First, the New England Patriots used surveillance equipment to spy on the New York Jets. And now they've used a Massachusetts state court to spy on up to 13,000 people who use StubHub.com.
After repeated pleas from the American football franchise - winner of three of the last six Super Bowls - Massachusetts Superior Court Judge Allan van Gestel has ordered StubHub to divulge the names, phone numbers, and addresses for 13,000 people who have sold, purchased, or even attempted to sell or purchase Patriots tickets via the eBay-owned auction site.
That's right, the Pats have even nabbed the names of people who failed to auction off tickets or placed unsuccessful bids. And these names account for a majority of the 13,000.
What's more, the team can use the names for more than just evidence gathering purposes. According to court documents, they can bar the 13,000 from owning season tickets, and they can call in the cops.
"The Patriots have said that they intend to use the identities of the purchasers and sellers not only for this case, but also for its own other allegedly legitimate uses, such as canceling season tickets of 'violators' or reporting to authorities those customers that they deem to be in violation of the Massachusetts anti-scalping law," reads the decision from Judge van Gestel.
StubHub told us the company has complied with order, and yesterday, it attempted to notify the 13,000. Daniel Goldberg, a Boston lawyer who represents the Patriots in its ongoing court battle with StubHub, did not respond to our requests for comment.
Court ins and outs
The Patriots sued StubHub in November last year, claiming the site encouraged people to violate the team's ticket policy as well as that Massachusetts anti-scalping law. Patriots policy says that ticket holders can only resell their tickets at face value on the team's official website. Meanwhile, an 83-year-old state law prohibits the resale of tickets for more than $2 above face value (excluding "legitimate" services charges).
A month later, StubHub filed a counter-suit, arguing that the Patriots were attempting to monopolize the market for team tickets and conspiring to restrict trade. The case is still very much in the balance, but in July, Judge Gestel ordered StubHub to turn over those 13,000 names as part of the case's discovery process.
StubHub appealed, arguing this would violate its terms of service, but that didn't go so well. On September 25, the judge repeated the order, and now the names are with Pats.
The added wrinkle here is that even though the case has yet to be decided, the Pats are free to take action against the 13,000 outside the courtroom. "There's a protective order on the names, so they can't be released publicly," said Christopher Callanan, a lawyer with the Massachusetts firm Campbell Campbell Edwards & Conroy. "But the Patriots can use them for other purposes, like rescinding ticket rights."
Just like the Jets
As Callahan confirms, StubHub users who failed in their attempts to buy or sell tickets have not broken Massachusetts law. "No one would get arrested for failing to buy or sell tickets," he told The Reg. And those who posted losing bids may have nothing to do with the Patriots' ticket policy.
Ari Schwartz, deputy director of the Center for Democracy and Technology (CDT), is appalled. "There are going to be some instances here where the law was not broken, but StubHub is still required to turn over that information," he told us. "And what really gives us concern is that they've even been forced to turn over the names of unsuccessfully bidders. These people may have no existing relationship with the Patriots."
We're appalled too. But we're not surprised. Last month, the National Football League fined the Patriots and their unrepentant coach $750,000 for using audio and video equipment to steal defensive signals during a game with the lowly New York Jets.
"There was a very easy, ethical response to this StubHub situation: The Patriots could have just asked for the names of the people who broke the law," Schwartz continued. "But they chose to take another path. They showed they haven't learned that privacy is an important issue." ®