Debate of E-Bay's Police Friendly Policy Continues
Orin Kerr of the Volokh Conspiracy notes in today's post on E-Bay's policy that Ernest Miller of LawMeme made some good points regarding the "fraud" justification for E-Bay's policy recently. I agree and added my two cents in yesterdays post on this topic.
Orin posts that:
For what it's worth, though, I'm not sure how much privacy protection a subpoena rule affords. A prosecutor can have a grand jury subpoena issued "merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950). Documents produced under a grand jury subpoena are protected from disclosure by Fed. R. Crim. Pro. 6(e), whereas documents voluntarily disclosed are not, but law enforcement can access the information either way. This might explain eBay's policy, at least in part.
All Orin says here is true. However, the requirement of a subpoena is still a limitation on the reach of the government. While a prosecutor or an attorney for the government can have a subpoena issued almost on a whim, such a subpoena still requires that an attorney reach a decision regarding the need for information. E-Bay's policy requires no "legal" review or input whatsoever. Any fax from any police department, sherrif's office, or federal law enforcement agency will apparently do. Transferring this power to the police is clearly a problem. In most such agencies little if any oversight exists concerning information gathering and it leaves the information gathering process wide open to abuse.
Also, where a subpoena or other legal process is required, a record of the subpoena is kept and the information logged when it is received. At a minimum the law enforcement officer would be required to get a "thumbs up" from a prosecutor and a record of such requests would be kept. These are, to say the least, not significant hurdles, but neither is the hurdle of requiring the subpoena in the first place!
11:52:27 AM 
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