Orin Kerr of The Volokh Conspiracy responds to LawMeme's and Haaretz's recent articles on eBay's police-friendly privacy policies (Has eBay Turned Into Big Brother?). Kerr believes that eBay's policies are justified as a response to fraud.
This would be all well and good except that eBay's policies are not limited to fighting fraud. It is one thing for eBay to patrol its website for signs of illicit activity and take action against it, including notifying law enforcement authorities. I also have no problem with eBay responding to properly issued subpoenas. However, there is a problem with eBay's privacy policys when eBay provides information on its customers to any law enforcement agency that asks, regardless of the reason for the request. When Kenneth Starr subpoened Monica Lewinsky's book purchasing information from her book store, that request for information had nothing to do with fighting fraud. Yet, had Lewinsky purchased her books via eBay (a not uncommmon occurrence, eBay had 162,526 items matching "book" this morning), eBay would not have required Starr to get a subpoena.
Kerr compares eBay's policy to a store that has videotape surveillance to thwart shoplifters. But, will most stores turn over their surveillance tapes on their customers just because the police ask? Should they? Does Kerr really think it is a good idea that any business turn over its transaction information on its customers upon the mere request of a law enforcement agency?
UPDATE 2220 ET 20 Feb 2003
Orin Kerr responds, agreeing in part and adding additional details about subpoenas (More on eBay and Privacy).