For the last two months, the lawyers for Ross Ulbricht have tried to shift the focus of the case onto the FBI, bringing into question the legality of their actions. How did the FBI obtain the information that brought down Silk Road and leads the current case again Ulbricht? Mr. Ulbricht is facing charges of drug trafficking, computer hacking, money laundering, and “continuing criminal enterprise.”
Ross Ulbricht, better know to many as the alleged DPR or the Dread Pirate Roberts, stands accused of creating a billion-dollar online black market known as Silk Road. Silk Road is a marketplace that allows users to purchase illegal goods such as narcotics and forged documents.
The defense made arguments last week saying that the FBI had illegally hacked a Silk Road server in Iceland without a warrant in order to determine its location. If the FBI indeed did hack the server, this would be an invasion of Mr. Ulbricht’s privacy and fourth amendment rights. With the IP address of the server, the FBI was able to connect Ross Ulbricht to Silk Road. Ross has pleaded not guilty to all charges back in February.
Judge Katherine Forrest dismissed the defense’s motion to suppress evidence. In a 38-page ruling made on Friday, Judge Forrest explains her ruling in what some might call a catch-22. Her rejection is on a technicality and stems from the argument that Ulbricht has not claimed ownership of the server that hosted Silk Road, thus even if it was hacked by the FBI, Ulbricht can not claim any privacy rights violations unless he confesses to owning the server. If Ulbricht were to claim ownership of the server, he might be incriminated himself.
In the Judge’s statement, she said:
“Defendant has…brought what he must certainly understand is a fatally deficient motion to suppress [evidence]. He has failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he has failed to submit anything establishing that he has a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized.”
Ross Ulbricht Catch-22
Mr. Ulbrict could have claimed ownership of the server in a pre-trial statement, and that couldn’t have been used as evidence against him; however, this statement could have been used to impeach him if he took the witness stand.
“Defendant could have established such a personal privacy interest by submitting a sworn statement that could not be offered against him at trial as evidence of his guilt (though it could be used to impeach him should he take the witness stand),” Forrest writes. “Yet he has chosen not to do so.”
This decision handed down from Forrest comes after a lengthy pre-trail debate that was centered around “how” the FBI obtained the server’s IP address. In August, Ulbricht’s defense lawyers filed a motion to suppress all the evidence in Ulbricht’s case which they argued had been procured by potentially illegal activity. The prosecution responded with an affidavit from the FBI that described how it found the Silk Road server. However, the security community has found major inconsistencies in the FBI’s story.
The United States Views All Foreign Servers as Viable Targets
Regardless if the FBI hacked the server or not, the Justice Department of lawyers have told the judge that even if the FBI had broken into the server remotely without a warrant, it would still be legal according to government filing due to the geographic location of the server. In an article on WIRED, Stanford Law professor Jennifer Granick spoke out against this “logic:”
“The FBI’s ability to hack any website abroad without a warrant has never been established in court. Because the Silk Road ran on the Tor anonymity software, the FBI couldn’t have even known who hosted the server or where before it performed its intrusive search. “
What could have lead to a ruling on the rights of government hacking, will now never happen. And while this ruling comes as a blow to Ulbricht, it also comes as a blow to all of us. In effect, Judge Forrest is ruling that the government can hack any website without the need for a warrant.
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