Feds Hacked Silk Road Without a Warrant? Perfectly Legal, Prosecutors Argue

With only a month until the scheduled trial of Ross Ulbricht, the alleged creator of the Silk Road drug site, Ulbrichts defense lawyers have zeroed in on the argument that the U.S. government illegally hacked the billion-dollar black market site to expose the location of its hidden server. The prosecutions latest rebuttal to that argument takes an unexpected tack: they claim that even if the FBI did hack the Silk Road without a warrantand prosecutors are careful not to admit they didthat intrusion would be a perfectly law-abiding act of criminal investigation.

On Monday evening the prosecutors submitted the latest in a series of combative court filings from the two sides of the Silk Road case that have clashed over Ulbrichts Fourth Amendment right to privacy. The governments new argument responds to an affidavit from an expert witness, tech lawyer Joshua Horowitz, brought in by Ulbrichts defense to poke holes in the FBIs story of how it located the Silk Road server. In a letter filed last week, Horowitz called out inconsistencies in the FBIs account of stumbling across the Silk Roads IP address while innocently entering miscellaneous data into its login page. He testified that the FBIs actions instead sounded more like common hacker intrusion techniques. Ulbrichts defense has called for an evidentiary hearing to cross examine the FBI about the operation.

In the governments rebuttal, however, Ulbrichts prosecutors dont directly contest Horowitz description of the FBIs investigation, though they do criticize his testimony in passing as factually and analytically flawed in a number of respects. Instead, they obliquely argue that the foreign location of the sites server and its reputation as a criminal haven mean that Ulbrichts Fourth Amendment protections against unreasonable searches dont apply, even if the FBI did use hacking techniques to penetrate the Silk Road, and did so without a warrant.

Even if the FBI had somehow hacked into the [Silk Road] Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment, the prosecutors new memo reads. Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to hack into it in order to search it, as any such hack would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.

The Silk Road server in question, after all, was located not in the United States but in a data center near Reykjavik, Iceland. And though Ulbricht is an American citizen, the prosecutors argue that the servers location abroad made it fair game for remote intrusion. Because the SR Server was located outside the United States, the Fourth Amendment would not have required a warrant to search the server, whether for its IP address or otherwise, the prosecutions filing reads.

In a footnote, the memo adds another strike against Ulbrichts Fourth Amendment protections: The Silk Road was not only hosted in a foreign data center, but also rented from a third-party web hosting service. And because Ulbricht allegedly violated the companys terms of service by using its computers to deal in narcotics and other contraband, that company was exempted from any obligation to protect his privacy.

Finally, prosecutors argue that for the 30-year-old Texan to claim privacy protections for Silk Roads server, he would have to declare that it belonged to hima tricky Catch-22. Ulbricht hasnt claimed personal possession of that computers data, as doing so would almost certainly incriminate him. But because he hasnt he cant claim that his privacy was violated when it was searched, according to the prosecutors reasoning. Because Ulbricht has not submitted any affidavit alleging that he had any possessory interest in the SR Serverlet alone one that would give him a reasonable expectation of privacyhis motion should be denied, reads the prosecutors filing.

Early Tuesday, Judge Katherine Forrest ordered Ulbrichts defense to decide within the day whether it will argue that Ulbricht did have an expectation of privacy for the Silk Road server, as well as all his other seized computers and online accounts. Shes given him until the end of the day Wednesday to make that argument Ulbrichts defense didnt immediately respond to a request for comment.

The pre-trial motion over which Ulbrichts defense lawyers and the prosecution have been sparring for the last two months doesnt directly seek to have the central narcotics conspiracy and money laundering charges against Ulbricht dismissed. Instead, his lawyers have sought to prove that the evidence gathered by law enforcement is tainted. If the initial pinpointing of Silk Roads server was illegal, they argue, practically all the evidence from the resulting investigation could be rendered inadmissible.

Early last month, the government responded to that motion with an affidavit from former FBI agent Christopher Tarbell describing how the Silk Road server was first found. As he described it, a misconfiguration of the anonymity software Tor allowed the sites login page to leak its IP address.

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Feds Hacked Silk Road Without a Warrant? Perfectly Legal, Prosecutors Argue