An agency can track traveler loyalty points: Travel Weekly

Marc Pestronk

Q: For years my travel company has offered to help corporate accounts by tracking frequent flyer information of their travelers so that the account can instruct us to use the miles or points to purchase tickets for the traveler business that won them. Now I just read that American Airlines ordered the company that owns Points Guy to stop using members’ AAdvantage information on the Points Guy app. The Points Guy company then sued American in Delaware for a statement declaring such use to be legal, and now American has filed its own lawsuit in Texas seeking an injunction against such use. Who do you think will win, and if the Americans win, does that mean the service we provide to businesses is illegal?

A: I predict American will win on the grounds that the Points Guy app uses American’s trademarks without American’s permission. This is the same theory that the United States and the Southwest have successfully used to prevent websites from “screen scraping”, which is defined as the taking of information from the carrier’s website without his consent.

Additionally, American is suing in Texas, whose federal courts have been receptive to such lawsuits regarding website data by American and Southwest.

American is also pursuing several other legal theories, a few of which seem equally valid. American notes that this is a violation of AAdvantage’s user agreement for a flyer that permits “any third-party online service, including but not limited to any mileage management service , mileage tracking service, or mileage aggregation service” to access the member’s account. information, and American alleges Points Guy is tortiously interfering with this User Agreement.

Additionally, American alleges that Points Guy violated federal computer fraud and abuse law by accessing the carrier’s computer system without American’s authorization. In several cases, courts have also upheld this legal theory against screen scrapers.

I see several grounds for distinguishing between what your agency might do, on the one hand, and what the Points Guy app does, on the other. First, you are an authorized agent of American, which means that you are authorized to use the trademarks and website data to sell American’s services. This therefore dispenses with the theory of trademark infringement.

Second, when you’re tracking a traveler’s mileage, you’re not really a “third party”, because you’re the traveler’s agent, and you’re tracking miles by logging in as a traveler, just like a personal assistant. Under the law, a duly authorized representative is not a third party.

By the way, a travel agency can be an agent of both the supplier and the customer, even in the same transaction.

You are not violating the Computer Fraud and Abuse Act because you have the traveler’s authorization to access American’s computer system, just as you do when you make a reservation and issue a ticket for a customer.

So unless you start selling your service to non-customers, I wouldn’t worry about what you do for customers.

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