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How the Silk Road Trial Could Lead to a Dangerous Legal Precedent

Illustration for article titled How the Silk Road Trial Could Lead to a Dangerous Legal Precedent

The Silk Road trial is over. A jury found Ross Ulbricht guilty on all seven charges, including money laundering, drug trafficking, and the "kingpin" charge. That's not just bad news for Ulbricht, who faces life in prison. His trial could help establish a dangerous precedent, which could allow law enforcement to gather evidence illegally.

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While many watching the trial were fascinated by all the ways that Ulbricht's identity was definitively linked to the pseudonymous digital drug bazaar runner Dread Pirate Roberts, they overlooked something crucial. The FBI never had to explain how it located and infiltrated the Silk Road's hidden servers. The fact that the evidence law enforcement provided from those servers was admitted despite the lack of clarity about their sources is troubling.

Privacy advocates suspect the government's search and seizure was not entirely above board, arguing the agency hacked into the anonymous site without a warrant. As Adam Clark Estes wrote shortly before the trial:

Both sides are clashing over one specific detail regarding how the FBI located the hidden Silk Road server. Put simply, they hacked the site's login page with a (potentially illegal) brute force attack. Or the NSA did it for them—that part's a little bit unclear. Neither of the government agencies had a warrant, of course.

The defense says that this sort of intrusion represents a clear violation of the Fourth Amendment. Just imagine if the FBI had broken into and searched Ulbricht's house instead of his server.

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That's a reasonable concern, though it didn't do the defense any good in court. Judge Katherine Forrest rejected the argument on a technicality during the trial, and so the defense was not allowed to explore this line of questioning. Without a clear answer, there's no proof that the government obtained the information legally.

The defense instead tried to run with the argument that the FBI had initially suspected someone else of running the Silk Road, Mt. Gox CEO Mark Karpeles. But the prosecution shut down this line of questioning, and the defense was pretty much screwed. The prosecution had obtained a damning pile of evidence, from Ulbricht's diaries to a report tracing $13.4 million Bitcoin from the Silk Road into Ulbricht's personal digital wallet. While defense lawyer Joshua Dratel kept arguing about the slipperiness of digital identity, it wasn't enough to sway the jury.

What's at stake here is a lot more than Ulbricht's innocence or guilt. This trial set precedents that will affect future defendants, too. The fact is that law enforcement was allowed to present damning digital evidence without explaining where it came from. That's bad news for our civil liberties. It means that police and other law enforcement officers working digital crime cases may not have to worry as much about obeying the law anymore when it comes to gathering evidence. Corruption would surely follow.

Before the verdict came in, I talked to Ryan E. Long, a lawyer affiliated with Stanford's Center on Internet and Society, about the potential impact of this case on future internet-related trials. He zeroed in on the importance of authenticating the evidence that the government showed, and making sure it was obtained without violating the Constitution.

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"How did they get this information, and did they breach the law by getting it? I think that will set the precedent with future electronic cases about how the government got the information and whether they did it legally," he said. The issue is, he continued, "whether the government obtained the evidence that they wish to use to prove this narrative, [Ulbricht's guilt] such as the identity of the server, in a lawful way consistent with the Fourth Amendment, among other things."

That doesn't mean Ulbricht did not do the things he's now convicted of doing. It doesn't mean the Silk Road kingpin doesn't belong behind bars. But it does mean, unambiguously, that the feds were allowed to present evidence that may have been obtained unlawfully. In the legal world, there's a metaphor called "fruit of the poisonous tree." It's used to describe tainted evidence, evidence that comes from breaking the law.

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It's not supposed to be admissible in court. But now, thanks to the Silk Road verdict, there's precedent that lawyers can cite to avoid having to explain how they their clients acquired make-or-break digital evidence.

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"That's a reasonable concern, though it didn't do the defense any good in court. Judge Katherine Forrest rejected the argument on a technicality during the trial, and so the defense was not allowed to explore this line of questioning."

It's more than just a little technicality. Ulbricht refused to state that the server that was hacked (if it was hacked) was actually his. You can't claim that your privacy rights were violated if you won't acknowledge that the search was of your property. From the linked article:

"Defendant has…brought what he must certainly understand is a fatally deficient motion to suppress [evidence]," the judge writes. "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."

That argument may seem like a Catch-22. If Ulbricht were to claim ownership of that server he might have incriminated himself. But Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn't be used against him as evidence. "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)," she writes. "Yet he has chosen not to do so."