eBay Cyberstalking: A Threat To Free Speech & First Amendment Values
UPDATE 1-11-24
eBay has been found criminally liable in connection to the 2019 cyberstalking of journalists Ina and David Steiner of Ecommercebytes, and agreed to pay a penalty of $3 million as part of a deal to defer further prosecution.
Liz Morton
The 2019 eBay cyberstalking scandal is receiving renewed attention after being featured on 60 Minutes last night. The segment raised troubling questions about the free speech implications of the case, details of which Deputy US Attorney Seth Kosto has called "abhorrent to First Amendment values."
This bizarre corporate plot targeted Ina and David Steiner, the editor and publisher of EcommerceBytes, with harassment and threats in an attempt to change their coverage of eBay and get them to unmask the identity of unsuckEBAY, an anonymous source and commenter who sparked the ire of top executives at the company.
Liz Morton ~ Founder
Senior Director Security Jim Baugh, Director of Global Resiliency David Harville, Security Manager Philip Cooke, Senior Manager of Special Operations Brian Gilbert, Senior Manager of Global Intelligence Stephanie Popp, Global Intelligence Manager Stephanie Stockwell and a contracted security analyst Veronica Zea all pleaded guilty and to their roles in the crimes.
The Steiners have also filed a civil case against the criminal defendants plus CEO Devin Wenig, Communications Chief Steve Wymer, SVP Global Operations Wendy Jones, eBay Inc. and security company Progressive F.O.R.C.E Concepts - alleging communications from the very top of the c-suite directed and egged on the harassment.
In a press release at the time the civil case was filed in June 2021, the Steiners' attorney, Rosemary Scapicchio, said they were bringing the suit to hold those responsible for the campaign accountable.
The suit alleges eBay engaged in a conspiracy to intimidate, threaten to kill, torture, terrorize, stalk and silence the Steiners through a barrage of around-the-clock cyberstalking, ominous death threats and deliveries, and in-person surveillance that caused the Steiners to fear for their lives.
"The Plaintiffs are taking the brave step to hold all those responsible, accountable for these despicable acts." said Rosemary Scapicchio, lawyer for the Plaintiffs...
..."This has been an unbelievably difficult ordeal for my wife and I," said David Steiner. "Never did we imagine doing our jobs as journalists would lead to this. We want to protect the rights of reporters and their freedom of the press. We have endured enormous cruelty and abuse and feared for our lives. If this behavior can happen to us, it can happen to anyone."
The Steiners founded EcommerceBytes over 20 years ago, and it quickly became a "go to" source on a wide variety of topics across the gamut of online marketplaces that have risen to prominence in that time, including eBay, Amazon, Etsy, and more.
CEO Devin Wenig grew increasingly frustrated with the site's coverage of eBay over the years, particularly with the comments section where sellers and buyers alike often raised questions and concerns, aired sometimes critical opinions, or sought to bring important business impacting issues to light.
That frustration hit new highs in 2018 and 2019 as one particular commenter known as FidoMaster (also known as Dan Davis and later changed to unsuckEBAY) made waves posting comments on Ecommercebytes, in the eBay community forums, on Twitter and elsewhere across the web.
As executive concern over these comments increased in March 2019, Chief Communications Officer Steve Wymer requested Director of Security Jim Baugh to do an in-depth investigation of FidoMaster/unsuckEBAY, looking to identify the person behind the account and trying to find any connection to EcommerceBytes.
In March 2019, in response to a request from Executive 2, the GIC prepared a report for BAUGH summarizing the Account's discussions of eBay over the last year.
The report noted that FidoMaster1/Dan Davis was an "anonymous Twitter user that posts negative content about eBay and its senior leadership."
Regarding Fidomaster1/Dan Davis' relationship with the Newsletter, the report noted "the owner of this account corresponds regularly with [the Newsletter] editor [Victim 1] about issues pertaining to eBay. [Victim 1] and [the Newsletter] are known for publishing negative content about eBay and its executives."
Source: Steiner et al v. eBay Inc. et al 1:21-cv-11181 Doc 1
One particular sore spot for the execs was a May 2019 EcommerceBytes article written about CEO Devin Wenig turning a historic house on the eBay campus into a replica of his favorite NYC bar in 2017, which many viewed as a questionable use of corporate resources.
unsuckEBAY/FidoMaster's amplification of the story on Twitter, and criticism of what he called Wenig's "self-indulgent vanity project", also caught eBay's attention.
On May 21, 2019, for example, the Newsletter reported that eBay had built on its campus an expensive replica of Walker's — a popular Manhattan bar— noting,"(it's probably news to sellers (and shareholders?) that eBay has a pub-like lounge on campus - especially one built with what appears to be no-expenses spared."
FidoMaster1 tweeted a link to the article, noting "@[Newsletter] posted about @eBay's beleagured [Executive 1s] self-indulgent vanity project 'Walker's West' campus bar." The tweet continued, "The bar, [Executive 1's] recreation of iconic @WalkersBarNYC is a throwback to internet and gaming company CEO's lavish overspending on 'legacy' facilities and landmarks."
FidoMaster1 also criticized Executive 1 for undertaking the project while eBay was experiencing "cost reduction, layoffs, and scrutiny by activist investors."
Source: Steiner et al v. eBay Inc. et al 1:21-cv-11181 Doc 1 Exhibit A
The executives were so concerned about the optics of the story, Jones requested to "huddle" about the matter over lunch.
According to Baugh's legal team:
At the lunch meeting, Jones asked Mr. Baugh if he could find a way to deal with the issue “off the radar since comms and legal couldn’t handle it.”
Jones told Mr. Baugh, “Just get it done. I don’t want to know the details, just make sure you sync with Wymer.” Mr. Baugh thereafter provided regular updates to Jones.
Source: USA v. Baugh 1:20-cr-10263 Doc 227
Commentary on corporate issues was of particular interest to eBay, such as mass layoffs and a management shakeup in 2018 or an article about Wenig's oversized compensation package (earning 152 times the average eBay employee at the time) in April 2019.
On April 10, 2019, for example, Wymer texted Wenig, "We are going to crush this lady", sending along a link to the Newsletter's coverage that day of Wenig's compensation.
On April 20, 2019, discussing the Wall Street Journal's coverage of Wenig, Wenig texted to Wymer , "Fuck them. The journal is next on the list after [Victim 1]."
On May 31, 2019, commenting on the Newsletter's coverage of eBay that day, Wymer texted to Wenig, "Shockingly reasonable..." Wenig replied, "I couldn't care less what she says." Seconds later, Wenig added, "Take her down."
Source: Steiner et al v. eBay Inc. et al 1:21-cv-11181 Doc 1 Exhibit A
Tensions continued to escalate leading Baugh to dispatch Senior Manager of Special Operations Brian Gilbert to Massachusetts to engage in an act of vandalism clearly intended as a warning - tagging the word Fidomaster on the Steiners' fence.
On June 8, 2019, co-conspirator Brian Gilbert spray painted “FidoMaster” on the Steiners’ fence. Mr. Baugh told Wymer that his team had given the Steiners “a tap on the shoulder.” Wymer expressed approval but did not ask questions.
In the immediate aftermath of the vandalism, the ELT [executive leadership team] was pleased, because the executives perceived that negative postings had subsided.
Source: USA v. Baugh 1:20-cr-10263 Doc 227
In an August 6, 2019 email, Wenig expressed his desire to see the unsuckEBAY Twitter account shut down and assigned the task to Baugh, with Wymer and Chief Legal Officer Marie Oh Huber copied.
Liz Morton ~ Founder
Wymer responded, confirming he had previously discussed the issue with Baugh and explored all angles with Twitter but had been unable to get @unsuckEBAY killed.
Oh Huber echoed the frustration, but her and another member of eBay legal, Aaron Johnson, advised there wasn't a strong claim to appeal to Twitter to kill unsuckEBAY's account.
Baugh responded that his team had been investigating for weeks and he was close to discovering the identity and location of unsuckEBAY.
Oh Huber accepted that answer with a smiley face emoji, saying she would hold off on pursuing further legal steps in light of Baugh's investigation.
However, Wymer added more fuel to the fire the next day by making it very clear how utterly vexed by the situation he was, saying any effort to "solve" the problem should be explored...Whatever. It. Takes.
At the same time, Baugh was also separately texting with Wenig about his efforts to out unsuckEBAY and then copied his direct supervisor, SVP Global Operations Wendy Jones, for "visibility."
On August 6, 2019, Wenig received another email complaint about FidoMaster. He sent the following email to Huber, Wymer, and Mr. Baugh: “First of all we should shut down the account. Second, this user name keeps popping up causing all kinds of trouble. Might be worth some research Jim.” Wymer responded that he had Mr. Baugh had been working on the issue. Huber and her colleagues responded that legal remedies were not and would not be effective...Mr. Baugh separately texted with Wenig:
Mr. Baugh then forwarded the thread to Jones (to provide “visibility,” keeping her in the loop). Jones responded with a “thumbs up.”
That's just a sampling of the documents and communications which have been released in the cases so far - and there's potentially more to come as the civil case moves forward with discovery.
In the wake of those texts and emails, Baugh set in motion plans to ratchet up the investigation, culminating in a white knight strategy to try to earn good will with the Steiners in order to gain their cooperation in identifying unsuckEBAY.
In the first of these meetings, BAUGH directed Popp, Stockwell, Zea, and Analysts 1, 2, and 3 to anonymously harass Victims 1 and 2...
...BAUGH called the harassment a "distraction campaign" and suggested that scary masks, live insects, or embarrassing items, such as pornography and strippers, be sent to the Victims (and in some cases to their neighbors in the Victims' names)...
...in a separate meeting during the week of August 5th Baugh gathered Popp, Gilbert, and Supervisor 1 to plan another way to harass the Victims.
Specifically, Baugh, Popp, Gilbert, and Supervisor 1 planned to send a series of anonymous tweets and Twitter direct messages...the messages would gradually get more aggressive, culminating in the publication of the Victims’ home address...
...by design, these threatening messages would allow eBay—through Gilbert and another GSR employee—to approach the Victims with an offer of assistance to investigate and stop the threatening messages, thereby earning the Victims' trust, creating good will toward eBay, and getting the Victims' cooperation in identifying the author of the [unsuckeBay] Account. (This will be referred to in this affidavit as "the White Knight Strategy").
Source: Steiner et al v. eBay Inc. et al 1:21-cv-11181 Doc 1
Notably, US Attorney Seth Kosto explicitly called out the White Knight Strategy to out Fidomaster/unsuckEBAY as particularly egregious, abhorrent to First Amendment values and cause for significant sanction in his sentencing memorandum in the criminal case against Cooke.
First, Cooke and his co-conspirators targeted the Victims based on what they had written and published, and because they had made space for others to publish in comments beneath the Newsletter’s articles. Journalism about public companies, especially the world’s largest ecommerce brands, is important to investors, merchants, and customers alike.
That some at eBay disagreed with the Newsletter’s coverage, and that Baugh shared that sentiment as justification to target the Victims, is abhorrent to First Amendment values.
While there is no good reason to harass and intimidate anyone, the logic that led to the Victims’ suffering is absurd. Accepting for purposes of argument that Cooke and others were focused on Fidomaster and his online critiques, they harassed the Victims as a means of identifying and discrediting Fidomaster. That Cooke and others targeted innocent third parties is worthy of significant sanction...
...Cooke asserts that, in the August 6 meeting, he tried to talk his colleagues out of at least some parts of the harassment campaign. But what remained, even in his telling, was a series of increasingly harassing messages directed to a journalist, to set up a sting, to enable Gilbert to make a false offer of assistance, to predispose Victim 1 to help eBay with its Fidomaster problem.
Source: USA v. Cooke 1:20-cr-10126 Doc 21
While some may point out the First Amendment applies to the government, not private corporations, those close to the case are quick to draw attention to the broader values that amendment represents and acknowledge the chilling effects this kind of unchecked corporate power could have on free speech.
Judge William G. Young also admonished Veronica Zea at sentencing, saying her failure to recognize and defend the principles of free speech have broad implications beyond just this case.
When did you learn about the First Amendment, isn't that something they taught before you got out of school? We're talking about speech.
It is properly said that the First Amendment doesn't protect the speech that we like, that's easy, it protects the speech that we hate. You should have understood that.
It is no excuse that this was your first job. And the implications of this case, this particular case, your case, resonate throughout society...
...you are saddled with the knowledge that when it came to you, you did not fight for or defend the First Amendment of our Constitution, it seems that you did not even recognize it. That's extraordinarily sad.
Wenig's emails and text messages in this case show a disdain for the media that stands in stark contrast to the public persona he projects.
Surprisingly, Wenig is no stranger to the media business - prior to joining eBay, he was CEO of Thomson Reuters Markets, the financial and media businesses of Thomson Reuters Corporation.
At Code Conference 2016 hosted by Recode, Wenig was asked for his thoughts on the controversy then brewing between Gawker Media and PayPal co-founder Peter Thiel.
Is it right for a billionaire to put large amounts of money secretly behind lawsuits seemingly to settle a political a personal score and to try to put a publication out of business?
Wenig's answer took a very staunch position defending a free press.
I'm gonna answer the broader question which is, I side with a free media and a free press.
I think we've got to be very careful. It is a nuanced argument there's always a pull and tug but something feels like it's different. All First Amendment rights aren't created equal.
There's a strong public interest in a free press and rich and powerful people have First Amendment rights too but if you allow that to be unfettered and what that causes is a real stifling of voices and a real concentration of media.
...We're not going to like the result of that and that really goes back all the way to the Constitution. So I don't want to get into all of that but we've got to be really careful that powerful voices don't knock down what I call divergent points of view.
You know this immediate kerfuffle, I don't like the media actor [Gawker]. I don't read what they do. I don't find it particularly valuable but that's irrelevant.
What's more relevant is that you shouldn't be allowed to drive media companies from expressing divergent points of view and I think we've got to be really careful about that.
Those words are particularly interesting when you consider the person sitting next to Wenig on that stage was Recode reporter, Jason Del Rey.
Del Rey interviewed Wenig shortly after news of the scandal broke in June 2020, but curiously, did not ask how Wenig's messages to "take down" a journalist or shut down a Twitter account that didn't violate platform policies or laws (by eBay legal's own assessment) could be squared with his previous comments about not allowing rich and powerful people to "knock down divergent points of view."
Jason Del Rey
In court documents, copies of text messages showed Wenig twice instructing his communications chief, Steve Wymer, to “take her down,” referring to the EcommerceBytes owner and writer Ina Steiner. On Thursday, Wenig told Recode in a statement that those texts “have been wildly misinterpreted and taken completely out of context in some media reports.”
“I was speaking off the cuff to a communications executive about my desire to be more aggressive in our PR effort; never in my wildest dreams would I fathom that, later, someone might associate that communication with the type of activity mentioned in the Massachusetts complaint,” Wenig said in the statement.
Wenig’s statement added: “I am genuinely sorry for the couple that had to endure these obscene acts. No one should have to experience that, especially not a journalist. What happened isn’t representative of the company culture I spent 8 years building, or the employees I knew there.”
Court documents show that Wymer, eBay’s communications chief, hired a consultancy that “prepared a document [which] included the recommendation, among others, that eBay promote company-friendly content that would drive the Newsletter’s posts lower in search engine results.” Such an action could be seen as a fairly benign PR strategy. But Wymer also sent text messages with an aggressive tone such as: “We are going to crush this lady.”
The public learned about this case when criminal charges were initially announced against 6 eBay employees on June 15, 2020.
Just days before that, Wenig took to Twitter to share more of his personal thoughts on the subject of press freedom.
The response to misleading, incorrect, or just plain stupid comments (by a politician or otherwise) is not to hide them, annotate them, cancel the author or otherwise censor them down.
We're heading down a dangerous path where frustration with public voices is leading to pressure to remove those voices, but this won't make the people or comments go away.
Strange words from a man whose own desires to hide, cancel, or otherwise censor public voices with whom he was frustrated were about to be exposed to the world.
Wenig continued his free speech grandstanding on June 12.
There are always going to be lines that shouldn't be crossed, but the principal that distributing content is an endorsement leads to an incredibly slippery slope of further polarization and less real discussion. We're now censoring ideas that should be debated publicly.
Perhaps Wenig should have taken his own advice and publicly, or even privately through corporate comms or press relations, engaged in good faith with divergent points of view?
Both EcommerceBytes and unsuckEBAY say there was never any such effort from anyone at eBay.
At the very least it might have been a good idea for Wenig to explain those "lines that shouldn't be crossed" to his comms chief and director of security.
In the wake of the scandal, eBay performed an internal investigation in an attempt to mitigate their liability in the case. The investigation determined Wenig and Wymer's tone and communications were "inappropriate" but not, they believed, criminal.
Wenig resigned in September 2019 and was allowed to take a $57 million golden parachute on his way out, blaming conflict with the board and activist investors as news of the scandal had not yet been made public.
He still sits on the boards of several companies including Salesforce and GM, as well as running a charitable organization with his wife Cindy, ironically supporting justice system reforms and independent journalism.
A text message from Cindy Wenig to Jim Baugh complaining about EcommerceBytes also appears in the court documents in the cyberstalking case.
Wymer was fired by eBay for cause in September 2019 but landed a new gig a year later as CEO of the Boys & Girls Club of the Silicon Valley, thanks to his close ties with then San Jose Mayor Sam Liccardo - announced on Twitter with his signature "whatever it takes" hashtag.
Both men say their words have been taken out of context or were simply hyperbole.
Oh Huber (who has not been named in the lawsuit) is still Chief Legal Officer today and, as a result of eBay's internal investigation, the Safety & Security unit was moved to the Legal Department from the Global Operations division.
That unit now reports to eBay Legal VP, Chief of Litigation, who of course reports to the Chief Legal Officer - meaning the entire security apparatus at eBay now resides ultimately under Oh Huber's purview.
Wendy Jones was allowed to continue in her role as SVP Global Ops through December 2020, well into current CEO Jamie Iannone's first year at the helm of the company.
When she departed, she took an $11M+ severance package, in addition to the $11M bonus Wenig had granted her for 2018, $8M of which was a retention bonus.
And eBay founder Pierre Omidyar retired from the board in September 2020, just 3 months after news of the scandal went public.
The Wall Street Journal
Omidyar has used his vast fortune to fund many media organizations and whistleblower groups through his philanthropic Omidyar Network and First Look Media.
Connie Matthiessen
In yet another twist of irony, Omidyar also founded the Intercept, which became famous for publishing the Snowden Files before making the surprising decision to halt research on the files and lock them down from any further public access in March of 2019.
Margot Williams, Henrik Moltke, Micah Lee, Ryan Gallagher
One might think Omidyar would have some interesting thoughts about journalists being harassed and threatened in an attempt to uncover an anonymous source.
However, to my knowledge he has not made any statements about the eBay scandal and mainstream media has not been keen to ask where the elusive billionaire founder was when everything went off the rails.
Perhaps it's time for those questions to start being seriously explored.
