Silk Road Judge Won't Examine FBI's Warrantless Server Hacking; Dismisses Suppression Motion On 'Privacy Interest' Technicality

Legal Issues

from the there-are-two-ways-you-can-read-the-phrase-'criminal-investigation' dept

Tue, Oct 14th 2014 1:11am — Tim Cushing

Judge Katherine Forrest has shot down Ross Ulbricht's defense team's motion to suppress evidence it claims was acquired illegally by the FBI. The FBI asserted in its response to the motion that Ulbricht had expressed no privacy interest in the alleged Silk Road servers located in Iceland. The FBI further claimed that it needed no legal permission (i.e., a warrant) to hack foreign servers during criminal investigations.

Those hoping to hear an argument on the legal merits of the FBI's claims will just have to keep hoping. As was noted earlier, the DOJ's response put Ulbricht in an unenviable position: either claim the disputed servers as your own or kiss any hopes of suppressing evidence under Fourth Amendment claims goodbye. From Judge Forrest's ruling [pdf link]:

Defendant has, however, brought what he must certainly understand is a fatally deficient motion to suppress. 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. Without this, he is in no different position than any third party would be vis-a-vis those items, and vis-a-vis the investigation that led U.S. law enforcement officers to Iceland in the first place.

To make this claim and secure the attendant privacy protections (or at least attempt to), Ulbricht would have needed to demonstrate to the court his interest in the Icelandic servers. Doing so would possibly result in him incriminating himself, which would rub up against the Fifth Amendment. Unfortunately, in all the paperwork filed disputing the FBI's evidence and its questionable origins, the possible Fifth Amendment concerns were never raised. Judge Forrest points out one possible remedy, albeit one that seems to have passed its expiration date.

[D]efendant 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). Yet he has chosen not to do so.

In short, despite defendant's assertions and the potential issues he and his counsel raise regarding the investigation that led to the Icelandic server, he has not provided the Court with the minimal legal basis necessary to pursue these assertions. Thus, the declaration submitted by Joshua J. Horowitz, Esq. (ECF No. 70) along with all the arguments regarding the investigation and the warrants based on it are not properly before this Court.

Further down in the ruling, Judge Forrest notes that the court will not be spending any more time trying to discern whether the FBI's hacking of the alleged Silk Road servers falls within the bounds of legality. Again, this decision traces directly back to Ulbricht's privacy interests in the servers themselves.

Here, the Court does not know whether Ulbricht made a tactical choice because he is-as they say-between a rock and a hard place, or because he truly has no personal privacy interest in the servers at issue. It is clear, however, that this Court may not proceed with a Fourth Amendment analysis in the absence of the requisite interest. If a third party leased a server on which the Government unlawfully intruded in the investigation that led to the Icelandic server, under Katz, Rakas, Payner, and a host of other case law, that is no basis for an assertion by Ulbricht that his Fourth Amendment rights were violated. Thus, whatever methods used-lawful or unlawful-are beyond this Court's purview.

So, whatever the methods were -- whether it was parallel construction used to cover up NSA involvement or the FBI declaring itself above the law when operating outside the US -- the government is free to use them again and again until faced with a better legal challenge.

242560546 Forrest Ruling 2 (PDF)242560546 Forrest Ruling 2 (Text)

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Filed Under: 4th amendment, doj, privacy, ross ulbricht, silk road, standing
Companies: silk road

26 Comments

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Anonymous Coward, 14 Oct 2014 @ 1:27am

what would any of the US security forces, government agencies or US companies say if a security service from another country tried or managed to hack into servers that were in the USA or in other countries, but not the country doing the hacking? there would be all hell let loose! the hacking country would be chastised, the diplomats summoned and all sorts of accusations and shit would be thrown about! but it's alright for the USA to do it? putting itself above everything and everyone yet again!
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- Anonymous Coward, 14 Oct 2014 @ 4:47am
  
  Re:
  Haven't you seen that well known documentary, "Team America: World Police"?
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Anonymous Coward, 14 Oct 2014 @ 2:25am

Judge Katherine Forrest, Like many other Judges/Officials with any power to create a neutral environment In which all have a right to defend themselves have favored the Governments position on matters , It's no surprise .. just business as usual.
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Anonymous Coward, 14 Oct 2014 @ 3:02am

So the message here is, if your with the US government you can commit any crimes you want against the people you claim your protecting and the other branches of the judiciary system will turn a blind eye.

Why are people just accepting this blatant criminality from their government exactly?
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- PRMan, 14 Oct 2014 @ 11:56am
  
  Re:
  Because they have lots of very large guns...?
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Anonymous Coward, 14 Oct 2014 @ 3:11am

No, the Judge's argument is actually correct.
One can only make a claim that one's own rights were violated. I can not make a claim for YOUR rights on you're behalf. The exception occasionally being "Automatic Standing" where the crime charged is a crime of possession.

He could have claimed to be the owner, and therefore his rights were the one's being violated.

However, an interesting tact may be that if the Jury finds that the servers WERE his, if that is an element of the crime, he may then have a valid suit against the government, and he could still deny being the owner.
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- anon, 14 Oct 2014 @ 9:15am
  
  Makes No Sense
  So if the police kick in my friend's door and illegally search his house, and use evidence found there against me, I have no recourse to suppress that illegally obtained evidence?
  
  This flies in the face of common sense and the purpose of the 4th amendment.
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David, 14 Oct 2014 @ 4:26am

How does he not have an interest in whether the evidence against him was legally obtained based just on the fact that it's evidence being used against him in a criminal trial?
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- Anonymous Coward, 14 Oct 2014 @ 5:07am
  
  Re:
  An example:
  I own a home. The police break into my home, without a warrant and search my computer. On my computer they find evidence of a crime against you.
  Since it is my home, only I can assert a violation of my rights. If I choose not to assert those rights, then why should YOU be able to tell the police that they were not allowed to do a warrantless search of MY home. Your argument would be a much of a violation against MY rights to determine who I allow entry into my home, even if my consent is after the fact, and by silence.
  
  The fact that you allowed evidence against you to be stored in my home opened you up to the possibility that the police could get to it through my home, rather than yours.
  
  Basically, once he chose to store the evidence against him in a server owned by someone else, he gave up the exclusive ownership and control of it, which is required to assert a 4th amendment right.
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  - Quiet Lurcker, 14 Oct 2014 @ 5:34am
    
    Re: Re:
    Wrong analogy.
    
    It's more like, you ship a package containing evidence of a crime from your home state, the cops somehow catch wind of it, wait til the truck with that package is in another state, break into the truck and take the package without a warrant or order to do so. Then, turn around and assert to the court that the package is evidence you committed a crime, but you can't suppress the evidence because it wasn't in your possession when they took it and they took it legally because it was in another state where that kind of thing is allowed.
    
    But, as said up-thread, that argument side-steps a fundamental flaw in the government's and court's reasoning. The fact that the government is using information from the Icelandic servers as evidence creates a privacy interest in the evidence.
    
    The whole jurisdiction thing is a red herring. The accusation asserts a crime committed on American soil by an American. American rules for trying the gentleman must, of necessity, apply for the trial.
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    - Anonymous Coward, 14 Oct 2014 @ 6:14am
      
      Re: Re: Re:
      Still wrong analogy. You send the package without senders address and cannot suppress it withotu admitting to sending it, without saying "it is my package, you had no right to open it". You cannot just say "I've no idea wo this package belongs to, but you had no right to open it anyway".
      
      That was the difficulty they created for him: Either claim the servers as his and try to suppress the evidence or deny they are his and loosing standing to claim 4th Amendment violation. He tried to have his cake and eat it too and lost.
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      - 4th is the new 2nd, 14 Oct 2014 @ 7:44am
        
        Re: Re: Re: Re:
        How about if I send a drug package to a friend in another state. Then this friend's house gets illegally searched by police, and both of us are arrested and charged.
        
        So my friend can rightfully claim a 4th Amendment violation for his arrest, but I can't make the same claim for myself because I wasn't the one illegally searched, even though evidence from that illegal search is being used aginst me?
        
        And if my now-ex-friend decides to cooperate with police, plea bargains, and testifies against me at my trial, I can't complain that the search of his house was illegal because only he can make that claim (but he's not, as part of his plea-deal).
        
        Is that the way the system works? If so, then it gives the police a shockingly effective loophole for making illegal warrantless searches without technically violating the 4th-Amendment.
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        Anonymous Coward, 14 Oct 2014 @ 11:44am
        
        Re: Re: Re: Re: Re:
        kind of a moot point considering the police are wholesale ignoring citizens rights
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      - Quiet Lurcker, 14 Oct 2014 @ 8:17am
        
        Re: Re: Re: Re:
        No. By asserting that the founder of silk road leased those servers, they have tacitly admitted his privacy interest in the data they host.
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    - no name for a name, 14 Oct 2014 @ 6:15am
      
      Re: Re: Re:
      "...evidence creates a privacy interest in the evidence."
      
      I guess I am confused because not only does she seem to be saying that this is not true but that the whole idea that evidence must be credited and explained in someway is also not correct unless you claim it somehow, as in the State can use this gun as evidence against you without backing up why they believe it's your gun or providing evidence of that and you cannot contest that unless you claim that it IS your gun.
      I no law speaking man but this just seems like it throws that idea of establishing the credibility of evidence out the window.
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  - Anonymous Coward, 14 Oct 2014 @ 9:01am
    
    Re: Re:
    The issue here is the Catch-22 explained over at Ars Technica: either Ulbricht is the 'owner' of the Silk Road servers, and thus has standing to sue over the breach of his civil liberties, but admits that he is responsible for Silk Road; or he can't contest the evidence in the criminal trial because he hasn't asserted that those servers are his 'property', and thus does not have standing to contest that.
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    - DavidL, 14 Oct 2014 @ 9:14am
      
      Re: Re: Re: the Catch-22
      That seems like an accurate summary of the judge's statement, but it seems it ought to be the other way around – the prosecution is claiming that the servers are his, so they should have to show that they respected the privacy interest they believe exists when they performed their search. Either Silk Road does belong to the defendant, in which case he's entitled to Fourth Amendment protections when the government searches it, or it doesn't belong to him, in which case he has no such protections....but the entire case is baseless and should be dismissed immediately. Having that issue instead turn on what the defendant asserts and when is quite perverse.
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  - Anon, 14 Oct 2014 @ 9:22am
    
    Not Exactly
    So the police can do whatever they want as long as the person whose rights are being violated can come to a deal with them? My banking records indicate I paid you $10,000 and even if that evidence was illegally obtained, you have no right to challenge it?
    
    Heck, why don't the FBI just collude with the SEC, the FCC, OSHA, FDIC, and a host of other regulatory agencies to put the screws to any company that fails to make their records an open book to law enforcement?
    
    you don't have to give personal and private data or physical evidence to a third part for them to have (possibly) incriminating evidence on you.
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    - art guerrilla (profile), 14 Oct 2014 @ 10:20am
      
      Re: Not Exactly
      "Heck, why don't the FBI just collude with the SEC, the FCC, OSHA, FDIC, and a host of other regulatory agencies to put the screws to any company that fails to make their records an open book to law enforcement? "
      
      why not indeed...
      i'm certain The They (tm) *have* been doing this and more when we look at how many korporations have been talked into merely handing over 'stuff' whenever the alphabet soup spooks ask...
      
      sure, i bet more than a few are conditioned to respond to those requests without batting an eyelash; but we know the ones who have not, HAVE BEEN subject to various 'threats' by the gummint goons...
      
      an IRS audit here, an OSHA fine there, and before you know it, your bidness is in deep doo doo...
      
      so, stand on law (?) and principle and have a good possibility of your bidness being ruined or crippled; or turn over some stupid data for some poor schmuck you don't know ?
      you know which one they will choose 99% of the time...
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the threat to peace is the USA, 14 Oct 2014 @ 4:42am

go watch the propoganda on usa 60 minutes
the fbi is not our friend neither is the nsa
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Anonymous Coward, 14 Oct 2014 @ 4:50am

Precedent
Pay attention, foreign powers. The U.S. Executive Branch feels entitled to hack private servers in your nations, with no judicial review. U.S. Courts have no objection to having our gov't hack private servers in your countries - won't even review the legality after the fact...don't care.

Feel free to cite these facts this in your replies to our gov't, if ever an agency of your gov't is caught hacking private servers in the U.S. Better yet, if you plan to hack servers in the U.S., just publish this precedent as your pre-existing get-out-of-jail-free card, so that we don't waste our tax-dollars with official complaints.

Ain't karma grand?!
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no name for a name, 14 Oct 2014 @ 5:14am

Interest
This logic seems a bit confusing, I admit to not understanding all the rules of evidence, but isn't and examination and explanation of where evidence came from SOP?
She seems to be saying that's not necessary, I sort of thought that this was especially true for evidence that comes from possibly illegal sources(and here I am in law and order level understanding), but for instance the testimony of a burglar that says they saw a body in your living room.
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Anonymous Coward, 14 Oct 2014 @ 8:15am

Conflicts between judicial interpretation and obvious moral interpretation
I see a lot of comments here arguing back and forth, at least some of which seems to be because people are not indicating whether they are analogizing the judicial interpretation shown in the Silk Road case or whether they are stating how they believe the system should work. I think many of the posters here believe that the system should be that a defendant in a criminal trial has a Fourth Amendment interest in any government-obtained evidence used against him, regardless of where it was stored. In the case of police obtaining evidence from a third party, the distinction would be that if the police obtained it illegally, then the defendant can challenge it. If the police obtained it with a warrant issued upon real evidence and the warrant particularly described the evidence used against this defendant, then the defendant could challenge it, but would probably lose unless the warrant was legally deficient. If the police obtained it because the third party voluntarily (i.e. not as part of any deal with the government, plea, paid, or otherwise) surrendered it, then there was no government search at all and thus there is no search/seizure to challenge.

The statements from the judge in this case take a very different interpretation, but also seem surprisingly balanced for what they try to claim. I interpret that to mean that the judge may not agree with the ruling, but existing law and precedent obligate the judge to rule in this way. If so, while I disagree with the judge's conclusion, I can respect that the solution lies not in challenging the judge's conclusion, but in challenging the underlying law that led to it.
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anon, 14 Oct 2014 @ 10:14am

Re: Makes No Sense
Remember, that's the exact same ruling the courts handed down when people tried to sue the government over the NSA's metadata collection. "Sorry John Doe, but the actual data was collected and stored on Verizon's servers when we tapped their lines. Since you don't own those servers or phone lines, you have no standing to sue."
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Nicholas Weaver (profile), 14 Oct 2014 @ 10:18am

Ulbricht's lawyer is an idiot...
Ulbricht and his lawyer were given multiple chances to have Ulbricht declare a 4th Amendment interest in the server, including a specific offering from the judge where the lawyer responded "we will rest on our papers", despite this being a very well settled case law.

The theory being that such a declaration would constrain Ulbricht's legal strategy.. If Ulbricht did provide such a declaration, only if he testified that the server wasn't his would the prosecution be able to say "uh, you said this server was yours".

But, idiot laywer forgot that the bell has already been rung: Ulbricht submitted a similar declaration (under effectively the same terms), in the civil forfeiture over the 180k odd bitcoins siezed from his laptop. If Ulbricht is so foolish as to get on the stand, the prosecution will go "So, how did you get those millions of dollars worth of Bitcoins on your computer"?

If Ulbrich replies with anything other than "Uh, you got me", the prosecution then has a rebuttal expert show how those Bitcoins were derived from Silk Road, by tracing all the 100s of law enfocement and other test purchases and showing how the premium flowed into DPR's booty-chest.

Overall, it feels like Ulbricht's lawyer has a bad hand, but is grandstanding to the tech press and crowd who wants to see Ulbricht as some sort of hero, with talk of general warrants and suchlike. But the only realistic hope Ulbricht had was to suppress the evidence collected from the Silk Road server: as long as the server stands (and it now does), the good ship Revenge is well and truly sunk.

If Ulbricht's lawyer is wise, he'll get his client to plead out with something that will see Ulbricht released in 10 years, because the feds are throwing the book at him with mandatory minimums, and haven't even started yet with the murder-for-hire charges.
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Anonymous Coward, 14 Oct 2014 @ 10:18am

What I find interesting about all this. The US government is declaring to the rest of the world that they feel entitled to hack foreign servers without permission from the host country's judiciary.

Yet when the Chinese government does the same thing to American servers. The DOJ issues indictments against them.

American exceptionalism and double standards, indeed.
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