Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid A US District Court has shot down a motion to toss out the government's evidence against alleged Silk Road mastermind Ross Ulbricht, ruling that the FBI's investigation did not violate Ulbricht's Fourth Amendment rights. In a 38-page ruling, District Judge Katherine Forrest wrote that the defense could not exclude evidence …
Quote: 'The feds hacked into a computer without a warrant and "found" evidence.'
Correct. Would have been illegal if the computer was a USA one on USA territory. Similarly, any evidence obtained would have been tainted and thrown out of court.
This however is not USA territory, so the judge reiterated the current statute book which declares any foreign or international law null and void as a part of the standard USA court interpretation of the 14th Amendment to the US Constitution. This effectively means that any USA entity is entitled to any means (waterboarding not withstanding) of obtaining evidence outside USA for use inside USA.
But it could be equally:
"Your Honor1 the cops broke into my friend's flat to plant that smoking gun with my fingerprints, lifted from the water glass I used when they interviewed me."
The computers were hacked by the Police and who else; without chain of custody, what is the evidence worth?
1: Amercan spelling because UK Police aren't arrogant enough to break other countries laws to plantsearch for evidence... well, OK, here's the missing 'u'.
Except the smoking gun with his prints on it was stolen by the FBI from a house in another country.
The evidence should be thrown out and the case should be dismissed. There need to be consequences for the government performing an illegal search.
They could have tried to make it legal. They could have claimed it was swept up by a national security investigation, and gotten a FISA warrant, even a warrant after the fact! That would have been sneaky, and evil, but at least a better story.
As a US citizen, I see this as my government performing larceny. They either need to throw out the search, or send the FBI supervisor who authorized this to stand trial in Iceland.
"They either need to throw out the search, or send the FBI supervisor who authorized this to stand trial in Iceland."
I'm sorry, while I agree with you, I think your scope is far too narrow: they need to send the people who did this, those who authorised it, those who supervise the authorising individuals and those who supervise them to Iceland to wait, for as long as it takes, for the Icelandic authorities to decide whether or not to prosecute under that nation's laws.
But even if Iceland decides not to prosecute, law enforcement officials have clearly and obviously broken the law of a sovereign country and should face some personal consequences -at the very very least, the loss of their careers and pensions, plus whatever the minimum sentence is under US law for the illegal invasion of the territory of an ally.
It is a bit of a Catch-22 isn't it? Except the smoking gun wasn't in his possession, it was in someone else's possession.
IANAL, but I think if he had been successful in invoking the 4th Amendment, he sure as hell couldn't invoke the 5th to defend himself against self-incrimination... which I suspect, the invoking the 4th would do.
> you can't really assert fourth ammendment protection over some property
> *and* claim the property isn't yours
Why? "It's not my server, and even if it was you didn't have a search warrant". 4th amendment protections apply no matter whose property it was.
The wrinkle in all of this is that the server was in Iceland, so no search warrant was applied for. If it was in the US, if there wasn't evidence the server had a connection to Ross Ulbricht a search warrant wouldn't have been issued (or would be thrown out later).
Shouldnt the Feds be working on the principle that SOMEONE- the owner- has a personal privacy interest in that server?
Or that warrantless hacking of a computer system is plain illegal? That's why we have warrants for things- it means they're allowed to do this thing that would otherwise be illegal.
You have it exactly right. What the judge has done here is state that it's perfectly all right for government agents to break the law, and potentially violate Constitutional Rights, as long as the evidence gathered isn't used against the person they directly violated.
This is a Catch-22 that should work in both directions. The defendant can't claim his rights were violated with admitting the goods are his, but the government can't use the evidence against him without admitting that they violated his rights.
That's the point - if the police does a search that violates someone's rights, then the results of the search may not be used against the person whose rights were violated. On the other hand, if you shoot someone and hide the gun in my garden, then I can clearly allow the police to search my garden without a warrant and the result can be used against you. Or I may not allow the police to search my garden, in which case they can still search it and use the evidence against _you_, but they can't use the interesting plants in my garden as evidence against me. Any evidence that can be found without violating _your_ rights can be found and used against you.
(There was a case on TV where the police searched someone's hotel room and found a tape where he discussed payment for killing someone else's wife. The search was illegal and thrown out as evidence against the paid killer - but it was legal evidence against the husband of the murdered wife).
"just demanding the extradition of the guys that hacked" won't be enough; they need to charge those who harbour the persons in question, AND all those who provide their legal cover - including any judge who implies that law enforcement personnel can break any law they like anywhere in the world, as long as it isn't US,
If US law does not apply to US law enforcement officers working overseas, just make that clear - and let other countries decide whether their own laws and/or protections should apply to US citizens (natural or corporate).
The FBI can hack into whatever computer in order to prove it is yours. Either you deny the computer is yours, in which case you are not protected by the 4th Amendment, and their evidence stands, or you admit yourself it is your computer, in which case their evidence is dismissed, but you have incriminated yourself; something you should have a right not to do according to the 5th Amendment…
While I think that the FBI were wrong - period - in getting the alleged evidence that they wanted, by hacking into a foreign computer, which is arguably an international criminal act of computer misuse - and which they admitted to in open court no less, I can also see why the Judge ruled in the way he did - but not for the reasons suggested above: Think of the massive sueball that was lurking in the shadows of this, had he ruled in the plaintiffs favour. The US Government could potentially been sued into financial meltdown (well, more than it's already in the hole, anyhow).
Not, therefore, a massive surprise, this ruling, then.
"Not, therefore, a massive surprise, this ruling, then."
Oh, not a surprise at all. Judge lacks backbone to say common sense should come before the letter of the law. No, no surprises at all.
What would be a surprise is if the court said "the US courts do not have any jurisdiction over any property in a different sovereign state, US law enforcement should have applied for warrants in that state, or any such evidence is either the seed or a very low hanging part of a poisonous tree and any resulting evidence is thrown out". Then again, that would be expectnig a US judge to say US law doesnt apply wherever in the world that judge feels like applying it. Precedent suggests the US courts do not think that way.
"However it does mean that, hypothetically, a UK NCA bod could ask an FBI bod to hack into a UK system; if they find something the UK bod can then apply for a UK warrant to get the data officially."
i bet you $1 that if that is still hypothetical, it wont be for long
---
"However it does mean that, hypothetically, a UK NCA bod could ask an FBI bod to hack into a UK system; if they find something the UK bod can then apply for a UK warrant to get the data officially."
i bet you $1 that if that is still hypothetical, it wont be for long
---
Isn't that what has been going on for decades anyway with the 5 eyes bods. Menwith Hill in Yorkshire is, I am told, sovereign US territory and is supposedly plugged into some big fat UK pipes. If the US operators find something useful, allegedly the UK spooks find out about it. As I am lead to believe there is a plot of land in Maryland that is forever England as well.
"The server was hacked into, therefore the evidence should be disallowed!" This line is quite funny, and actually just what the FBI know will not be presented in court. Why? Well, it's simple - to show 'hacking' you have to show 'unauthorized access', and since the server in question is full of evidence of illegal activity, who do you think is going to put their hand up and say "I own it and did not authorize the FBI's access", because the very next thing that happens is the FBI then go get a warrant with the knowledge all the evidence is there and the 'owner' has just admitted their responsibility for the criminal activities the evidence displays.
In short, Ulbricht and co cannot call it 'hacking' without incriminating themselves.
I think the judge is operating on flawed logic here. SOMEONE'S 4th Amendment rights were violated if the operator was an American. Whether it was Ulbricht's or not is irrelevant: the FBI still acted illegally and the evidence should be inadmissible.
Then again the 4th is all but dead, right along with the sixth.
".....SOMEONE'S 4th Amendment rights were violated if the operator was an American....." Oh, that's terrible! You mean some worthless piece of criminal crap - sorry, 'innocent bystander' - had their rights impinged? OhEmGeez, we must get a ruling on such a serious accusation, it's the righteous thing to do! Now, just get the person concerned to own up to their ownership of the server allegedly full of evidence of criminal activities ranging from attempted murder through illegal drug dealing to child porn and we can get right on to upholding his or her rights. Right after we charge them with complicity in said crimes. What, no-one actually feels their rights were impinged enough to want to complain? What a surprise!
"Innocent unless proven guilty...." I'm sure the FBI are laughing their asses off at just how willing they would be to help Ulbricht prove his 'innocence', just as soon as he admits the server in question is his. The fact is so desperate to deny admitting his ownership just rules how unlikely his innocence is. But you go on trying to baaaaaahlieve otherwise if it helps you cope with the 'unfairness' of it all.
".....I know you and the law enforcement agencies want to see that basic maxim of the Rule of Law become a thing of the past....." It is very clear the only thing you know is hatred of 'The Man', the rest is just your paranoid fantasies.
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