Forwarded from: Marjorie Simmons <lawyer@carpereslegalis.com>
http://www.bizjournals.com/philadelphia/stories/2005/07/18/story5.html
Larry Rulison
Staff Writer
Philadelphia Business Journal
July 18, 2005
VALLEY FORGE -- An intellectual property law firm here is being sued
in federal court, accused of hacking into a well-known Internet
library to get evidence for a separate civil lawsuit it was defending
for a client.
The law firm, Harding Earley, Follmer & Frailey, is vehemently denying
any wrongdoing, although it admits it legally searched the library,
known as the Internet Archive, for old Web site pages produced by
Healthcare Advocates Inc., a Philadelphia company that sued Harding
Earley's client in federal court in 2003.
In that lawsuit, Healthcare Advocates sued a Blue Bell company with a
similar name called Health Advocate Inc. for misappropriation of trade
secrets, unfair competition, fraud and copyright and trademark
infringement, among other allegations. Both companies help consumers
deal with health insurance companies and claims. The judge in the case
ruled in favor of the defendants earlier this year before it even went
to trial, a decision that is now under appeal.
Although it has saved a whole host of digital material, including
texts, audio, moving images and software, the Internet Archive is
well-known among researchers and journalists for its popular search
engine called the Wayback Machine that allows people to look at old
Web pages that have since been changed or updated.
The Internet Archive is a nonprofit organization based in San
Francisco, and use of the Wayback Machine is free. Web site owners can
contact the group if they do not want their pages archived.
On July 8, attorneys for Healthcare Advocates from the firm of
McCarter & English sued Harding Earley and the Internet Archive,
claiming that employees at the law firm hacked into the Wayback
Machine to produce old Healthcare Advocates Web pages for discovery in
the 2003 civil case. Among the allegations are violations of the
Computer Fraud and Abuse Act by hacking into the Wayback Machine. The
company is also alleging that the Internet Archive did not adequately
protect the company's Web pages from viewing after the company took
recommended steps to block viewing in 2003.
The McCarter & English lawyer leading the case is Scott Christie, a
former federal prosecutor who most recently headed the computer
hacking and intellectual property unit of the U.S. Attorney's Office
in New Jersey.
Christie said the case is unlike any other he has ever seen. He does
not know of any other case where a law firm had been sued over this
type of allegation.
"Computer hacking is not an acceptable discovery technique," Christie
said. "I was sort of surprised by the prospect that a law firm would
be involved. Hacking, for whatever purpose, is unacceptable."
Although it has not been served with the lawsuit yet, Harding Earley
is denying the allegations. Partner John Earley said this week in an
interview that the suit was "merit less" and that no one at the firm
hacked into the Wayback Machine; instead, employees merely used the
Wayback Machine search engine as anyone else would. He said his
employees were looking for old Healthcare Advocates Web pages to help
prove his clients' case, but they never did anything illegal to get to
any information that was blocked.
"What didn't come up, we didn't get," Earley said. "Certainly, we
didn't do [hacking]. It's kind of ridiculous."
Officials at the Internet Archive were not available for comment
before deadline this week. The group has not been served with the
lawsuit, a spokeswoman said.
lrulison at bizjournals.com | 215-238-5136
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