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But these earnest efforts, especially the site monitoring, may be tempered by the knowledge that the more eBay does to clean up illegal traffic, the higher the likelihood it will be held liable for auctions gone bad in the future.

If an illegal good were sold through eBay and it ended up harming someone, a plaintiff's lawyer could point out that eBay had procedures in place to cut down on illegal traffic that did not adequately protect the client, according to Lee Levine, a Washington attorney and an adjunct professor at the Georgetown University Law Center.

The good news for eBay is that many of the violations of the Endangered Species Act are the product of ignorance, not criminal intent, according to investigator Snow. Indeed, many aren't aware that selling that old grizzly bear rug in the attic, or leopard skin coat in the closet, is a violation of federal law. But if the government can prove that there was intent to commit a crime and the seller gets convicted, he can face up to one year in prison and $100,000 in criminal fines. That's why Snow praises eBay's efforts to educate its users with a section on the site dedicated to describing prohibited items.

Only a fraction of the traffic in wildlife involves individuals who know exactly what they are doing, says Snow, and therein lies the problem. "For persons who wanted to sell illegal wildlife," he says, "it provides them an avenue to do it."

Sometimes it's hard to tell the difference between the ignorant and the criminal. Take Michael Moore, the man who was caught selling the frozen white tiger -- a gift, he says, from a breeder. (He was also busted for selling a leopard skin.) Moore, a licensed taxidermist, admits that he should have known the applicable laws but pleads ignorance anyway. At the time, he says, he thought there was some exception for a taxidermist selling excess inventory. "I didn't think it was a problem," he says.

Neil Mendelsohn, the agent who caught Moore after stumbling upon the auctions in eBay's taxidermy section, won't comment on Moore's protestations of ignorance, but he did fine Moore $1,500 for the two auctions and confiscated the items. He points out that auctioning an item like the frozen baby tiger creates a market for endangered species. "Just about everybody will tell you they didn't know it was illegal," says Mendelsohn. "There is a burden on the seller to research the law." (A judge apparently didn't agree. He reduced Moore's fine to a paltry $50.)

When Turtlegate broke, Snow tossed a tortoise shell in his car and drove down to eBay's headquarters in San Jose. Snow says the government doesn't have the resources to monitor eBay and the other Internet auction sites adequately, so he focuses instead on educating the auctioneer. He conducted the hands-on demonstration so that Chestnut could teach himself and the staff how to identify illegal turtle products. Not an easy task. The law is complex and the examination occurs via a computer screen.

Chestnut himself couldn't even find the turtle auctions on eBay when he was first alerted. The problem? He was typing "sea turtle" instead of "tortoise shell." And though an extended description of prohibited sea turtles items appeared on the site this week, Chestnut has declared his limits. "We can't have a staff of sea turtle experts," he says.

Because eBay's methods are self-consciously reactive, the problem will endure. A spot check Thursday morning revealed no frozen baby white tigers available at auction, but there was one leopard skin, which the seller declared was real. The auction on that item (under the evasive subject line "leopard skin") began four days ago.

Sellers, intentionally or not, have a habit of staying one step ahead of the investigators. And just because one auction is shut down doesn't mean others won't begin. Indeed, even as eBay started shutting down sea turtle auctions, new ones started popping up, according to Appelson, who says eBay should start screening its auctions.

So what will eBay do if it is lucky enough to see its phenomenal growth continue? Chestnut puts his faith in the community. He says increased site traffic will make it harder for people to conduct illegal business on eBay. "The more we grow," he says, "The more people are watching."
salon.com | Jan. 21, 2000

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