students about the security of computer networks and his ability to penetrate it.

In October 1988, Morris began work on a computer program, later known as the INTERNET "worm" or "virus." The goal of this program was to demonstrate the inadequacies of current security measures on computer networks by exploiting the security defects that Morris had discovered. The tactic he selected was release of a worm into network computers. Morris designed the program to spread across a national network of computers after being inserted at one computer location connected to the network. Morris released the worm into INTERNET, which is a group of national networks that connect university, governmental, and military computers around the country. The network permits communication and transfer of information between computers on the network.

Morris sought to program the INTERNET worm to spread widely without drawing attention to itself. The worm was supposed to occupy little computer operation time, and thus not interfere with normal use of the computers. Morris programmed the worm to make it difficult to detect and read, so that other programmers would not be able to "kill" the worm easily.…

Morris identified four ways in which the worm could break into computers on the network: 
(1) through a "hole" or "bug" (an error) in SEND MAIL, a computer program that transfers and receives electronic mail on a computer;
(2) through a bug in the "finger demon" program, a program that permits a person to obtain limited information about the users of another computer;
(3) through the "trusted hosts" feature, which permits a user with certain privileges on one computer to have equivalent privileges on another computer without using a password; and
(4) through a program of password guessing, whereby various combinations of letters are tried out in rapid sequence in the hope that one will be an authorized user's password, which is entered to permit whatever level of activity that user is authorized to perform.

On November 2, 1988, Morris released the worm from a computer at the Massachusetts Institute of Technology. MIT was selected to disguise the fact that the worm came from Morris at Cornell. Morris soon discovered that the worm was replicating and reinfecting machines at a much faster rate than he had anticipated. Ultimately, many machines at locations around the country either crashed or became "catatonic." When Morris realized what was happening, he contacted a friend at Harvard to discuss a solution. Eventually, they sent an anonymous message from Harvard over the network, instructing programmers how to kill the worm and prevent reinfection. However, because the network route was clogged, this message did not get through until it was too late. Computers were affected at numerous installations, including leading universities, military sites, and medical research facilities. The estimated cost of dealing with the worm at each installation ranged from $ 200 to more than $ 53,000. …

DISCUSSION

…Section 1030(a)(5)(A) penalizes the conduct of an individual who "intentionally accesses a Federal interest computer without authorization." Morris contends that his conduct constituted, at most, "exceeding authorized access" rather than the "unauthorized access" that the subsection punishes. Morris argues that there was insufficient evidence to convict him of "unauthorized access," and that even if the evidence sufficed, he was entitled to have the jury instructed on his "theory of defense."

We assess the sufficiency of the evidence under the traditional standard. Morris was authorized to use computers at Cornell, Harvard, and Berkeley, all of which were on INTERNET. As a result, Morris was authorized to communicate with other computers on the network to send electronic mail (SEND MAIL), and to find out certain information about the users of other computers (finger demon). The question is whether Morris's transmission of his worm constituted exceeding authorized access or accessing without authorization.

The Senate Report stated that section 1030(a)(5)(A), like the new section 1030(a)(3), would "be aimed at 'outsiders,' i.e., those lacking authorization to access any Federal interest computer." Senate Report at 10, U.S. Code Cong. & Admin. News at 2488. But the Report also stated, in concluding its discussion on the scope of section 1030(a)(3), that it applies "where the offender is completely outside the Government, . . . or where the offender's act of trespass is interdepartmental in nature." Id. at 8, U.S. Code Cong. & Admin. News at 2486 (emphasis added).

Morris relies on the first quoted portion to argue that his actions can be characterized only as exceeding authorized access, since he had authorized access to a federal interest computer. However, the second quoted portion reveals that Congress was not drawing a bright line between those who have some access to any federal interest computer and those who have none. Congress contemplated that individuals with access to some federal interest computers would be subject to liability under the computer fraud provisions for gaining unauthorized access to other federal interest computers. See, e.g., id. (stating that a Labor Department employee who uses Labor's computers to access without authorization an FBI computer can be criminally prosecuted).

The evidence permitted the jury to conclude that Morris's use of the SEND MAIL and finger demon features constituted access without authorization. While a case might arise where the use of SEND MAIL or finger demon falls within a nebulous area in which the line between accessing without authorization and exceeding authorized access may not be clear, Morris's conduct here falls well within the area of unauthorized access. Morris did not use either of those features in any way related to their intended function. He did not send or read mail nor discover information about other users; instead he found holes in both programs that permitted him a special and unauthorized access route into other computers.

Moreover, the jury verdict need not be upheld solely on Morris's use of SEND MAIL and finger demon. As the District Court noted, in denying Morris' motion for acquittal, 

Although the evidence may have shown that defendant's initial insertion of the worm simply exceeded his authorized access, the evidence also demonstrated that the worm was designed to spread to other computers at which he had no account and no authority, express or implied, to unleash the worm program. Moreover, there was also evidence that the worm was designed to gain access to computers at which he had no account by guessing their passwords. Accordingly, the evidence did support the jury's conclusion that defendant accessed without authority as opposed to merely exceeding the scope of his authority.

In light of the reasonable conclusions that the jury could draw from Morris's use of SEND MAIL and finger demon, and from his use of the trusted hosts feature and password guessing, his challenge to the sufficiency of the evidence fails.…

EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58 (1st Cir. 2003)


OPINION:   BOUDIN, Chief Judge.

Defendant Zefer Corporation ("Zefer") seeks review of a preliminary injunction prohibiting it from using a "scraper tool" to collect pricing information from the website of plaintiff EF Cultural Travel BV ("EF"). This court earlier upheld the injunction against co-defendant Explorica, Inc. ("Explorica"). EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001) ("EF I"). The validity of the injunction as applied to Zefer was not addressed because Zefer's appeal was stayed when it filed for bankruptcy, but the stay has now been lifted.

EF and Explorica are competitors in the student travel business. Explorica was started in the spring of 2000 by several former EF employees who aimed to compete in part by copying EF's prices from EF's website and setting Explorica's own prices slightly lower. EF's website permits a visitor to the site to search its tour database and view the prices for tours meeting specified criteria such as gateway (e.g., departure) cities, destination cities, and tour duration. In June 2000, Explorica hired Zefer, which provides computer-related expertise, to build a scraper tool that could "scrape" the prices from EF's website and download them into an Excel spreadsheet.

A scraper, also called a "robot" or "bot," is nothing more than a computer program that accesses information contained in a succession of webpages stored on the accessed computer. Strictly speaking, the accessed information is not the graphical interface seen by the user but rather the HTML source code--available to anyone who views the site--that generates the graphical interface. This information is then downloaded to the user's computer. The scraper program used in this case was not designed to copy all of the information on the accessed pages (e.g., the descriptions of the tours), but rather only the price for each tour through each possible gateway city.

Zefer built a scraper tool that scraped two years of pricing data from EF's website. After receiving the pricing data from Zefer, Explorica set its own prices for the public, undercutting EF's prices an average of five percent. EF discovered Explorica's use of the scraper tool during discovery in an unrelated state-court action brought by Explorica's President against EF for back wages.

EF then sued Zefer, Explorica, and several of Explorica's employees in federal court. n1 Pertinently, EF sought a preliminary injunction on the ground that the copying violated the federal Copyright Act, 17 U.S.C. § 101 et seq. (2000), and various provisions of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 (2000). The district court refused to grant EF summary judgment on its copyright claim, but it did issue a preliminary injunction against all defendants based on one provision of the CFAA, ruling that the use of the scraper tool went beyond the "reasonable expectations" of ordinary users. …

What appears to have happened is that Philip Gormley, Explorica's Chief Information Officer and EF's former Vice President of Information Strategy, e-mailed Zefer a description of how EF's website was structured and identified the information that Explorica wanted to have copied; this may have facilitated Zefer's development of the scraper tool, but there is no indication that the structural information was unavailable from perusal of the website or that Zefer would have known that it was information subject to a confidentiality agreement.

EF also claims that Gormley e-mailed Zefer the "codes" identifying in computer shorthand the names of EF's gateway and destination cities. These codes were used to direct the scraper tool to the specific pages on EF's website that contained EF's pricing information. But, again, it appears that the codes could be extracted more slowly by examining EF's webpages manually, so it is far from clear that Zefer would have had to know that they were confidential. The only information that Zefer received that was described as confidential (passwords for tour-leader access) apparently had no role in the scraper project.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 As an example, the website address for an EF Tour to Paris and Geneva leaving from Boston is http://www.eftours.com/public/browse/browse_detail.asp?CTID=PTG%20V&GW=BOS Looking closely at the website address, one can determine that the destination code for the Paris and Geneva tour is PTG, while the gateway code for Boston is BOS.
 - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - 

…The issue … is whether use of the scraper "exceeded authorized access." A lack of authorization could be established by an explicit statement on the website restricting access. (Whether public policy might in turn limit certain restrictions is a separate issue.) Many webpages contain lengthy limiting conditions, including limitations on the use of scrapers. However, at the time of Zefer's use of the scraper, EF had no such explicit prohibition in place, although it may well use one now.

The district court thought that a lack of authorization could also be inferred from the circumstances, using "reasonable expectations" as the test; and it said that three such circumstances comprised such a warning in this case: the copyright notice on EF's homepage with a link directing users to contact the company with questions; EF's provision to Zefer of confidential information obtained in breach of the employee confidentiality agreements; and the fact that the website was configured to allow ordinary visitors to the site to view only one page at a time.

We agree with the district court that lack of authorization may be implicit, rather than explicit. After all, password protection itself normally limits authorization by implication (and technology), even without express terms. But we think that in general a reasonable expectations test is not the proper gloss on subsection (a)(4) and we reject it. However useful a reasonable expectations test might be in other contexts where there may be a common understanding underpinning the notion, cf. Terry v. Ohio, 392 U.S. 1, 9, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (Fourth Amendment), its use in this context is neither prescribed by the statute nor prudentially sound.

Our basis for this view is not, as some have urged, that there is a "presumption" of open access to Internet information. The CFAA, after all, is primarily a statute imposing limits on access and enhancing control by information providers. Instead, we think that the public website provider can easily spell out explicitly what is forbidden and, consonantly, that nothing justifies putting users at the mercy of a highly imprecise, litigation-spawning standard like "reasonable expectations." If EF wants to ban scrapers, let it say so on the webpage or a link clearly marked as containing restrictions.

This case itself illustrates the flaws in the "reasonable expectations" standard. Why should the copyright symbol, which arguably does not protect the substantive information anyway, Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991), or the provision of page-by-page access for that matter, be taken to suggest that downloading information at higher speed is forbidden. EF could easily include--indeed, by now probably has included--a sentence on its home page or in its terms of use stating that "no scrapers may be used," giving fair warning and avoiding time-consuming litigation about its private, albeit "reasonable," intentions.

Needless to say, Zefer can have been in no doubt that EF would dislike the use of the scraper to construct a database for Explorica to undercut EF's prices; but EF would equally have disliked the compilation of such a database manually without the use of a scraper tool. EF did not purport to exclude competitors from looking at its website and any such limitation would raise serious public policy concerns. Cf. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 516-18 (4th Cir. 1999); Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1351 (7th Cir. 1995).

[W]e conclude that the district court's rationale does not support an independent preliminary injunction against Zefer, [but] there is no apparent reason to vacate the present injunction "as against Zefer." Despite being a party to the case, Zefer is not named in the ordering language of the injunction; it is merely precluded, like anyone else with notice, from acting in concert with, on behalf of, or at the direction of Explorica to use the scraper to access EF's information.  

…[F]or future litigation among other litigants in this circuit [we] indicate that, with rare exceptions, public website providers ought to say just what non-password protected access they purport to forbid.

CAN-SPAM Act of 2003, S.877, 108th Congress

One Hundred Eighth Congress

of the

United States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Tuesday,

the seventh day of January, two thousand and three

An Act

To regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet.

SECTION 1. SHORT TITLE.

SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.

SEC. 3. DEFINITIONS.

SEC. 4. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL E-MAIL.

`Sec. 1037. Fraud and related activity in connection with electronic mail

`Sec.

SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.

SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR MISLEADING TRANSMISSION INFORMATION.

SEC. 7. ENFORCEMENT GENERALLY.

SEC. 8. EFFECT ON OTHER LAWS.

SEC. 9. DO-NOT-E-MAIL REGISTRY.

SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC MAIL.

SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.

SEC. 13. REGULATIONS.

SEC. 14. APPLICATION TO WIRELESS.

SEC. 15. SEPARABILITY.

SEC. 16. EFFECTIVE DATE.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

END