The court rejected a defense claim that the FBI illegally hacked Silk Road
Ross Ulbricht’s lawyers spent the last two months trying to divert attention from his client, who was accused of creating Silk Road (a drug sale site with a total volume of about a billion dollars in transactions), to the possible illegality of the FBI’s investigation itself. Last week, the judge leading the case made it clear that Ulbricht would appear before the court, not the Bureau.
In the 38-page definition, Judge Kathryn Forest rejected a defense motion to exclude evidence based on the argument that law enforcement authorities violated Ulbricht’s privacy, protected by the Fourth Amendment from an unreasonable search. Lawyers for the defendant claimed that the FBI illegally, without a court order, hacked the Silk Road server in Iceland to locate it.
The decision to reject the above argument comes down to what can be considered as a fatal formality: the judge claims that even if the FBI hacked the Silk Road server, Ulbricht did not provide sufficient evidence that the server belonged to him and thus cannot claim that his rights were violated during the search.
It looks like a hopeless situation. After all, if Ulbricht said that the server belongs to him, he would have exposed himself. But Judge Forest nonetheless asserts that: "... the accused could nevertheless prove during the pre-trial hearing the presence of personal information on the server by making a statement under oath that could not be used against him during the trial as evidence of his guilt. But he decided not to. ”
Ulbricht’s lawyers have not yet given any comments on this.
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Judge Forest’s decision put an end to the extensive pre-trial debates around the mysterious events that led the FBI to an Icelandic server that allegedly belonged to Ross Ulbricht. While the defense sought to invalidate the evidence obtained because of the illegality of the investigative actions themselves (if satisfied, this would have made it practically impossible to convict Ulbricht on the main charges of drug trafficking and money laundering), the prosecution defended a different position. According to the Bureau’s statements, the federal agent simply entered “random characters” into the authorization form on the Silk Road website until an error in the configuration of the anonymous Tor browser resulted in a leak of the real IP address of the site.
The security community and the expert attracted by the protection of Ulbricht quickly found serious inconsistencies in this story. They argue that in reality, the FBI's statement sounds like a subtly veiled description of the invasion using conventional hacking methods. The defense called for a hearing for cross-examination with FBI agents.
However, the final response of the representatives of Themis to these arguments of the defense practically did not touch the accusations of “hacking”. Instead, attorneys for the Ministry of Justice told the court that it didn’t matter whether the Silk Road site had been hacked.
Even if the FBI agents got remote access to the server as a result of hacking and not having a warrant for it, it is still completely legitimate in accordance with the position of the government. Ministry of Justice separately indicates that the server was located outside the United States, as well as the company-owner is also not American.
Professor Jennifer Granik of Stanford University believes that these arguments contain serious flaws.
Firstly, the FBI’s right to hack into any foreign website without a warrant has never been established during the judicial process ( note: translator: American law is a precedent, so the absence of a judicial precedent is so important ). Secondly, since Silk Road worked only through an anonymous Tor browser, the FBI could not even know who hosted this site or where it was located (it could well have been an American company and an American data center), before they took hacking attempt.
“Investigative actions conducted abroad should still be justified,” Prof. Granik told WIRED magazine. “If the target is a US citizen and an American agent is trying to find information about him, the Fourth Amendment applies to this case.”
She argues that this argument, as well as other issues surrounding the FBI covert investigation, at least deserved a separate court hearing. “I believe that the defendant’s statements that his data transmitted through the server are protected by the 4th Amendment is enough for the government to explain why their investigation does not cross this line”
Now such hearings will never take place. Instead, next time we will hear about the progress of the FBI vs Silk Road case, most likely next month, in which the trial of Ross Ulbricht is scheduled.
In the 38-page definition, Judge Kathryn Forest rejected a defense motion to exclude evidence based on the argument that law enforcement authorities violated Ulbricht’s privacy, protected by the Fourth Amendment from an unreasonable search. Lawyers for the defendant claimed that the FBI illegally, without a court order, hacked the Silk Road server in Iceland to locate it.
The decision to reject the above argument comes down to what can be considered as a fatal formality: the judge claims that even if the FBI hacked the Silk Road server, Ulbricht did not provide sufficient evidence that the server belonged to him and thus cannot claim that his rights were violated during the search.
It looks like a hopeless situation. After all, if Ulbricht said that the server belongs to him, he would have exposed himself. But Judge Forest nonetheless asserts that: "... the accused could nevertheless prove during the pre-trial hearing the presence of personal information on the server by making a statement under oath that could not be used against him during the trial as evidence of his guilt. But he decided not to. ”
Ulbricht’s lawyers have not yet given any comments on this.
')
Judge Forest’s decision put an end to the extensive pre-trial debates around the mysterious events that led the FBI to an Icelandic server that allegedly belonged to Ross Ulbricht. While the defense sought to invalidate the evidence obtained because of the illegality of the investigative actions themselves (if satisfied, this would have made it practically impossible to convict Ulbricht on the main charges of drug trafficking and money laundering), the prosecution defended a different position. According to the Bureau’s statements, the federal agent simply entered “random characters” into the authorization form on the Silk Road website until an error in the configuration of the anonymous Tor browser resulted in a leak of the real IP address of the site.
The security community and the expert attracted by the protection of Ulbricht quickly found serious inconsistencies in this story. They argue that in reality, the FBI's statement sounds like a subtly veiled description of the invasion using conventional hacking methods. The defense called for a hearing for cross-examination with FBI agents.
However, the final response of the representatives of Themis to these arguments of the defense practically did not touch the accusations of “hacking”. Instead, attorneys for the Ministry of Justice told the court that it didn’t matter whether the Silk Road site had been hacked.
Even if the FBI agents got remote access to the server as a result of hacking and not having a warrant for it, it is still completely legitimate in accordance with the position of the government. Ministry of Justice separately indicates that the server was located outside the United States, as well as the company-owner is also not American.
Professor Jennifer Granik of Stanford University believes that these arguments contain serious flaws.
Firstly, the FBI’s right to hack into any foreign website without a warrant has never been established during the judicial process ( note: translator: American law is a precedent, so the absence of a judicial precedent is so important ). Secondly, since Silk Road worked only through an anonymous Tor browser, the FBI could not even know who hosted this site or where it was located (it could well have been an American company and an American data center), before they took hacking attempt.
“Investigative actions conducted abroad should still be justified,” Prof. Granik told WIRED magazine. “If the target is a US citizen and an American agent is trying to find information about him, the Fourth Amendment applies to this case.”
She argues that this argument, as well as other issues surrounding the FBI covert investigation, at least deserved a separate court hearing. “I believe that the defendant’s statements that his data transmitted through the server are protected by the 4th Amendment is enough for the government to explain why their investigation does not cross this line”
Now such hearings will never take place. Instead, next time we will hear about the progress of the FBI vs Silk Road case, most likely next month, in which the trial of Ross Ulbricht is scheduled.
Source: https://habr.com/ru/post/240675/
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