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E-bay - Can a customer consent to waive his constitutional rights?
Posted by Nimrod Kozlovski on Thursday, February 20 @ 22:30:09 EST Civil Liberties
In Haaretz’s article on E-bay’s privacy policy I expressed my view on the kind of "consent" which is given to E-bay to hand private information to law enforcement authorities without a subpoena:

"The consent given in the user contract should be seen as 'coerced consent,' in the absence of any opportunity to exercise free choice, with no real alternative but to agree. This is most certainly not conscious consent."

I would further encourage us to question the constitutionality of a search which is conducted based on a "consent" given to a de-facto monopoly. Normatively, a contract should not be able to strip a customer acting in the civic sphere from his/her rights as a citizen in the public sphere. A private contract which is signed in such terms should not be able to mute the constitutional rights a citizen holds against the government.

The story was picked up by various mainstream media outlets and gained immense discussion on Slashdot. gillbates (106458) posted the following comment which I fully agree with:

"I think this says it all. We are rapidly becoming a society in which corporations can strip individuals of their liberties not by virtue of law, but by using onerous contracts.

Imagine if the utility companies forced a person to hand over keys to their residence when they signed up for service, so that the company could "inspect the premises in the interests of public safety". It wouldn't be long before the utility company would realize that they can make additional income by "renting" your key to law enforcement agencies on demand. But you, the resident would effectively have no say in this - you either agree to their terms, or you do without gas/electric/phone service.

You see, the danger of this is that by "renting" the key, law enforcement no longer needs a warrant to search your house; you implicitly gave consent for entry to the utility company, who then resold that consent to law enforcement. It is these kinds of agreements which allow law enforcement to circumvent the checks and balances guaranteed by the constitution, and this is what makes them so dangerous.

How long will it be before our lives and liberties are entirely beholden to corporate interests?"

To see more about E-bay’s privacy policy discussion: Slashdot.

 
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