The Silk Road Trial Set a Dangerous Legal Precedent

By Kate Knibbs on at

The Silk Road trial is over. A jury found Ross Ulbricht guilty on all seven charges, including money laundering, drug trafficking, and the "kingpin" charge. In the eyes of the Federal Court of Manhattan, Ulbricht's identity has been definitively linked to the pseudonymous digital drug bazaar runner Dread Pirate Roberts. He faces life in prison.

That's not just bad news for Ulbricht; this trial has set a dangerous legal precedent. It's incredible that the FBI never had to explain how it located and infiltrated the Silk Road's hidden servers, and the fact that the evidence law enforcement provided from those servers was admitted despite the lack of clarity about their source is troubling.

Privacy advocates suspect the government's search and seizure was not entirely above board, arguing the agency hacked into the anonymous site without a warrant. As Gizmodo's Adam Clark Estes wrote shortly before the trial:

Both sides are clashing over one specific detail regarding how the FBI located the hidden Silk Road server. Put simply, they hacked the site's login page with a (potentially illegal) brute force attack. Or the NSA did it for them—that part's a little bit unclear. Neither of the government agencies had a warrant, of course.

The defence says that this sort of intrusion represents a clear violation of the Fourth Amendment. Just imagine if the FBI had broken into and searched Ulbricht's house instead of his server.

That's a reasonable concern, though it didn't do the defence any good in court. Judge Katherine Forrest rejected the argument on a technicality during the trial, and so the defence was not allowed to explore this line of questioning. Without a clear answer, there's no proof that the US government upheld the Fourth Amendment and obtained the information legally.

The defence instead tried to run with the fact that the FBI had initially suspected someone else of running the Silk Road, Mt. Gox CEO Mark Karpeles. But the prosecution shut down this line of questioning, and the defence was pretty much screwed. The prosecution had obtained a damning pile of evidence, from Ulbricht's diaries to a report tracing £8.8 million Bitcoin from the Silk Road into Ulbricht's personal digital wallet. While defence lawyer Robert Dratel kept arguing about the slipperiness of digital identity, it wasn't enough to sway the jury.

The fact that law enforcement was allowed to present damning digital evidence without explaining how it got it is bad news for privacy. Before the verdict came in, I talked to Ryan E. Long, a lawyer affiliated with Stanford's Center on Internet and Society, about the potential impact of this case on future internet-related trials. He zeroed in on the importance of authenticating the evidence that the government showed, and making sure it was obtained without violating the Constitution.

"How did they get this information, and did they breach the law by getting it? I think that will set the precedent with future electronic cases about how the government got the information and whether they did it legally," he said.

The issue is, he continued, "whether the government obtained the evidence that they wish to use to prove this narrative, [Ulbricht's guilt] such as the identity of the server, in a lawful way consistent with the Fourth Amendment, among other things."

That doesn't mean Ulbricht did not do the things he's now convicted of doing. It doesn't mean the Silk Road kingpin doesn't belong behind bars. But it does mean, unambiguously, that the feds were allowed to present evidence that could've easily been obtained unlawfully. In the legal world, there's a metaphor called "fruit of the poisonous tree." It's used to describe tainted evidence, evidence that comes from breaking the law.

It's not supposed to be admissible in court.