The Lost Omidyar Chapter: Part I
How a eBay, a libertarian hobby auction site, grew into an arm of the U.S.
National Security State.
Yasha Levine
Mar 27
A few months ago, I promised to reprint the unfinished chapter on Pierre
Omidyar that I ended up cutting from Surveillance Valley, my book about the
forgotten counterinsurgency history of the Internet.
I've mentioned Pierre on here recently. These days, he's best known as the
"good" billionaire who set up and funded The Intercept. He been a darling of
the progressive world and he's still praised by the biggest, most
adversarial names in media as an honorable and trustworthy man. And as I
recently found out, Pierre's influence on progressive and left-leaning
politics continues to expand. Turns out the Omidyar Network, Pierre's
massive investment apparatus, has been bankrolling things like tech worker
organizing and tech anti-trust initiatives. (I'll write more on that later).
So it's important not to let this guy out of our sight. I'd say he's one of
the scariest tech billionaires out there, and yet few people know much about
him.
When I was writing Surveillance Valley, I wanted to include Pierre's story
because it fit so perfectly into the larger thesis of my book. But for some
reason I couldn't make it work, and I abandoned the chapter half-written
back in 2017. But the story is still interesting and important enough to
publish, even if the chapter is not fully complete.
Below I'm publishing part one of what will probably be three or four
segments.
-Yasha Levine
PS: Mark Ames did the best - and pretty much the only - reporting on Pierre
Omidyar. Some of my own work is inspired and informed by his reporting,
which I think everyone should read. Here are some of his most important
stories:
. "eBay Shrugged: Pierre Omidyar believes there should be no
philanthropy without profit"
. "Keeping Secrets: Pierre Omidyar, Glenn Greenwald and the
privatization of Snowden's leaks"
. "Pierre Omidyar co-funded Ukraine revolution groups with US
government."
. "All the billionaire's men (Or: Shattered Glenn)"
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Part I: The Beginning
It was November 7, 2013 in New York. United Nations Ambassador Samantha
Power took the stage at the Waldorf Astoria Hotel in midtown Manhattan. Tall
and skinny with a gaunt face, she addressed a high-value crowd.
President Bill Clinton was there, as was Madeleine Albright, the former U.S.
Secretary of State - infamous for her cynical death calculus. But the star
of the night was oligarch investor George Soros. He was there to accept his
second Freedom Award, one of the top honors given by in America's foreign
policy establishment. It was the first time in history that the same person
was honored with two Freedom Awards. Winston Churchill only got a single
award, while Presidents George H. W. Bush and Bill Clinton were
embarrassingly forced to split one between then.
Samantha explained to the A-listers eating their dinners, the reason why
George Soros was being honored like this was his Open Society Institute and
the role it played in pioneering a new privatized way of doing foreign
policy.
"After the Cold War ended, beginning in Central Europe, his Open Society
Institute assisted countries in making the difficult transition from
authoritarian to democratic rule. Today, the Foundations are active on every
continent, striving to promote vibrant and tolerant democracies with strong
civic institutions and justice and health systems that work. It is rare that
a week goes by, in my new incarnation - and I mean this - where I don't meet
an ambassador to the United Nations, a head of state or minister, a
journalist or civil society advocate who didn't either graduate from the
Central European University, receive an Open Society grant, or once run an
Open Society office. That's how much George has populated the planet with
his dedication to human rights and human dignity," Samantha explained to the
crowd. She added that she owned George Soros a personal career debt. "I
myself would not have been able to spend years working on a long book on
genocide if not for George Soros and the Open Society Foundation's generous
support."
George had indeed made a global impact. More than a decade earlier, he had
built and perfected a hybrid private-public foreign policy model that melded
corporate foundations and private investment initiatives - backed up
government power - to project American imperial interests abroad. It was a
method perfectly suited for America's neoliberal age.
On stage, Samantha gushed about George's Open Society Foundation and his
pioneering work in melding corporate power and private investments with
American public diplomacy, and she pointed out that all sorts of private
foundations that were were emulating the Open Society model. These were the
heirs of George Soros philanthropic vision, she said. Among them: eBay
founder Pierre Omidyar and his wife Pam.
"The new philanthropists-the Soros-modeled philanthropists-donate money, but
they do so while they're still in the prime of their lives. And alongside
money, they contribute knowledge, entrepreneurial savvy, technological
knowledge," she said. "All the skills that they've brought to bear in the
private sector, they're able to apply to a world that really needs it. And
through his example, George has given definition to what it means to be a
modern philanthropist, to be a doer, paving the way for Bill and Melinda
Gates, Warren Buffet, Pam and Pierre Omidyar, and others. George was first."
Samantha Power was right. George Soros's tenure was indeed impressive.
________________________________________
George - who in his prime looked like a less attractive, off-Hollywood
version of Michael Douglas - was born in Hungary, survived the Holocaust,
immigrated to England after the war, and rose up to be one of the most
powerful and cutthroat financiers in the world - a man who could shake down
entire countries and extract billions from risky speculation. At the same
time, he built one of the most influential private foundations of the world.
In the United States, where he lived, he and his fund cultivated a
progressive image. He funded news outlets like The Nation magazine and
DemocracyNow. He sunk millions into criminal justice reform and bankrolled a
failed effort to oust Republican President George Bush from the White House.
The Republican right painted him as some sort of crypto-communist extremist
whose goal was to enslave America with "Cultural Marxism" aka
Judeo-Bolshevism. Abroad, his philanthropy showed its true colors. Put
simply: it was neoliberal.
Set up in the early 1990s to promote "democracy" in the former Soviet Union,
the Open Society Institute built a powerful influence-peddling network all
across the former empire. It cultivated future politicians and trained
budding businessmen and post-Soviet oligarchs. It bankrolled opposition
activists and political parties and had programs for journalists and
academics and all sorts of scholarships and education programs for a
generation of ambitious young people growing up in the rubble of the
communist world. His philanthropic machine churned out a diverse range of
types - from Prime Minister Viktor Orban in Hungary to Evgeny Morozov, the
public intellectual who got plucked out of Belarus to promote cyber
democracy and Internet Freedom.
At its heart, the foundation worked towards unified ideological goal: making
neoliberalism the religion of the land and making sure that the former
Soviet Union transitioned to a privatized, deregulated economy as quickly as
possible - and stayed that way. This was in line with George's personal
beliefs. But it also fit with his investment priorities. He was one of the
first and biggest investors in the former Soviet Union, and had swooped up
to buy up Russia's newly-privatized state assets for kopeks. So it was in
his interest to keep this market - rich with public and natural wealth - as
privatized and open to international capital as possible.
Talking to reporters, George was frequently candid about his interventionist
ambitions to shape the politics in the former Soviet Union, including a big
push to elect a crop of pro-western leaders in Ukraine. "If this isn't
meddling in the affairs of a foreign nation, I don't know what is!"
But the Open Society wasn't just the private initiative of a single
ambitious oligarch speculator. The organization was tightly integrated into
an overlapping network of imperial American government agencies: the State
Department, World Bank, National Endowment for Democracy, and USAID. In that
sense, Open Society functioned as a privatized arm of the American Empire.
And as a private initiative, it had a big advantage over its government
peers: a lot more freedom to work abroad without requiring tricky diplomacy
or political wrangling. Best of all, it was free of any public oversight or
scrutiny - and couldn't be directly died to the U.S. government.
That's why United Nations Ambassador Samantha Power was praising George that
night. It was also why she named Pierre Omidyar, the founder of eBay, as one
of George's heirs. She saw Pierre as continuing his successful Open Society
model - but with a new Silicon Valley cybernetic-utopian twist.
So who was this Pierre?
The Perfect Market
Pierre Omidyar - a young programmer with a small round head and a neat black
ponytail and who had an uncanny resemblance to Goofy - was born in France to
Iranian parents. He moved to the United States as a kid and grew up in
Hawaii, where he attended the same elite private school as future president
Barack Obama. After studying computer science at Tufts University, he moved
to Silicon Valley and went to work at General Magic, a company started by
several founding engineers of Apple Computer who were trying to develop an
early version of a tablet they called a "personal communicator."
Pierre was in Silicon Valley at the start of the dot-com boom, so it was
only natural that he try his hand at investing and playing the IPO
investment game. But he ran into something that all small-time investors had
to deal with: a rigged Wall Street system. When firms like Goldman Sachs or
Lehman Brothers took a company public, they structured the deal in a way
that allowed privileged insiders - usually other investment banks and
high-worth individuals - to buy shares at an exclusive low sale price
unavailable to regular investors. The practice was called "spinning" and
took all the risk out of investing, guaranteeing huge profits to a small
clique of insiders. And it made Pierre very upset.
He was a libertarian idealist. He believed in the ideals of a fully
transparent marketplace, where no one could operate from a position of
privilege and everyone had the same fair shot at making money as everybody
else. So he set out to create a solution: eBay Incorporated, an
auction-based sales platform built to work like Friedrich von Hayek's
textbook version of a libertarian marketplace: totally flat, transparent and
self-regulating.
He launched eBay on Labor Day in 1995. The auction site started small, but
quickly grew into one of the most successful Internet businesses on the
planet. Strangely enough, he started eBay because of a grudge.
eBay was more than just about creating a fairer market. To Pierre, it was
about individual empowerment and the creation of a new way of doing
business: an ecosystem where people would manage their own affairs, carrying
out commerce and making money without the need for hierarchical power
structures, official moderators, law enforcement or any oversight
whatsoever. He wanted to create a digital business version of Stewart
Brand's old hippy self-regulating cybernetic commune system - a place where
people dealt with one another on an individual level, sorted out their
differences one-on-one, worked through conflicts, educated one another,
policed their own community and kept out scammers and fraudsters. eBay
rolled out a few simple tools to help its community manage and police its
own affairs. A simple reputation system was set up that allowed sellers and
buyers to rate each other while a feedback forum provided a public community
space where users could meet and hash things out amongst themselves.
"I founded the company on the notion that people were basically good, and
that if you give them the benefit of the doubt you're rarely disappointed,"
he said not long after launching the company.
It was a great idealistic cyber-libertarian vision. Turned out that things
didn't really work that way in the real world.
eBay Police
eBay Inc. had its initial public offering on September 24, 1998. By the time
the market closing bell rang, Pierre Omidyar was a billionaire. He was only
31 years old.
The company simply took off. There was no other way of putting it. This was
the late 1990s, a time when people were just beginning to discover the
Internet. Buying things online was still a scary novelty, but that didn't
stop eBay doubling its user base every few months. Antique junk,
electronics, stuffed animals, old magazines and books, boats, motorcycles
and even cars - whatever strange fringe product you sought, chances are
you'd find it on eBay.
eBay's auction service was a truly runaway success. But the more it grew,
the faster Pierre's cybernetic utopia fell apart. It was brought down by
same exact thing that destroyed the old hippy communes of the 1960s:
scoundrels and unchecked power. Back then, the New Communalists created
cybernetic societies that were supposed to banish authority from their midst
and create freer decentralized systems based on self-organization and
relations between individuals. Instead, as hippy communes based on
cybernetic ideas like Synergia showed, they ultimately built micro-societies
that freed power to run unchecked, allowing charlatans and domineering
members of the commune to exploit those that were meeker and weaker.
And that's sorta what happened at eBay.
The vast majority of eBay's sellers were real and honest, but with no
internal mechanisms to regulate the marketplace or enforce trust, eBay
attracted scammers and fraudsters of all kinds - from petty criminals to
organized international crime rings. Fraud grew at an exponential pace. By
2001, almost half of all Internet fraud complaints submitted to the FBI came
from Internet auctions - and eBay was the largest auction site on the net.
"On a scale of one to ten, I'd give eBay a two for dealing with fraud. I got
nothing from eBay-no support, nothing. I couldn't even submit a fraud claim
because it was past the allotted time to file," a woman who lost $1,400 in
an eBay scam told Fortune Magazine. A man who lost $10,000 trying to buy a
1981 DeLorean said that he'd never trust the company with large purchase
ever again. "I'd only buy something small, like under $50."
The scams proliferated and grabbed headlines. More and more buyers
complained to the media about the company not doing anything to help them.
There were so many stories of fraud that eBay's trust levels plummeted. It
was an existential issue for eBay. Without trust, users would be too
skittish to shop. And if they didn't shop, eBay's revenue would drop and so
would it's share price.
The lack of trust threatened to sink the entire business, and it forced
Pierre to reconsider his cybernetic-hippy-libertarian approach to business.
The self-regulating system sounded good on paper and was in the short term
good for eBay's bottom line, but in the end it seemed incapable of dealing
with problems in the real world. "Our role at eBay has become more
political. The community really is no longer the way it was in the early
days. My philosophy then was, let the community govern itself. That
philosophy didn't really scale up," Pierre admitted in 2001.
It wasn't just that eBay's self-regulating model did not scale up - it had
to be replaced with the polar opposite: a gargantuan corporate police
apparatus that functioned as a privatized arm of the U.S. National Security
State.
Harvard Law professor Jack Goldsmith and Columbia Law professor Tim Wu
investigated eBay's transformation in their book, Who Controls the Internet.
What they found shocked them. "Our peek below the surface of eBay's
self-governing facade revealed a far different story - a story of heavy
reliance on the iron fist of coercive governmental power. Perpetually
threatened by cheaters and fraudsters, eBay established an elaborate
hand-in-glove relationship with the police and other governmental officials
who can arrest, prosecute, incapacitate, and effectively deter these threats
to its business model."
This transformation - from cybernetic dream into a police-backed big money
machine - started in 1999, not long after eBay's IPO. That year, the company
hired a law-enforcement power couple to run its new policing division:
Angela Malacari and her husband Rob Chestnut.
Angela was poached from the Drug Enforcement Agency and the Immigration and
Naturalization Services, where she spent her time "kicking down doors of New
York tenements and brothels." Her husband Rob came to eBay after serving as
a U.S. Assistant Attorney General in the eastern Virginia District, where he
handled high profile cases, including the trial of double agent Aldrich Ames
who spied for the Russians while working at the CIA. The two had deep ties
to America's intelligence and law enforcement apparatus and they assembled
an internal policing team that looked like it had come straight from some
kind of private spook mail-order catalogue. They also began to play around
with special software developed by a law-enforcement contractor called
InfoGlide, which could scan eBay's internal data and match it up with
information available on the Internet in order to trace fraudulent seller
accounts back to the real people who were creating them.
But that was just the beginning.
In 2002, eBay acquired PayPal, the most popular electronic payment provider
on the Internet, and along with it the company laid their hands on a suite
of sophisticated surveillance tools developed to catch fraud. Over time it
built up incredibly sophisticated surveillance and behavioral tracking
technology, allowing the company to scrutinized every single one of its
users in real-time: watching bank activity and financial transactions, and
monitoring purchases, browsing activity and even interaction with other
users.
These surveillance tools were so powerful that PayPal's founders would later
spin them off into a standalone intelligence contractor company: Palantir
Technologies. Named after the so called wizard "seeing stones" in J. R. R.
Tolkien's Lord of the Rings, Palantir was set up for one purpose: to take
the tools developed at PayPal and sell them to military and intelligence
agencies. It worked, and today Palantir is a favorite in the NSA and CIA and
boasts of a range of private-sector clients as well. The company was even
commissioned by the Chamber of Commerce to spy on, study and then attempt to
discredit a group of journalists and activists. In a lot of ways, Palantir
was the great-grandchild of the J. C. R. Licklider's Cambridge Project (see
Surveillance Valley): a platform that could ingest huge amounts of unformed
data and spit out answers - uncovering hidden relationships, finding hidden
financial assets, analyzing people's beliefs and motives and ultimately
predicting things before they ever happen. This was the kind of technology
that ran inside eBay's internal policing division.
Meanwhile, the company continued to grow at a ferocious pace. It opened up
operations in Canada, Brazil, Mexico, Malaysia, India, Russia, Romania, the
Czech Republic, Poland, Spain and a dozen other countries. As eBay's spread
around the world like a massive mushroom, its private police division grew
right along with it. By the mid-2000s, eBay's "Trust & Safety" division had
2,000 employees, a budget of $11 million and more than a thousand private
investigators who worked closely with intelligence and law enforcement
agencies in countries where it operated. Among other things, the company ran
seminars and training sessions and offered travel junkets to cops around the
world. eBay was proud of its relationship with law enforcement. It was also
proud of its open-records policy: it handed over user data without requiring
subpoenas or court orders.
"I don't know another Web site that has a privacy policy as flexible as
eBay's," eBay's director of law enforcement and compliance, Joseph Sullivan,
said during a confidential talk with U.S. law enforcement in 2003. The
meeting was closed to reporters, but Haaretz got its hands on a recording.
In it, Sullivan boasted that eBay handed over all the information
investigators requested about its users - all they had to do was ask.
"There's no need for a court order."
"The meaning is clear," wrote Yuval Dror, the Haaretz reporter who obtained
the tape. "One fax to eBay from a lawman - police investigator, NSA, FBI or
CIA employee, National Park ranger - and eBay sends back the user's full
name, email address, home address, mailing address, home telephone number,
name of company where seller is employed and user nickname. What's more,
eBay will send the history of items he has browsed, feedbacks received, bids
he has made, prices he has paid, and even messages sent in the site's
various discussion groups."
eBay functioned as a private police officer and investigator. It decided
what users should be tried for what crimes, it collected the evidence from
its own properties and compiled criminal cases and then handed them to the
proper jurisdiction for prosecution.
If a crime occurred in the pre-Internet world, a retailer or a bank would
first have to report a crime to the police, who would then work with a
prosecutor to pursue the case: subpoenaing phone and bank records, talking
to witnesses, interviewing suspects, following leads, putting people under
surveillance and eventually making an arrest. It was a lot of work and
usually the crimes went unsolved - they were simply not big enough to put so
much police effort into. With eBay, none of this tedious legwork was
necessary. The company had merged what used to be totally separate business
activities under one big roof: It monitored retail and banking activities of
all its users, tracked their behavior and communications, kept a watch on
their physical location, recorded their browsing patterns and financial
transactions. When a crime occurred, eBay investigated it internally and
built up its own case and simply handed it on a "silver platter" over to the
correct persecutor - whether in America or Bulgaria or Taiwan. These cases
were fully fleshed out and could be immediately taken to trial and won - and
they were.
In 2012, eBay's longtime Chief Internet Security Officer, David Culliname,
told an audience of top private security executives that his company's
security operations led to the arrests of 3,000 people around the world over
a period of three years - or roughly three people arrested per day.
Which cases did eBay decide to bring and why? Did it let some people off the
hook? Was the evidence fair? Was there a chance it could be used to wrongly
accuse and sentence suspects who were actually innocent? Was it fair to
partner with law enforcement in countries with notoriously corrupt criminal
justice systems?
eBay's internal investigative process is totally opaque, but what little we
do know does not inspire confidence. Take the case of PayPal 14, a group of
activists who tried to disrupt PayPal's website as a form of digital protest
against the company's financial blockade of Wikileaks.
War on Wikileaks
In 2010, an Australian hacker by the name of Julian Assange burst on the
scene by publishing a huge cache of secret Pentagon and State Department
documents leaked to his organization, Wikileaks. The information enraged the
U.S. government - and the State Department put pressure on financial
institutions to stop processing donations to Wikileaks. Eager to please,
Pierre Omidyar's eBay blocked payments to Wikileaks through its PayPal
banking subsidiary, as well. The block came on top of a bigger financial
blockade enacted by Bank of America, Visa, MasterCard, Western Union,
PostFinance and just about every other major financial institution, freezing
funds and cutting off donations and threatening Wikileaks' ability to
continue to operate. There was no legal reason for eBay to cut off the
funds. There was no court order or any other legal decision. It was done
strictly to please the State Department and the U.S. government - and to
protect shareholder value.
Wikileaks supporters saw the blockade as an attack on free speech. In
response, a group of activists loosely associated with Anonymous launched a
digital protest - a kind of virtual picket line that sought to disrupt the
services of the biggest banks, including PayPal, with a distributed denial
of service attack. Known as DDoS, it was akin to steering your browser to a
website and repeatedly hitting refresh. The idea is that if enough people
did this, it would overload PayPal's servers and make them crash. DDoS
attacks can be sophisticated, involving tens of thousands of computers
infected with "bots" that can be switched on to create a massive army and
pointed at a target website. But even the biggest attacks can only take
websites off for hours, maximum days.
The PayPal operation was pathetic and tiny in comparison. There were no bot
swarms, no massive hacking operations. To participate, people had to
manually download a special program called a Low Orbit Ion Cannon that
simply refreshed PayPal's site over and over and over again. An attack
coming from a source like this is inconsequential and can be filtered out
and neutralized by even the most rudimentary server-firewall setups. In
other words, the "attack" was an amateur job, it was a joke. It was just for
show - and in that sense it worked. The "attack" garnered headlines and
brought the free-speech issue at play to the public's attention. But it did
nothing to disrupt eBay's business. eBay even boasted that the protest had
no impact on their service. The "attack" didn't even register as a blip.
But behind the scenes, eBay was working with the Department of Justice to
build a case. The company wanted retribution.
At the crack of dawn on January 27, 2011, an FBI counter-terrorism task
force mounted coordinated raids on more than a dozen homes across America.
"I sat on my living room couch and watched 12-13 agents search my entire
home and seizing anything that was related to the internet or could possibly
store data. They also asked me about 500 times if I knew who the 'leader' of
Anonymous was. Which, of course, was impossible to answer," recalled Keith
Downey, a skinny 26-year-old programmer with ginger hair and a ponytail who
lived with his mom in Jacksonville, Florida. In the end, fourteen people -
mostly young adults, college students and self-taught techies who lead
unexciting and unremarkable suburban lives - were arrested and accused by
the Department of Justice of engaging in a criminal conspiracy to vandalize
and damage PayPal, the online banking subsidiary owned by eBay.
The trial against them took place at United States District Court in
Northern California, just a 10-minute drive from eBay's global headquarters
in San Jose. The case was overseen by Judge Paul S. Grewal, a relatively
young judge who would a few years later leave the bench to work for
Facebook. From the beginning, the federal government's case against the
PayPal14, as the group came to be known, took on a bizarre aspect.
Ostensibly prosecutors from the Department of Justice were in charge of the
process, but behind the scenes it appeared that eBay had total control over
the case.
The federal government accused the defendants of a criminal conspiracy to
cause damage to eBay - and the company company claimed it lost millions
because of the attack. Attorneys for the PayPal14 disputed this. They wanted
access to internal eBay documents showing the discussions surrounding the
attack. In particular, they wanted to know what the damages were and how
eBay came to calculate them. They also sought information on how eBay went
about identifying the defendants from the hundreds, and possibly thousands
of people, that took part in the protest. They also needed this information
to determine whether or not their clients were actually were involved in
causing this alleged damage. And in fact, a least one defendant denied
taking part in the DDoS attack altogether.
The defense team wanted access to the evidence and to have the evidence
analyzed by independent experts - and not just eBay.
But they were thwarted at every turn.
eBay was represented by Cooley, a powerful technology law firm that oversaw
the creation Silicon Valley's first venture capital fund back in the late
1950s. Cooley's attorneys employed bizarre legal arguments to prevent the
defendants from requesting internal eBay records to independently verify the
evidence against them, essentially stripping them of their right to obtain
evidence that could potentially prove their innocence.
During the trial, eBay's attorneys successfully argued that the company had
the right to retain ultimate power to withhold whatever evidence it seemed
fit - even if the evidence stood to clear the suspects of wrongdoing. The
company's claims had to be taken as indisputable fact and could not be
challenged. It seemed like a clear violation of the defendants'
constitutional right. It even shocked the judge.
"So we can send people to jail, even though a victim has a document, which
would impeach something that a Government witness would say?" he asked
eBay's attorneys.
Their answer: "Basically, yes."
eBay attorneys argued that eBay was the victim here. For the court to force
eBay to hand over internal documents to its accused abusers would amount to
further trauma against the company. "Ebay, the victim, is being asked to
turn over documents to the - the folks who are accused of having perpetrated
the DDoS attack against it," explained Angela L. Dunning, one of the Cooley
attorneys representing eBay. "The reasoning of the case is - is, again, that
there is no entitlement to discovery in a criminal case."
The judge was taken aback by the argument, but after some deliberation he
agreed with eBay and and threw out the most of the discovery requests filed
by PayPal14's attorneys. In the end, eBay retained the ultimate power to
present or withhold from the court - even if the evidence stood to clear the
defenders of wrongdoing. The company's claims had to be taken as
indisputable fact. It seemed like clear violation of the defendants' basic
constitutional right.
Thomas J. Nolan and Shira Kieval, attorneys representing two of the PayPal14
defendants, filed a motion to protest the judge's ruling. To them it was a
sham trial - the court seemed to function as little more than a front for a
powerful corporation, giving the company total control over the legal
process while retaining plausible deniability of having anything to do with
it at all.
"In this case, a large multi-national corporation asked the government to
bring criminal charges against individuals who, in the eyes of the
corporation, have made a nuisance of themselves," they told the court. "In a
corporate-driven prosecution, the corporation can choose to provide the
government with certain documents, and withhold others. The assistance that
a corporate complainant provides to the government can assist the government
greatly, and even relieve the government from the burden of conducting its
own investigation. This situation is ripe for abuse, as a corporation may
select between documents that only it possesses when determining what to
provide the government, for the purpose of telling only its side of the
story, or even to mislead the government and finder of fact."
"In this case, the defendants believe that the corporation possesses certain
specific documents that are relevant and necessary to defend the case. These
documents will allow an expert to answer deceptively simple questions at the
heart of this case: Who is PayPal? Where was PayPal during the alleged
attack? What happened during the alleged attack? Was PayPal harmed? How
badly? How does PayPal know? And, critically, are any of the defendants to
blame? The simplicity of these questions, however, belies the difficulty of
eliciting their answers from a multi-national corporation without the
testimony of an expert."
Their motion was denied. And eBay got its way. It got to control what
evidence to present the court, and what evidence to withhold. The fourteen
kids on trial couldn't do anything about it, so they ended up having to plea
bargain.
To to the attorneys handling the case, it was a frightening experience. It
looked like eBay and the prosecutorial arm of the U.S. government had
merged. And indeed they had.
To be continued.
-Yasha Levine