The Silk Road, shut down by the FBI in October of last year, was undeniably an enormous factor in the illegal international drug trade, and its creator/operator appears to be guilty of many crimes. Yesterday, however, Ross Ulbricht, the man alleged to be the kingpin behind the multimillion dollar drug trafficking site, counter accused the FBI of a crime – violation of federal privacy laws, and defiance of the fourth amendment.
Ulbricht’s lawyers, arguing yesterday for a summary dismissal of the charges against him, issued a memo accusing the FBI of tracing and seizing the Icelandic servers on which the Silk Road website was hosted without first procuring a warrant, an action that they say violates Ulbricht’s fourth amendment rights, and is a landmark in privacy violation and federal over-reach in the privacy sector, a hot topic in recent years. The fourth amendment specifies:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This is intended to protect the population from indiscriminate searches of the kind that would eventually prove popular (and deeply harmful) in Soviet-bloc countries. Doubtless, the FBI and DEA will have a number of arguments to bring to bear about the precise legal definitions of “effects,” “probable cause,” and “seized.” Ulbricht’s lawyers say that this oversight (and others – the complaint notes fourteen distinct searches and seizures of Ulbricht’s possessions) “taint” the remainder of the evidence collected by the FBI in the investigation, and that the charges should be thrown out of court on constitutional grounds.
Among the incidents listed by the complaint, beyond the original trace, are a request to Comcast for information about Ulbricht’s internet usage, and the use of “general warrants” to Ulbricht’s data that his lawyers claim are unconstitutional. The memo reads:
“Many of the warrants…constitute the general warrants abhorred by the Framers, and which led directly to the Fourth Amendment […] The wholesale collection and study of Mr. Ulbricht’s entire digital history without limitation – expressly sought in the warrants and granted – represent the very type of indiscriminate rummaging that caused the American colonists so much consternation.”
This argument may have some validity. The memo cites two instances of precedent. In the first, it shows that there was a precedent of government agencies seeking warrants even when attempting to locate and seize computer files in other countries, a result produced during a protracted legal altercation with software giant Microsoft. In the second, “Riley vs. California,” it notes a case in which it was established that phones cannot be searched without a warrant, due to the large amounts of personal information typically stored on such devices. Ulbricht’s lawyers argue that the same principle applies to this case, as the computers seized in Iceland constituted a personal computer system like a smartphone, and were seized without a warrant.
As a final note, the memo claims that the FBI has failed to reveal many details of the investigation against Ulbricht, a violation of his right to be aware of the evidence against him. The unrevealed details include how the FBI foiled the layers of Tor onion routing that kept the servers safe. It’s possible that this is due to an as-yet not-publicly-known type of attack possible on the Tor network, which the FBI wants to keep secret so it can be used again in the future. If forced to reveal them, the network could probably be revised to make those attacks impossible, which gives the FBI as fairly strong incentive not to reveal their method (if, indeed, this is the case). The memo reads:
“All of the searches and seizures are predicated upon the government’s infiltration of the alleged ‘Silk Road Servers. However, that event – location of the Silk Road Servers – is shrouded in mystery, as the means and manner in which that discovery was accomplished has not been disclosed.”
On a final note, beyond the primary meat of the complaint (which largely had to do with fourth amendment issues), the complaint also asks that prosecutors stop referring to Ulbricht as a “murderer.” Ulbricht does face charges for allegedly attempting to hire a hitman to kill a blackmailer, but no ruling has yet been given in that case, and the memo says that the use of the term is unfairly prejudicial, and prevents Ulbricht from having a fair trial.
The judge will respond to the memo in the coming days or weeks, and we’ll report on the story as it develops. You can read the full text of the memo here.