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> 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

> 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.
- rosser 12y ago
  No, subsidized phones aren't the carrier's property while you're in contract. You're liable for an early termination fee if you break the contract (barring the case of "adverse changes" or the like), but you own the phone — or at least the atoms in it. You still have a reduced "expectation of privacy" in your mobile communications, however, in that you're using your carrier as an intermediary to those communications. Consider pen registers, for example.
  - TrevorJ 12y ago
    I reviewed the legal argument that the CTIA made in favor of disallowing end users from unlocking phones and it turns out I was mistaken and you are correct.
phkahler 12y ago
Shouldn't evidence be inadmissible based on how it was obtained? An illegal search is an illegal search regardless of what was searched or who owns it. I'm not a fan of the defendant here, but I am a fan of holding the authorities to the rules. You know it's their job to uphold the law.
- forgottenpass 12y ago
  That's just the way it works. I agree with you, but the courts don't.
- dietrichepp 12y ago
  > I'm not a fan of the defendant here, but I am a fan of holding the authorities to the rules. You know it's their job to uphold the law. Yes, evidence is inadmissible based on how it is obtained. However, there are rules and procedures for how you get evidence excluded from a trial. This is why you pay good money for good lawyers: they know the rules for excluding evidence. I recommend watching the 1992 moive "My Cousin Vinny".
  - munchbunny 12y ago
    The unfortunate part of all of this is that we're now in a system where you win by paying more money to cover more technicalities than the other guy. Sure, this follows the rules, but it seems perverse to lose on a technicality that is easy to resolve with a "hey, prove you own the server. you did? ok."
    - anigbrowl 12y ago
      But the thing is the judge gave them exactly that option and Ulbricht's lawyer inexplicably declined to take it - see page 22 onwards. So either a) Ulbright can't prove he owns the server (in which case he can't very well claim privacy rights in something that's not his property to start with), or b) he is not willing to, even though doing so might keep most of the evidence out of trial. Maybe that's because of some super-clever legal tactic they plan to unveil at appeal (although this seems very unlikely, as this is such a basic procedural issue) or maybe it's for some extrajudicial reason, like because it would reveal the identity of some partner in crime who would then seek terrible revenge. Or any other number of other possibilities.
jamesaguilar 12y ago
Very interesting. So, at a minimum, you must disclose that a thing is your property to prevent illegal searches of that thing from being admitted in a case against you. That means that if you can be convicted under either of - thing.BelongsTo(you) - thing.Contents fourth amendment protections will not save you. Am I reading this right?
- dietrichepp 12y ago
  > Am I reading this right? Fortunately, no. The article explains it better than I could: > That argument may seem like a Catch-22. If Ulbricht were to claim ownership of that server he would seem to incriminate himself. But Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn’t be used against him as evidence. “Defendant could have established such a personal privacy interest by submitting a sworn statement that could not be offered against him at trial as evidence of his guilt (though it could be used to impeach him should he take the witness stand),” she writes. “Yet he has chosen not to do so.”
  - zo1 12y ago
    That sounds completely broken. So he has to "pre-trial" admit to owning the "evidence" or "tool of committing the crime", or something. Thereby admitting "guilt" without it being admissible in court later on. So then, everyone knows he's guilty, because he admitted it, but they can't "prove it" because of a technicality of using that evidence. The reason that sounds broken to me is that he has to first admit guilt in order to defend some "noble" right to privacy that'll allow him to be acquitted. If he does that, his entire life is ruined because he will forever be tainted in the media and law-enforcement as "guilty, but got away due to a technicality". They will never stop hounding him, and will actively put him under their investigation spot-light for his entire life. This applies whether he's actually guilty, or not.
- rtkwe 12y ago
  There's one bit that I'm not sure how to read because I'm not a lawyer: > “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),” It sounds like he could provide proof that he owned the server having the contents of the server thrown out. Then provided he didn't take the stand in his own defense the affidavit couldn't be used. Not entirely certain though.
X-Istence 12y ago
However if the government then claims that this server is owned by you, doesn't that then imply that your privacy rights were violated since they illegally hacked into your computer? The government can't have it both ways. Either the server is owned by Ulbrecht and they violated his rights, or the server is now owned by Ulbrecht, and thus they can't prove he is the DPR.
- dietrichepp 12y ago
  > The government can't have it both ways. Either the server is owned by Ulbrecht and they violated his rights, or the server is now owned by Ulbrecht, and thus they can't prove he is the DPR. It's not that simple. The courts follow procedures for these things: the courts respond to claims made by various parties, and if there is no claim that the evidence is dirty, or if the claim that the evidence is dirty is not proved for whatever reason (even silly technical reasons), then the evidence is admitted. Don't forget that this is only one court. Higher courts could find the judge's ruling incorrect.
  - Estragon 12y ago
    I started to read Alderman v. US after Forrest said that 4th Amendment rights cannot be vicariously asserted. I'm a little unclear on how this works. Could an investigator warrentlessly burgle the residences of two conspirators A & B, and use evidence found in B's place against A and evidence found in A's place against B, all without violating the fourth amendment? How about email accounts? If so, why don't investigations against known conspirators proceed this way all the time?
  - bd_at_rivenhill 12y ago
    Seems like it should be possible for the defense to argue that the prosecution must stipulate that the server was his property, in which case his rights were violated, or that the prosecution must stipulate that it was not his property and that they have no case against him. What is wrong with this argument in a legal sense?
- downandout 12y ago
debian3 12y ago
"That's not what this means. You can't claim fourth amendment protection on someone else's property" Ok, so if you rent a car for 3yrs, then they can search it without your consent because technically you don't own it?
- anigbrowl 12y ago
  No. While the car is legally in your possession and you leave it closed, you have an expectation of privacy even though you don't own the vehicle title outright.
ASneakyFox 12y ago
Its still illegally obtained evidence even if the server belongs to him or not. Illegal evidence is still illegal evidence.
higherpurpose 12y ago
The 4th amendment isn't exactly a "right". It's a limitation imposed on the government. The whole Constitution is. The government is not supposed to conduct "illegal searches and seizures". It doesn't say on the victim's property or whatever.
Alupis 12y ago
Seems the FBI is claiming the servers were his, and he was operating them, so they are prosecuting him. But somehow they aren't his property, and therefore not protected by the 4th? That seems bassackwards.

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.

rosser 12y ago
No, subsidized phones aren't the carrier's property while you're in contract. You're liable for an early termination fee if you break the contract (barring the case of "adverse changes" or the like), but you own the phone — or at least the atoms in it. You still have a reduced "expectation of privacy" in your mobile communications, however, in that you're using your carrier as an intermediary to those communications. Consider pen registers, for example.
- TrevorJ 12y ago
  I reviewed the legal argument that the CTIA made in favor of disallowing end users from unlocking phones and it turns out I was mistaken and you are correct.

phkahler 12y ago

Shouldn't evidence be inadmissible based on how it was obtained? An illegal search is an illegal search regardless of what was searched or who owns it. I'm not a fan of the defendant here, but I am a fan of holding the authorities to the rules. You know it's their job to uphold the law.

forgottenpass 12y ago
That's just the way it works. I agree with you, but the courts don't.
dietrichepp 12y ago
> I'm not a fan of the defendant here, but I am a fan of holding the authorities to the rules. You know it's their job to uphold the law. Yes, evidence is inadmissible based on how it is obtained. However, there are rules and procedures for how you get evidence excluded from a trial. This is why you pay good money for good lawyers: they know the rules for excluding evidence. I recommend watching the 1992 moive "My Cousin Vinny".
- munchbunny 12y ago
  The unfortunate part of all of this is that we're now in a system where you win by paying more money to cover more technicalities than the other guy. Sure, this follows the rules, but it seems perverse to lose on a technicality that is easy to resolve with a "hey, prove you own the server. you did? ok."
  - anigbrowl 12y ago
    But the thing is the judge gave them exactly that option and Ulbricht's lawyer inexplicably declined to take it - see page 22 onwards. So either a) Ulbright can't prove he owns the server (in which case he can't very well claim privacy rights in something that's not his property to start with), or b) he is not willing to, even though doing so might keep most of the evidence out of trial. Maybe that's because of some super-clever legal tactic they plan to unveil at appeal (although this seems very unlikely, as this is such a basic procedural issue) or maybe it's for some extrajudicial reason, like because it would reveal the identity of some partner in crime who would then seek terrible revenge. Or any other number of other possibilities.

jamesaguilar 12y ago

Very interesting. So, at a minimum, you must disclose that a thing is your property to prevent illegal searches of that thing from being admitted in a case against you. That means that if you can be convicted under either of - thing.BelongsTo(you) - thing.Contents fourth amendment protections will not save you. Am I reading this right?

dietrichepp 12y ago
> Am I reading this right? Fortunately, no. The article explains it better than I could: > That argument may seem like a Catch-22. If Ulbricht were to claim ownership of that server he would seem to incriminate himself. But Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn’t be used against him as evidence. “Defendant could have established such a personal privacy interest by submitting a sworn statement that could not be offered against him at trial as evidence of his guilt (though it could be used to impeach him should he take the witness stand),” she writes. “Yet he has chosen not to do so.”
- zo1 12y ago
  That sounds completely broken. So he has to "pre-trial" admit to owning the "evidence" or "tool of committing the crime", or something. Thereby admitting "guilt" without it being admissible in court later on. So then, everyone knows he's guilty, because he admitted it, but they can't "prove it" because of a technicality of using that evidence. The reason that sounds broken to me is that he has to first admit guilt in order to defend some "noble" right to privacy that'll allow him to be acquitted. If he does that, his entire life is ruined because he will forever be tainted in the media and law-enforcement as "guilty, but got away due to a technicality". They will never stop hounding him, and will actively put him under their investigation spot-light for his entire life. This applies whether he's actually guilty, or not.
rtkwe 12y ago
There's one bit that I'm not sure how to read because I'm not a lawyer: > “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),” It sounds like he could provide proof that he owned the server having the contents of the server thrown out. Then provided he didn't take the stand in his own defense the affidavit couldn't be used. Not entirely certain though.

X-Istence 12y ago

However if the government then claims that this server is owned by you, doesn't that then imply that your privacy rights were violated since they illegally hacked into your computer? The government can't have it both ways. Either the server is owned by Ulbrecht and they violated his rights, or the server is now owned by Ulbrecht, and thus they can't prove he is the DPR.

dietrichepp 12y ago
> The government can't have it both ways. Either the server is owned by Ulbrecht and they violated his rights, or the server is now owned by Ulbrecht, and thus they can't prove he is the DPR. It's not that simple. The courts follow procedures for these things: the courts respond to claims made by various parties, and if there is no claim that the evidence is dirty, or if the claim that the evidence is dirty is not proved for whatever reason (even silly technical reasons), then the evidence is admitted. Don't forget that this is only one court. Higher courts could find the judge's ruling incorrect.
- Estragon 12y ago
  I started to read Alderman v. US after Forrest said that 4th Amendment rights cannot be vicariously asserted. I'm a little unclear on how this works. Could an investigator warrentlessly burgle the residences of two conspirators A & B, and use evidence found in B's place against A and evidence found in A's place against B, all without violating the fourth amendment? How about email accounts? If so, why don't investigations against known conspirators proceed this way all the time?
- bd_at_rivenhill 12y ago
  Seems like it should be possible for the defense to argue that the prosecution must stipulate that the server was his property, in which case his rights were violated, or that the prosecution must stipulate that it was not his property and that they have no case against him. What is wrong with this argument in a legal sense?
downandout 12y ago

debian3 12y ago

"That's not what this means. You can't claim fourth amendment protection on someone else's property" Ok, so if you rent a car for 3yrs, then they can search it without your consent because technically you don't own it?

anigbrowl 12y ago
No. While the car is legally in your possession and you leave it closed, you have an expectation of privacy even though you don't own the vehicle title outright.

ASneakyFox 12y ago

Its still illegally obtained evidence even if the server belongs to him or not. Illegal evidence is still illegal evidence.

higherpurpose 12y ago

The 4th amendment isn't exactly a "right". It's a limitation imposed on the government. The whole Constitution is. The government is not supposed to conduct "illegal searches and seizures". It doesn't say on the victim's property or whatever.

Alupis 12y ago

Seems the FBI is claiming the servers were his, and he was operating them, so they are prosecuting him. But somehow they aren't his property, and therefore not protected by the 4th? That seems bassackwards.