Evan Schuman's StorefrontBacktalk

Attorney Mark D. Rasch is the former head of the U.S. Justice Department’s computer crime unit and today serves as Director of Cybersecurity and Privacy Consulting at CSC in Virginia.

When Amazon launched a one-day promotion this month aimed at getting its customers to go into brick-and-mortars and select items they wanted to buy at Amazon for a 5 percent discount, it was engaging in a deliciously ironic act. Why? Because although what it was doing to those physical stores was likely legal, had those stores tried doing the same to Amazon, it would have been illegal, thanks to Amazon’s posted policies.

That policy phrasing is not even universal—or even common—among major E-tailers. Both Sears and Best Buy’s Web sites, for example, contain no similar language that would prohibit Amazon or others from accessing their pricing information, although they do prohibit certain types of interference with the operation of the Web site through the use of bots or spider programs.

Was it indeed crowdsourcing trespass? At one level, this wasn’t especially new. Retailers have gone into rivals to check out their pricing for as long as stores have existed. The difference in what Amazon did was twofold: The scale it deployed—trying to get millions of its shoppers to do it all during the same 26-hour period—and the fact that it cleverly used the store’s customers. If someone who is known to store management as an Amazon employee walks into a Macy’s or Target wearing an Amazon windbreaker and scanning price after price with an Amazon-labeled device, the store has every right to throw that person out. But by getting the store’s own customers to do it, that makes the defense much more tricky.

(Related story: Amazon Price-Check Program’s Critics Have The Wrong Facts And The Wrong Attitude)

Besides, Amazon long ago developed an app to do something very similar—to examine a product (or the serial number, SKU or barcode of that product) observed in a brick-and-mortar store and transmit this information to Amazon for price comparison. Although Amazon’s activities were, shall we say, unseemly and possibly anticompetitive, because of a quirk in cyberlaw and trespass law, had the brick-and-mortar retailers done the same thing to Amazon, their executives could have gone to jail.

Pricing information is both highly sensitive and highly public. Although anyone can go to a store and see what it is charging for a product, the mass collection and use of this pricing information can result in civil and criminal issues.

Take, for example, Ronald Kahlow, a software engineer from Reston, Va.