Evan Schuman's StorefrontBacktalk

But what about Ford’s concerns? Notice that Ford never provided any evidence that these particular John Does were likely to destroy evidence or avoid service of process. Any time you tell someone they are being sued you “tip off” the defendant, and yet tens of thousands of lawsuits proceed this way every day. In fact, many jurisdictions require, or at least suggest, that entities attempt to negotiate a settlement or resolve a dispute before filing a lawsuit.

Ford certainly had the contact information for the sellers—it arranged purchases from them and had already communicated with them. Most of the records that Ford wanted—the eBay and PayPal transaction records—were not capable of being effectively deleted or destroyed by the John Does, because they were stored by eBay and PayPal. An allegation that someone could avoid service of process or destroy records is not the same as proof that they will. The presumption should be that when you subpoena records about a customer from a third party, the customer is notified and given an opportunity to object and only where there is proof that secrecy is essential can this step be dispensed with. Otherwise, these privacy policies mean nothing.

It’s just good business for merchants and service providers to protect the rights of their customers.

One thing overlooked in the Ford v. Doe case is the fact that the court did not order PayPal and eBay not to tell their customers. There was no protective order. The court simply said that PayPal and eBay were no longer required to tell their customers. They were free to do so, if they wanted. And if I were eBay and PayPal, without some evidence of imminent destruction of records or fleeing the jurisdiction, I would certainly tell my customers. And I bet if someone subpoenaed Ford for records about its customers, the automaker would do the same.

According to Motoramic, eBay’s policies don’t clearly say whether it notifies users in civil cases; it does promise law enforcement agencies investigating crimes to keep their probes secret. Other large Internet firms typically disclose any civil subpoenas or pass them on to users.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.