The court rejected the defense’s claim that the FBI had illegally hacked Silk Road

Original author: Andy Greenberg
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Ross Ulbricht’s lawyers have spent the past two months trying to divert attention from their client, accused of creating Silk Road (a drug trafficking site with a total transaction volume of about a billion dollars), to the possible illegality of the FBI investigation itself. Last week, the judge in charge of this case made it clear that Ulbricht, and not the Bureau, would appear before the court.

In a 38-page ruling, Judge Catherine Forest rejected the defense's motion to exclude evidence, based on the argument that law enforcement authorities violated Ulbricht's privacy right protected by the Fourth Amendmentfrom an unreasonable search. The defendant’s lawyers claimed that the FBI illegally, without a court order, hacked the Silk Road server in Iceland to determine his whereabouts.

The decision to reject the above argument boils down to 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 could not claim that his rights were violated during the search.
It looks like a hopeless situation. After all, if Ulbricht had declared that the server belonged to him, he would have exposed himself. But Judge Forest nevertheless claims that: "... the accused, nevertheless, could during the pre-trial hearing prove the presence of personal information on the server by making a sworn statement that could not be used against him during the trial as evidence of his guilt. But he decided not to do it. "
Ulbricht's lawyers have not yet given any comments on this matter.


Judge Forest's decision put an end to the lengthy pre-trial debate surrounding the mysterious events that led the FBI to an Icelandic server allegedly owned by Ross Ulbricht. While the defense petitioned for the evidence to be invalidated due to the illegality of the investigations themselves (if satisfied, it would have made it practically impossible to convict Ulbricht of the main charges of drug trafficking and money laundering), the prosecution defended a different position. According to the Bureau, the federal agent simply entered “random characters” into the authorization form on the Silk Road website until an error in the configuration of the Tor anonymous browser resulted in a leak of the website’s real IP address.
The security community and the expert involved in Ulbricht's defense quickly found serious inconsistencies in this story. They claim that in reality, the FBI claimed sounds like a thinly veiled description of an invasion using conventional hacker methods. The defense called for a cross-examination hearing with FBI agents.
However, the final answer of the representatives of Themis to these defense arguments practically did not concern the allegations of “hacking”. Instead, Justice Department lawyers told the court that it doesn’t matter if the Silk Road site was hacked.
Even if FBI agents got remote access to the server as a result of hacking and without a warrant for it, it is still quite legalin accordance with the position of the government. The Justice Department separately indicates that the server was located outside the United States as well as the company-owner is also not American.
Professor Jennifer Granick of Stanford University believes that these arguments contain serious flaws.
Firstly, the right of the FBI to hack into any foreign website without a warrant was never previously established during a trial ( translator's note: American law is a case law, therefore the absence of a court case is so important) Secondly, since Silk Road only worked through the anonymous Tor browser, the FBI couldn’t even know who hosted this site or where it was located (it could well be an American company and an American data center) before they took hacking attempt.
“Investigations conducted abroad must still be substantiated,” Professor Granik told WIRED. “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 secretive investigation of the FBI, 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 are sufficient for the government to explain why their investigation does not cross this line”
Now such hearings will never take place. Instead, next time we’ll hear about the progress of the FBI vs. Silk Road case most likely next month, with the trial of Ross Ulbricht scheduled.

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