I'm not analogizing to "actively looking"; I am saying, it is an active action. You can tell it's active because if they don't make deliberate decisions to write code that performs this scan, no scan will happen. They have had meetings about this functionality, and implemented it, and tested it, and management has signed off on it, and in a place like eBay quite likely their legal department has signed off on it. It is an action they have taken, with deliberation and intention; it is not a thing that just suddenly started happening to them one day, like, Firefox shipping a new browser that has a new default font or something.

I'm referring to the literal, probably-hundreds-of-person-hours actions taken to create this functionality. This is relevant to both ethical and legal analyses. No analogy.