> Ulbricht hadn’t sufficiently demonstrated that the server belonged to him, and thus can’t claim that his privacy rights were violated by its search.<p>Wait, wait, wait. Hold the phone.<p>So any property which, at the time of a search, hasn't been "sufficiently demonstrated [that it belongs to you]" isn't protected, according to this judge, by the fourth amendment?<p>So for one example, if you sign up to gmail or Facebook using anything other than your real name, they can break it, conduct a search and then whatever they find is totally admissible in court just because they didn't know who it belonged to?<p>Isn't it now in the best interests of the police to avoid finding out who something belongs to since without knowing the fourth amendment doesn't exist and warrants aren't a requirement?<p>Here's what I don't get about this case: The FBI is obviously lying about how they got the information they have. They clearly broke into the Silk Road servers. However they could have certain got a warrant to do so had they just presented what they knew at that time about the enterprise. So why didn't they? Laziness? Incompetence? Or just because they knew they'd get away without it (per this)?<p>Honestly I hope they fight this case on that matter of law and it gets thrown out. We cannot have the fourth getting chucked out any time someone invokes anonymity, that's not how it was meant to work.
I can't fathom why the FBI would have been required to obtain a search warrant in this case because they weren't the ones who searched the servers - the Reykjavik police seized the data under Icelandic law and handed it over to the FBI[1]. According to the FBI's testimony[2], the CAPTCHA on the login page was leaking the site's IP address. The "hacking" that the defense is accusing the FBI of conducting was apparently entering a few invalid logins which caused the CAPTCHA to appear.<p>As an analogy, if I keep a murder weapon hidden on my property, the police are required to get a search warrant. If I instead keep it at my friend's house, I have no 4th Amendment rights when my friend gives it to the police, especially if the crux my defense is "it wasn't my gun."<p>[1] <a href="http://www.scribd.com/doc/238796613/Silk-Road-Prosecution-4th-Amendment-Rebuttall" rel="nofollow">http://www.scribd.com/doc/238796613/Silk-Road-Prosecution-4t...</a> (page 12)<p>[2] <a href="http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability" rel="nofollow">http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-...</a> (page 3)
Not sure this counts as a technicality. Do all foreign objects get 4th amendment protections (the servers were in Iceland)? Can I invoke defense of someone else's 4th amendment rights -- even without specifying who that is? Both of these appear to have the answer "no", so I'm not sure this is a "letter but not spirit of the law" thing. Sounds like the judge was just doing his job.<p>If the servers aren't his, how can he say his privacy was violated? Therefore, the violation is contingent on establishing it was his, which he hadn't done.
This begs the following questions: Did the Icelandic government give FBI permission to hack a server that resides on their sovereign soil? If the identity of the owner of a piece of property cannot be confirmed, it's okay to sieze/hack/etc? If I hid evidence in YOUR car, wouldn't the police/FBI still need a warrant or at least permission from YOU to access it?<p>Bottom line here is there was no warrant, and as far as I can tell, no attempt to gain any sort of permission to access property-- and in a foreign country no less. I thought the FBI's purview was limited to domestic soil.<p>Anyone here a security expert with experience with TOR? The FBI's claim that they just typed random values into a login to accidentally reveal the server's IP address seems far fetched.
I believe Ulbricht has just been given grounds for appeal if the trial goes against him. I find it highly dubious that the FBI has legal authority to access that server without the permission of its "owner" or a warrant. Regardless of whether Ulbricht was in possession of the server (as renter) or it belonged to someone else, the FBI would still need permission of that person or a warrant to search the server. In this case, I suspect that a U.S. warrant would not do as the server was located in Iceland. Probably, they would need cooperation from the Icelandic police and a local warrant. On top of all of this, don't forget that the FBI does not have authority to operate outside of the U.S. without cooperation from the locals.
So...the government gets to have it both ways? The reason it didn't require a warrant for a search is that it can't be shown that it was his server, but the case itself hinges on proving that it was indeed his?
As a refresher to what exactly happened in the investigation that the judge ruled "not an illegal search":<p>1. FBI agents noticed the captcha mechanism on Silk Road was not configured to go through Tor (revealing the server IP address)<p>2. They asked Icelandic police to get an image of the server.<p>Another part of the argument is that the TOS of the data center said that servers could be "monitored" for lawful use (probably removing expectation of privacy questions, independent of localisation, in the prosecution's mind).<p>I wouldn't call this "hacking", but the constitutional question remains. I think the crux of this is that information obtained from foreign agents seems to be admissible independent of how they obtained it. Not a fun state of affairs.
The judge states in the ruling that she relied in part on this Supreme Court decision:<p><i>"A person who has been aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed."</i><p>Prosecutors have long found our constitutional protections to be inconvenient in their pursuit of "justice". Over the years, however, they have managed to obtain Supreme Court decisions, like this one, that pierce through these protections in every meaningful way. This particular ruling opened up the floodgates, and it seems that the FBI is actively utilizing it.
Key quote:<p>> If successful, the move would have likely made Ulbricht nearly impossible to convict on the central charges of narcotics and money-laundering conspiracy that he faces.<p>The judge's instructions to his clerk was probably something like: We're going to deny the defendant's motion; find me the legal precedent to do so.
strangely how the ruling goes against the logic. I mean the server either belongs to the guy and then the 4th applies ie. the evidence from the search of the server should be thrown out, or the server doesn't belong to the guy and thus the same evidence don't have a place here. Logically these are the only 2 options. Yet the ruling follows the 3rd way - the 4th doesn't apply and the evidence still can be admitted.
The judge in the case, Katherine Forrest, issued a courageous ruling last year in the case of Hedges vs. Obama, where she ruled that the indefinite detention powers of the NDAA were unconstitutional. Unfortunately, the Obama administration appealed the ruling and won.<p><a href="http://en.wikipedia.org/wiki/Hedges_v._Obama" rel="nofollow">http://en.wikipedia.org/wiki/Hedges_v._Obama</a>
Whoa. Anyone stopped to consider what this might mean for a future where all content becomes hash-addressable on an anonymizing network... for instance, telehash over tor. So if every site is anonymous, and isn't certain to be owned by citizen of nation X (based on geography), then it's ok to break into. Anything found on any anonymous server is admissable. Disputing the break-in would require claiming the rights of citizenship, ie. claiming ownership of the server.<p>So basically, any hacked system with incriminating data is almost an automatic hit against a defendant.<p>This seems like bad news for due process.
Never understood the whole 'illegal privacy invasion' thing. Sure, it should be prosecuted if nothing was found, BUT if something is found, who cares how it was found? Unless it was planted of course, but AFAIK these two points are not connected. Can someone explain?<p>EDIT: Not that it should not be prosecuted if something is found also, but WHY does the obtained evidence have to be dismissed?
As someone who is not a lawyer I wonder why the defense isn't allowed to simply amend their motion to insert language "claiming" the server in the manner the judge described.
I guess as a cop, if my friend breaks into a known criminal's house. I can use anything my friend finds against the criminal. This makes things easier.