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Judge Rejects Defense That FBI Illegally Hacked Silk Road, on a Technicality

233 points by ssclafani 12y ago

gear54rus 12y ago
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? EDIT: Not that it should not be prosecuted if something is found also, but WHY does the obtained evidence have to be dismissed?
- cheald 12y ago
  > but WHY does the obtained evidence have to be dismissed? Because to permit it effectively allows the end to justify the means. It would effectively permit law enforcement to ignore any and all laws they wanted to in the course of investigations in order to produce a favorable result. Why the hell would you only conduct searches within the bounds of the law if you could get the same result more expediently by just doing it however you want? If the police are willing to break the law, then who is going to enforce the consequences for doing so?
- ianferrel 12y ago
  Because incentives affect behavior. If you're allowed to use evidence from an illegal search, there's a huge incentive to keep doing illegal searches. If you want to curtail illegal searches, then you make such searches have a worse payoff.
  - pbhjpbhj 12y ago
    Why not have it that the court can use evidence that is presented to it. Those committing illegal searches should be prosecuted. Obviously the evidence of the illegal search means a conviction is highly likely. Ignoring evidence that points to the facts of a case seems futile if you wish to achieve justice.
- ipsin 12y ago
  http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree In short, if illegal techniques can be used to find evidence, and that evidence can be admitted, that's a pretty powerful reason to use illegal techniques. Barring that evidence is a way to prevent that abuse. Aggressively prosecuting the use of illegal techniques is another way, but given that we're not willing to prosecute prosecutors who railroad the innocent or government employees who torture other people, well, I'd say that's a non-starter.
  - gear54rus 12y ago
    Thank you and others, I think I see now. Though I think retaliation (fines or maybe some jail time) would be more effective measure to prevent abuse than passive dismissal.
    - cheald 12y ago
      Fines against the police department are just fines against the taxpayers. Fines and jail time for individual officers are not possible because of qualified immunity. http://en.wikipedia.org/wiki/Qualified_immunity http://en.wikipedia.org/wiki/Qualified_immunity
      - pbhjpbhj 12y ago
        That Wikipedia article doesn't say you can't prosecute, it just says that government workers are immune unless they reasonably should have known they were violating the constitution. The FBI know they need warrants, it's got to be FBI 101. When you take the stand in court you are an individual giving testimony though. The rule of law means that if you perjure yourself you should be tried.
    - yxhuvud 12y ago
      In practice, it is hard to get prosecutors to go after other prosecutors and/or police though. /lives in Sweden, where all evidence is admissible, but where the prosecutors should, but don't, go after their own on transgressions.
- tgcordell 12y ago
  I have a notion that you are not a natural born American citizen. Please, don't hold it against me if this assumption is wrong, but its the first thing that springs to my mind by your confusion proposed. I (and many others) view the government as a service by the people, for the people. It should adhere to the same laws and constraints that the people do in order to be kept in check and not all-powerful. One of these regulations is that citizens have powerful rights of ownership over their personal belongings and no one should be able to rifle through them without permission. Objects/data/articles/ideas can be held private for a multitude of reasons, and due process should be followed in order to gain access to these details. By removing the government's requirement to abide by this, you grant it an immense power to control and have knowledge of your life. That simply isn't necessary for the true function of government. Our original constitution and amendments attempted to protect its citizens from that fear.
  - gear54rus 12y ago
    You are correct, I am not an American citizen at all :) I guess what you said is true for any government but does it really matter? They get what they want in the end. Be it Alexander, FBI or someone from my country.
    - tgcordell 12y ago
      I view that form of thinking as a very slippery slope. The government should get what it wants, but what it wants should be defined by the people. Currently, in the HN community, the view of what the government is doing and what the rules are aren't aligned. Thus, we are pushing for rectification. We've got to take a stand somewhere. That's the only way progress is made.
    - walterbell 12y ago
      > "They get what they want in the end" There is no "they". There are individuals who influence each other, each of whom may change their position depending on the position of others. History is replete with the consequences of changes inspired by advisers to advisers of leadership. There is no guarantee that you can influence outcomes, but it is exceedingly likely that if you believe that you cannot influence outcomes, then you will not.
- llamataboot 12y ago
  Because this is the basic deterrent against illegal searches. By making all evidence from an illegal search be thrown out, it offers a real-world incentive to not violate the 4th Amendment.
- venomsnake 12y ago
  2 words: General Warrants More than 2 words - If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged. - Cardinal Richelieu You get into situation where you tell a prosecutor - find this guy guilty of something and throw him into jail.
- destructaball 12y ago
  The idea is that if you allow evidence which is gathered illegally you incentivize the gathering of evidence illegally
- deleted 12y ago
  [deleted]
Someone1234 12y ago
> 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. Wait, wait, wait. Hold the phone. 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? 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? 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? 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)? 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.
- dietrichepp 12y ago
  > 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? That's not what this means. You can't claim fourth amendment protection on someone else's property: I can't claim my rights were violated because the police searched your car. The court is saying that you have to claim it's your car first before you can claim that your rights were violated by the search. (Well, not exactly. The situation is more nuanced.) To put it another way, the court's not saying that this was legal, or that nobody's rights were violated. The court is only denying Ulbricht's specific claim that his rights were violated, and the denial seems to be based on a procedural technicality. Yes, this is bad.
  - TrevorJ 12y ago
    This logic seems like it would apply to cell phones which have been subsidized by a contract which continues to exist as well. Aren't they considered to still be legally the phone companies' till you've reached the end of said contract? Bad indeed.
hawkice 12y ago
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. 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.
- msandford 12y ago
  If the servers aren't his, why is he in court? Doesn't that mean that the real mastermind behind silk road is still out there and that the FBI got the wrong guy? That's the least effective rebuttal I've heard in a while. Obviously the government is going to do whatever it can to prosecute the guy, rules be damned.
  - gohrt 12y ago
    In FBI logic, something you use is not protected from search, if someone else owns it. The logic goes, that other party could conceivably one day break your trust and divulge your secrets, therefore you have no expectation of privacy. Same argument they use to read your mail when it is in your mailbox.
    - ewoodrich 12y ago
      Opening first-class mail and standard parcels from the Postal Service requires a warrant[1] by federal law, whether or not it is in a mailbox. Is there some specific example you are referencing? [1] https://postalinspectors.uspis.gov/contactUs/faq.aspx https://postalinspectors.uspis.gov/contactUs/faq.aspx
      - abcabc321321123 12y ago
        That is correct, but the warrant requirement does not follow common sense. Let me try to explain further with an example. A sends a letter to B with information in the letter that implicates C in a crime. The FBI does not have a warrant to open and search the letter. The FBI goes ahead and searches it anyway. Now, the FBI has evidence that C was involved in a crime. C, obviously, would like to challenge the search based on the warrant requirement of the 4th Amendment. It is here where the warrant requirement diverges from common sense. C does not have "standing", which is a legal term of art that basically means the court can hear and decide the case, to challenge the search because the mail was not his. Therefore, without standing, C cannot challenge the search even though the FBI did not have a warrant for the initial search. In contrast, A would have standing because he has a "reasonable expectation of privacy" in his own mail (assuming there was incriminating information against A in the letter).
goodcanadian 12y ago
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.
- pdabbadabba 12y ago
  The problem with your analysis is that investigators' illegally gaining access to evidence does not in itself necessarily trigger the suppression-of-evidence remedy for Fourth Amendment violations. The suppression remedy is reserved for constitutional violations. So, yes, whether or not the evidence should have been suppressed crucially depends on Ulbricht's relationship with the server and whether he had a reasonable expectation of privacy in its contents.
  - goodcanadian 12y ago
    I wasn't claiming that he would definitely win, just that the failure to explore this issue gives a probable avenue of appeal. IANAL, of course, so I could be wrong.
- nemo 12y ago
  'I find it highly dubious that the FBI has legal authority to access that server without the permission of its "owner" or a warrant.' The server was public, the Feds don't need a warrant to investigate public facing web content any more than they'd need a warrant to look at a storefront. They fuzzed some content to get the thing to leak an IP (according to their account). Given the incompetence of the Silk Road admin, that's honestly not a real stretch. There were SQL injection bugs in the search on the site, and he left PHPMyAdmin running on the server. It was amateur hour. With that IP they contacted the ISP in Iceland who gave up the data since the server was violating it's TOS, and the Iceland authorities got legally involved (with no legal issues in that search). The fuzzing of input to get the IP is iffy, but it's certainly not a cut and dry case where a warrant would be required. The investigators did get warrants for some of the evidence they collected (esp. the evidence that tied , and I'd imagine if there was a a clear legal requirement for a warrant to investigate the web server, since they had overt probable cause it would have been trivial to get one. Besides that the only way Ulricht can claim that the search was illegal is to admit that he owned the server, at which point that admission will certainly put him in prison, so an appeal isn't going to do him any good.
koenigdavidmj 12y ago
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?
- llamataboot 12y ago
  Kind-of. I think the case hinges on all the evidence of wrong-doing that was found on the server. Obviously if someone else was DPR, they wouldn't have a case against Ulbricht. But this ruling doesn't really effect whether it belonged to him or not, only that he did not /own/ it. It wasn't his server, but a 3rd party's server where he had his data. And there was no ruling on the legality of the search methods (ie; the judge could have ruled that the server had 4th Amendment protections, but that they weren't violated) only that in this case they didn't apply.
- anologwintermut 12y ago
  The article quotes the judge as saying" "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)" So it's not as Kafkaesc as the title makes it sound---he could have said it's his without incriminating himself---but it's still pretty kafkaesc in that it would have effectively prevented him from testifying.
  - themgt 12y ago
    He wanted the ability to claim 4th amendment protections on his server while simultaneously denying that it was his server. For the government to tell him he can't have it both ways in fact seems almost the opposite of Kafkaesque
- anigbrowl 12y ago
  That's not contradictory; you're conflating past and future. Suppose you're a cop and you find a box with a label on the outside saying 'drug ca$h LOL.' You open it and to your surprise find $1 million dollars, some cocaine, and a passport in the name of K Ingpin. Later you establish K. Ingpin's whereabouts and arrest him. It turns out his fingerprints are all over the box and contents. You had probable cause to investigate what appeared to be a cache of proceeds from the sale of contraband, despite not knowing who it belonged to. On discovering the identity documents in such close proximity to actual contraband, you had probable cause to locate and arrest that person on suspicion of drug dealing. It's actually Ulbricht who wants to have it both ways. Asserting 4th amendment rights effectively amounts to saying 'hey, that's mine and you snoops had no right to access it.' Ulbricht refuses to admit or assert that the servers were his in any meaningful way, even though the prosecution could not put such an admission before the court as evidence. The only way the prosecutors could bring it up is if he took the stand and said 'no way, that's not my server,' in which case they'd say 'but you told the court that it is.' So as a defendant you can say that evidence is the result of an illegal search, or you can disclaim ownership of it, but not both at the same time. I don't know whether the original warrant was deficient or not, and haven't looked it up. but bear in mind that the job of the trial court is not to establish whether it was valid (unless there is glaring evidence to the contrary), but whether it is admissible as evidence to be considered by the finder-of-fact (typically a jury). It's up to the defense counsel to raise those arguments, not for the court to preempt. In this case, the court is pointing out that it told the defense exactly what it needed to do to to make a procedurally valid 4th amendment challenge, and the defense failed to do so. It's not the court's job to step in and assist the defendant if the the defendant's lawyer is no good, although bad lawyering is sometimes the basis for an appeal (on the grounds of ineffective assistance of counsel, in which case the appeal court could order a new trial if it agreed with the claim). In the American legal tradition (and the English one from which it derives), courts are not investigative bodies, they are determinative ones, which can only rule on matters brought up by one of the parties. This is completely different from how courts operate in jurisdictions based on Napoleonic law, in which the functions of prosecutor and judge and virtually combined. Obviously this is a highly simplistic summary, please take it with a grain of salt as I can't compress centuries of different legal traditions into a few sentences.
deleted 12y ago
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- kristofferR 12y ago
  The Silk Road TOS prohibited the sale of "anything who's purpose is to harm or defraud", neither credit cards or hit men were sold there.
jnem 12y ago
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? 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. 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.
- phaer 12y ago
  > 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. That's hardly related to TOR, but most probably a misconfiguration of the web-server or application which leaked the IP.
  - lbenes 12y ago
    > That's hardly related to TOR, but most probably a misconfiguration of the web-server or application which leaked the IP. According to http://motherboard.vice.com/read/how-did-the-fbi-find-the-silk-road-servers-anyway http://motherboard.vice.com/read/how-did-the-fbi-find-the-si... "He also says that the logs provided in the new evidence don't match up with the pages described in Tarbell's declaration." So it's most likely a case of parallel construction
- csandreasen 12y ago
  The FBI is claiming that the CAPTCHA on the login page was misconfigured and was leaking the IP. Here's the relevant testimony[1]: In or about early June 2013, another member of CY-2 and I closely examined the traffic data being sent from the Silk Road website when we entered responses to the prompts contained in the Silk Road login interface. This did not involve accessing any administrative area or “back door” of the site. We simply were interacting with the website’s user login interface, which was fully accessible to the public, by typing in miscellaneous entries into the username, password, and CAPTCHA fields contained in the interface. When we did so, the website sent back data to the computer we were using – specifically, the Silk Road homepage, when we used valid login credentials for undercover accounts we had on the site, or an error message, when we used any username, password, or CAPTCHA entry that was invalid. Upon examining the individual packets of data being sent back from the website, we noticed that the headers of some of the packets reflected a certain IP address not associated with any known Tor node as the source of the packets. This IP address (the “Subject IP Address”) was the only non-Tor source IP address reflected in the traffic we examined. The Subject IP Address caught our attention because, if a hidden service is properly configured to work on Tor, the source IP address of traffic sent from the hidden service should appear as the IP address of a Tor node, as opposed to the true IP address of the hidden service, which Tor is designed to conceal. When I typed the Subject IP Address into an ordinary (non-Tor) web browser, a part of the Silk Road login screen (the CAPTCHA prompt) appeared. Based on my training and experience, this indicated that the Subject IP Address was the IP address of the SR Server, and that it was “leaking” from the SR Server because the computer code underlying the login interface was not properly configured at the time to work on Tor. [1] http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-... (pages 3-4)
clamprecht 12y ago
Key quote: > 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. 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.
- aeturnum 12y ago
  I'm sure it has nothing to do with his lawyer screwing up: >Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn’t be used against him as evidence.
trhway 12y ago
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.
- anigbrowl 12y ago
  No, logically those are not the only two options. What about the possibility that the guy says it doesn't belong to him, but he's lying? That's essentially the prosecution's position right now, since the defendant has refused to admit the server is his even though that admission would not itself be admissible (as it would have been made to the court, not the prosecution). Legal rulings are like scientific papers - you should not rely on how the press reports them to get a full understanding of what they mean. Read the original document on which the report is based, which addresses the dichotomy you are imagining.
  - Dylan16807 12y ago
    Huh? How is that a different option. What he says shouldn't matter at all to what evidence is admissable.
    - anigbrowl 12y ago
      But it does, for reasons laid out on page 12 of the opinion. In short, a 4th amendment attack requires your privacy to have been violated, not just anyone's. You can't say 'that box is not mine, and looking inside it was a violation of my privacy rights'; you must pick one argument or the other. If it really is not your box then you don't have any privacy expectation. The 4th amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects [...' (emphasis added). You don't have a right to security in other people's property, eg if we are both drug dealers and I keep notes about you in my notebook, you can't make a 4th amendment claim about the privacy of my papers even though they incriminate you. Even if those papers are the fruits of an illegal search of my apartment, only I have the right to demand that evidence is suppressed. If I don't (perhaps because I cut a deal for immunity, or perhaps because I was smart and blew town before the police suspected me) then that's just too bad for you.
csandreasen 12y ago
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. 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." [1] http://www.scribd.com/doc/238796613/Silk-Road-Prosecution-4th-Amendment-Rebuttall http://www.scribd.com/doc/238796613/Silk-Road-Prosecution-4t... (page 12) [2] http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-... (page 3)
- dlss 12y ago
  The hacking is what let them know which server to have the Icelandic authorities seize.
  - csandreasen 12y ago
    The "hacking" was speculation on the defense's part when they filed their motion in August. If you read the motion[1], because the defense didn't yet know how the FBI located the server, Ulbricht's lawyer wrote a long statement speculating that the NSA/DEA was providing the information to the FBI through parallel construction. The defense did not show any proof of their accusation. A month later, the FBI gave sworn testimony[2] indicating that they found the server because Ulbricht had failed to configure it properly and it was leaking out its actual IP outside of Tor channels. There hasn't been any proof shown that the FBI hacked his server. A number of people have claimed in the past that they came across the actual IP for Silk Road's server as a result of misconfiguration[3][4], so frankly it doesn't surprise me at all that the FBI also found a leak. [1] https://www.scribd.com/doc/235692879/Silk-Road-4th-Amendment-Memo https://www.scribd.com/doc/235692879/Silk-Road-4th-Amendment... (starting on page 40 of the PDF - the page number in the document itself is 28, entitled "The Searches and Seizures In This Case Failed to Satisfy the Fourth Amendment") [2] same link as my grandparent comment (https://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability https://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk...) [3] http://www.reddit.com/r/SilkRoad/comments/1b1lvy/warning_the_silk_road_revealed_its_public_ip_last/ http://www.reddit.com/r/SilkRoad/comments/1b1lvy/warning_the... [4] http://www.reddit.com/r/SilkRoad/comments/1dmznd/should_we_be_worried_showing_on_login_page/ http://www.reddit.com/r/SilkRoad/comments/1dmznd/should_we_b...
maceo 12y ago
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. http://en.wikipedia.org/wiki/Hedges_v._Obama http://en.wikipedia.org/wiki/Hedges_v._Obama
- retrogradeorbit 12y ago
  That's the case that Hedges said if they lost it meant the US was clearly a tyranny. And then they lost. Seems Judge Forrest got the memo.
downandout 12y ago
The judge states in the ruling that she relied in part on this Supreme Court decision: "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." 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.
patcon 12y ago
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. So basically, any hacked system with incriminating data is almost an automatic hit against a defendant. This seems like bad news for due process.
- pyrophane 12y ago
  No, they address that in the article. There was a way under the law that the defense could have "claimed" the server for the purpose of their motion to suppress that couldn't then be used against them during trial.
rtpg 12y ago
As a refresher to what exactly happened in the investigation that the judge ruled "not an illegal search": 1. FBI agents noticed the captcha mechanism on Silk Road was not configured to go through Tor (revealing the server IP address) 2. They asked Icelandic police to get an image of the server. 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). 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.
- Rapzid 12y ago
  They went through the proper channels though, didn't they?
deleted 12y ago
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pyrophane 12y ago
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.
superbaconman 12y ago
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.
john_g 12y ago
Why isn't in the case that if something is clearly being used for illegal purposes the police can't probe it to find out who owns it.
- red525 12y ago
  Does anyone know of a case in which a judge made the FBI comply with their agreements

233 points by ssclafani 12y ago

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? EDIT: Not that it should not be prosecuted if something is found also, but WHY does the obtained evidence have to be dismissed?

cheald 12y ago
> but WHY does the obtained evidence have to be dismissed? Because to permit it effectively allows the end to justify the means. It would effectively permit law enforcement to ignore any and all laws they wanted to in the course of investigations in order to produce a favorable result. Why the hell would you only conduct searches within the bounds of the law if you could get the same result more expediently by just doing it however you want? If the police are willing to break the law, then who is going to enforce the consequences for doing so?
ianferrel 12y ago
Because incentives affect behavior. If you're allowed to use evidence from an illegal search, there's a huge incentive to keep doing illegal searches. If you want to curtail illegal searches, then you make such searches have a worse payoff.
- pbhjpbhj 12y ago
  Why not have it that the court can use evidence that is presented to it. Those committing illegal searches should be prosecuted. Obviously the evidence of the illegal search means a conviction is highly likely. Ignoring evidence that points to the facts of a case seems futile if you wish to achieve justice.
ipsin 12y ago
http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree In short, if illegal techniques can be used to find evidence, and that evidence can be admitted, that's a pretty powerful reason to use illegal techniques. Barring that evidence is a way to prevent that abuse. Aggressively prosecuting the use of illegal techniques is another way, but given that we're not willing to prosecute prosecutors who railroad the innocent or government employees who torture other people, well, I'd say that's a non-starter.
- gear54rus 12y ago
  Thank you and others, I think I see now. Though I think retaliation (fines or maybe some jail time) would be more effective measure to prevent abuse than passive dismissal.
  - cheald 12y ago
    Fines against the police department are just fines against the taxpayers. Fines and jail time for individual officers are not possible because of qualified immunity. http://en.wikipedia.org/wiki/Qualified_immunity http://en.wikipedia.org/wiki/Qualified_immunity
    - pbhjpbhj 12y ago
      That Wikipedia article doesn't say you can't prosecute, it just says that government workers are immune unless they reasonably should have known they were violating the constitution. The FBI know they need warrants, it's got to be FBI 101. When you take the stand in court you are an individual giving testimony though. The rule of law means that if you perjure yourself you should be tried.
  - yxhuvud 12y ago
    In practice, it is hard to get prosecutors to go after other prosecutors and/or police though. /lives in Sweden, where all evidence is admissible, but where the prosecutors should, but don't, go after their own on transgressions.
tgcordell 12y ago
I have a notion that you are not a natural born American citizen. Please, don't hold it against me if this assumption is wrong, but its the first thing that springs to my mind by your confusion proposed. I (and many others) view the government as a service by the people, for the people. It should adhere to the same laws and constraints that the people do in order to be kept in check and not all-powerful. One of these regulations is that citizens have powerful rights of ownership over their personal belongings and no one should be able to rifle through them without permission. Objects/data/articles/ideas can be held private for a multitude of reasons, and due process should be followed in order to gain access to these details. By removing the government's requirement to abide by this, you grant it an immense power to control and have knowledge of your life. That simply isn't necessary for the true function of government. Our original constitution and amendments attempted to protect its citizens from that fear.
- gear54rus 12y ago
  You are correct, I am not an American citizen at all :) I guess what you said is true for any government but does it really matter? They get what they want in the end. Be it Alexander, FBI or someone from my country.
  - tgcordell 12y ago
    I view that form of thinking as a very slippery slope. The government should get what it wants, but what it wants should be defined by the people. Currently, in the HN community, the view of what the government is doing and what the rules are aren't aligned. Thus, we are pushing for rectification. We've got to take a stand somewhere. That's the only way progress is made.
  - walterbell 12y ago
    > "They get what they want in the end" There is no "they". There are individuals who influence each other, each of whom may change their position depending on the position of others. History is replete with the consequences of changes inspired by advisers to advisers of leadership. There is no guarantee that you can influence outcomes, but it is exceedingly likely that if you believe that you cannot influence outcomes, then you will not.
llamataboot 12y ago
Because this is the basic deterrent against illegal searches. By making all evidence from an illegal search be thrown out, it offers a real-world incentive to not violate the 4th Amendment.
venomsnake 12y ago
2 words: General Warrants More than 2 words - If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged. - Cardinal Richelieu You get into situation where you tell a prosecutor - find this guy guilty of something and throw him into jail.
destructaball 12y ago
The idea is that if you allow evidence which is gathered illegally you incentivize the gathering of evidence illegally
deleted 12y ago
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Someone1234 12y ago

> 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. Wait, wait, wait. Hold the phone. 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? 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? 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? 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)? 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.

dietrichepp 12y ago
> 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? That's not what this means. You can't claim fourth amendment protection on someone else's property: I can't claim my rights were violated because the police searched your car. The court is saying that you have to claim it's your car first before you can claim that your rights were violated by the search. (Well, not exactly. The situation is more nuanced.) To put it another way, the court's not saying that this was legal, or that nobody's rights were violated. The court is only denying Ulbricht's specific claim that his rights were violated, and the denial seems to be based on a procedural technicality. Yes, this is bad.
- TrevorJ 12y ago
  This logic seems like it would apply to cell phones which have been subsidized by a contract which continues to exist as well. Aren't they considered to still be legally the phone companies' till you've reached the end of said contract? Bad indeed.

hawkice 12y ago

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. 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.

msandford 12y ago
If the servers aren't his, why is he in court? Doesn't that mean that the real mastermind behind silk road is still out there and that the FBI got the wrong guy? That's the least effective rebuttal I've heard in a while. Obviously the government is going to do whatever it can to prosecute the guy, rules be damned.
- gohrt 12y ago
  In FBI logic, something you use is not protected from search, if someone else owns it. The logic goes, that other party could conceivably one day break your trust and divulge your secrets, therefore you have no expectation of privacy. Same argument they use to read your mail when it is in your mailbox.
  - ewoodrich 12y ago
    Opening first-class mail and standard parcels from the Postal Service requires a warrant[1] by federal law, whether or not it is in a mailbox. Is there some specific example you are referencing? [1] https://postalinspectors.uspis.gov/contactUs/faq.aspx https://postalinspectors.uspis.gov/contactUs/faq.aspx
    - abcabc321321123 12y ago
      That is correct, but the warrant requirement does not follow common sense. Let me try to explain further with an example. A sends a letter to B with information in the letter that implicates C in a crime. The FBI does not have a warrant to open and search the letter. The FBI goes ahead and searches it anyway. Now, the FBI has evidence that C was involved in a crime. C, obviously, would like to challenge the search based on the warrant requirement of the 4th Amendment. It is here where the warrant requirement diverges from common sense. C does not have "standing", which is a legal term of art that basically means the court can hear and decide the case, to challenge the search because the mail was not his. Therefore, without standing, C cannot challenge the search even though the FBI did not have a warrant for the initial search. In contrast, A would have standing because he has a "reasonable expectation of privacy" in his own mail (assuming there was incriminating information against A in the letter).

goodcanadian 12y ago

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.

pdabbadabba 12y ago
The problem with your analysis is that investigators' illegally gaining access to evidence does not in itself necessarily trigger the suppression-of-evidence remedy for Fourth Amendment violations. The suppression remedy is reserved for constitutional violations. So, yes, whether or not the evidence should have been suppressed crucially depends on Ulbricht's relationship with the server and whether he had a reasonable expectation of privacy in its contents.
- goodcanadian 12y ago
  I wasn't claiming that he would definitely win, just that the failure to explore this issue gives a probable avenue of appeal. IANAL, of course, so I could be wrong.
nemo 12y ago
'I find it highly dubious that the FBI has legal authority to access that server without the permission of its "owner" or a warrant.' The server was public, the Feds don't need a warrant to investigate public facing web content any more than they'd need a warrant to look at a storefront. They fuzzed some content to get the thing to leak an IP (according to their account). Given the incompetence of the Silk Road admin, that's honestly not a real stretch. There were SQL injection bugs in the search on the site, and he left PHPMyAdmin running on the server. It was amateur hour. With that IP they contacted the ISP in Iceland who gave up the data since the server was violating it's TOS, and the Iceland authorities got legally involved (with no legal issues in that search). The fuzzing of input to get the IP is iffy, but it's certainly not a cut and dry case where a warrant would be required. The investigators did get warrants for some of the evidence they collected (esp. the evidence that tied , and I'd imagine if there was a a clear legal requirement for a warrant to investigate the web server, since they had overt probable cause it would have been trivial to get one. Besides that the only way Ulricht can claim that the search was illegal is to admit that he owned the server, at which point that admission will certainly put him in prison, so an appeal isn't going to do him any good.

koenigdavidmj 12y ago

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?

llamataboot 12y ago
Kind-of. I think the case hinges on all the evidence of wrong-doing that was found on the server. Obviously if someone else was DPR, they wouldn't have a case against Ulbricht. But this ruling doesn't really effect whether it belonged to him or not, only that he did not /own/ it. It wasn't his server, but a 3rd party's server where he had his data. And there was no ruling on the legality of the search methods (ie; the judge could have ruled that the server had 4th Amendment protections, but that they weren't violated) only that in this case they didn't apply.
anologwintermut 12y ago
The article quotes the judge as saying" "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)" So it's not as Kafkaesc as the title makes it sound---he could have said it's his without incriminating himself---but it's still pretty kafkaesc in that it would have effectively prevented him from testifying.
- themgt 12y ago
  He wanted the ability to claim 4th amendment protections on his server while simultaneously denying that it was his server. For the government to tell him he can't have it both ways in fact seems almost the opposite of Kafkaesque
anigbrowl 12y ago
That's not contradictory; you're conflating past and future. Suppose you're a cop and you find a box with a label on the outside saying 'drug ca$h LOL.' You open it and to your surprise find $1 million dollars, some cocaine, and a passport in the name of K Ingpin. Later you establish K. Ingpin's whereabouts and arrest him. It turns out his fingerprints are all over the box and contents. You had probable cause to investigate what appeared to be a cache of proceeds from the sale of contraband, despite not knowing who it belonged to. On discovering the identity documents in such close proximity to actual contraband, you had probable cause to locate and arrest that person on suspicion of drug dealing. It's actually Ulbricht who wants to have it both ways. Asserting 4th amendment rights effectively amounts to saying 'hey, that's mine and you snoops had no right to access it.' Ulbricht refuses to admit or assert that the servers were his in any meaningful way, even though the prosecution could not put such an admission before the court as evidence. The only way the prosecutors could bring it up is if he took the stand and said 'no way, that's not my server,' in which case they'd say 'but you told the court that it is.' So as a defendant you can say that evidence is the result of an illegal search, or you can disclaim ownership of it, but not both at the same time. I don't know whether the original warrant was deficient or not, and haven't looked it up. but bear in mind that the job of the trial court is not to establish whether it was valid (unless there is glaring evidence to the contrary), but whether it is admissible as evidence to be considered by the finder-of-fact (typically a jury). It's up to the defense counsel to raise those arguments, not for the court to preempt. In this case, the court is pointing out that it told the defense exactly what it needed to do to to make a procedurally valid 4th amendment challenge, and the defense failed to do so. It's not the court's job to step in and assist the defendant if the the defendant's lawyer is no good, although bad lawyering is sometimes the basis for an appeal (on the grounds of ineffective assistance of counsel, in which case the appeal court could order a new trial if it agreed with the claim). In the American legal tradition (and the English one from which it derives), courts are not investigative bodies, they are determinative ones, which can only rule on matters brought up by one of the parties. This is completely different from how courts operate in jurisdictions based on Napoleonic law, in which the functions of prosecutor and judge and virtually combined. Obviously this is a highly simplistic summary, please take it with a grain of salt as I can't compress centuries of different legal traditions into a few sentences.

deleted 12y ago

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kristofferR 12y ago
The Silk Road TOS prohibited the sale of "anything who's purpose is to harm or defraud", neither credit cards or hit men were sold there.

jnem 12y ago

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? 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. 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.

phaer 12y ago
> 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. That's hardly related to TOR, but most probably a misconfiguration of the web-server or application which leaked the IP.
- lbenes 12y ago
  > That's hardly related to TOR, but most probably a misconfiguration of the web-server or application which leaked the IP. According to http://motherboard.vice.com/read/how-did-the-fbi-find-the-silk-road-servers-anyway http://motherboard.vice.com/read/how-did-the-fbi-find-the-si... "He also says that the logs provided in the new evidence don't match up with the pages described in Tarbell's declaration." So it's most likely a case of parallel construction
csandreasen 12y ago
The FBI is claiming that the CAPTCHA on the login page was misconfigured and was leaking the IP. Here's the relevant testimony[1]: In or about early June 2013, another member of CY-2 and I closely examined the traffic data being sent from the Silk Road website when we entered responses to the prompts contained in the Silk Road login interface. This did not involve accessing any administrative area or “back door” of the site. We simply were interacting with the website’s user login interface, which was fully accessible to the public, by typing in miscellaneous entries into the username, password, and CAPTCHA fields contained in the interface. When we did so, the website sent back data to the computer we were using – specifically, the Silk Road homepage, when we used valid login credentials for undercover accounts we had on the site, or an error message, when we used any username, password, or CAPTCHA entry that was invalid. Upon examining the individual packets of data being sent back from the website, we noticed that the headers of some of the packets reflected a certain IP address not associated with any known Tor node as the source of the packets. This IP address (the “Subject IP Address”) was the only non-Tor source IP address reflected in the traffic we examined. The Subject IP Address caught our attention because, if a hidden service is properly configured to work on Tor, the source IP address of traffic sent from the hidden service should appear as the IP address of a Tor node, as opposed to the true IP address of the hidden service, which Tor is designed to conceal. When I typed the Subject IP Address into an ordinary (non-Tor) web browser, a part of the Silk Road login screen (the CAPTCHA prompt) appeared. Based on my training and experience, this indicated that the Subject IP Address was the IP address of the SR Server, and that it was “leaking” from the SR Server because the computer code underlying the login interface was not properly configured at the time to work on Tor. [1] http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-... (pages 3-4)

clamprecht 12y ago

Key quote: > 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. 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.

aeturnum 12y ago
I'm sure it has nothing to do with his lawyer screwing up: >Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn’t be used against him as evidence.

trhway 12y ago

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.

anigbrowl 12y ago
No, logically those are not the only two options. What about the possibility that the guy says it doesn't belong to him, but he's lying? That's essentially the prosecution's position right now, since the defendant has refused to admit the server is his even though that admission would not itself be admissible (as it would have been made to the court, not the prosecution). Legal rulings are like scientific papers - you should not rely on how the press reports them to get a full understanding of what they mean. Read the original document on which the report is based, which addresses the dichotomy you are imagining.
- Dylan16807 12y ago
  Huh? How is that a different option. What he says shouldn't matter at all to what evidence is admissable.
  - anigbrowl 12y ago
    But it does, for reasons laid out on page 12 of the opinion. In short, a 4th amendment attack requires your privacy to have been violated, not just anyone's. You can't say 'that box is not mine, and looking inside it was a violation of my privacy rights'; you must pick one argument or the other. If it really is not your box then you don't have any privacy expectation. The 4th amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects [...' (emphasis added). You don't have a right to security in other people's property, eg if we are both drug dealers and I keep notes about you in my notebook, you can't make a 4th amendment claim about the privacy of my papers even though they incriminate you. Even if those papers are the fruits of an illegal search of my apartment, only I have the right to demand that evidence is suppressed. If I don't (perhaps because I cut a deal for immunity, or perhaps because I was smart and blew town before the police suspected me) then that's just too bad for you.

csandreasen 12y ago

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. 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." [1] http://www.scribd.com/doc/238796613/Silk-Road-Prosecution-4th-Amendment-Rebuttall http://www.scribd.com/doc/238796613/Silk-Road-Prosecution-4t... (page 12) [2] http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-... (page 3)

dlss 12y ago
The hacking is what let them know which server to have the Icelandic authorities seize.
- csandreasen 12y ago
  The "hacking" was speculation on the defense's part when they filed their motion in August. If you read the motion[1], because the defense didn't yet know how the FBI located the server, Ulbricht's lawyer wrote a long statement speculating that the NSA/DEA was providing the information to the FBI through parallel construction. The defense did not show any proof of their accusation. A month later, the FBI gave sworn testimony[2] indicating that they found the server because Ulbricht had failed to configure it properly and it was leaking out its actual IP outside of Tor channels. There hasn't been any proof shown that the FBI hacked his server. A number of people have claimed in the past that they came across the actual IP for Silk Road's server as a result of misconfiguration[3][4], so frankly it doesn't surprise me at all that the FBI also found a leak. [1] https://www.scribd.com/doc/235692879/Silk-Road-4th-Amendment-Memo https://www.scribd.com/doc/235692879/Silk-Road-4th-Amendment... (starting on page 40 of the PDF - the page number in the document itself is 28, entitled "The Searches and Seizures In This Case Failed to Satisfy the Fourth Amendment") [2] same link as my grandparent comment (https://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-vulnerability https://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk...) [3] http://www.reddit.com/r/SilkRoad/comments/1b1lvy/warning_the_silk_road_revealed_its_public_ip_last/ http://www.reddit.com/r/SilkRoad/comments/1b1lvy/warning_the... [4] http://www.reddit.com/r/SilkRoad/comments/1dmznd/should_we_be_worried_showing_on_login_page/ http://www.reddit.com/r/SilkRoad/comments/1dmznd/should_we_b...

maceo 12y ago

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. http://en.wikipedia.org/wiki/Hedges_v._Obama http://en.wikipedia.org/wiki/Hedges_v._Obama

retrogradeorbit 12y ago
That's the case that Hedges said if they lost it meant the US was clearly a tyranny. And then they lost. Seems Judge Forrest got the memo.

downandout 12y ago

The judge states in the ruling that she relied in part on this Supreme Court decision: "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." 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.

patcon 12y ago

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. So basically, any hacked system with incriminating data is almost an automatic hit against a defendant. This seems like bad news for due process.

pyrophane 12y ago
No, they address that in the article. There was a way under the law that the defense could have "claimed" the server for the purpose of their motion to suppress that couldn't then be used against them during trial.

rtpg 12y ago

As a refresher to what exactly happened in the investigation that the judge ruled "not an illegal search": 1. FBI agents noticed the captcha mechanism on Silk Road was not configured to go through Tor (revealing the server IP address) 2. They asked Icelandic police to get an image of the server. 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). 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.

Rapzid 12y ago
They went through the proper channels though, didn't they?

deleted 12y ago

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pyrophane 12y ago

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.

superbaconman 12y ago

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.

john_g 12y ago

Why isn't in the case that if something is clearly being used for illegal purposes the police can't probe it to find out who owns it.

red525 12y ago
Does anyone know of a case in which a judge made the FBI comply with their agreements