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, Ulbricht's 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 prosecution's latest rebuttal to that argument takes an unexpected tack: they claim that even if the FBI did hack the Silk Road without a warrant--and prosecutors are careful not to admit they did--that 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 Ulbricht's Fourth Amendment right to privacy. The government's new argument responds to an affidavit from an expert witness, tech lawyer Joshua Horowitz, brought in by Ulbricht's defense to poke holes in the FBI's story of how it located the Silk Road server. In a letter filed last week, Horowitz called out inconsistencies in the FBI's account of stumbling across the Silk Road's IP address while innocently entering "miscellaneous data" into its login page. He testified that the FBI's actions instead sounded more like common hacker intrusion techniques. Ulbricht's defense has called for an evidentiary hearing to cross examine the FBI about the operation.

In the government's rebuttal, however, Ulbricht's prosecutors don't directly contest Horowitz' description of the FBI's 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 site's server and its reputation as a criminal haven mean that Ulbricht's Fourth Amendment protections against unreasonable searches don't 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."

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http://www.wired.com/2014/10/feds-silk-road-hack-legal/


Comments


[8 Points] None:

[deleted]


[5 Points] cflatminor:

This is an interesting response from the prosecutor. Apparently they're not even going to pretend to respond to the holes poked in their we-just-probed-the-captcha-page story, and instead are arguing that probable cause was there, ergo hacking was necessary. The scale and nature of SR would probably incline the judge to side with the prosecution. Virtually every person logging in to SR would be there with the intent of committing a crime, so any 4a violation whining flies out the window at that point.

But, curiously, back in April a judge in Texas denied the FBI's request to hack into someone's personal computer in order to gather evidence for a case they were building. In his opinion, he wrote the following:

The Government's application contains little or no explanation of how the Target Computer will be found. Presumably, the Government would contact the Target Computer via the counterfeit email address, on the assumption that only the actual culprits would have access to that email account. Even if this assumption proved correct, it would not necessarily mean that the government has made contact with the end-point Target Computer at which the culprits are sitting. It is not unusual for those engaged in illegal computer activity to "spoof" Internet Protocol addresses as a way of disguising their actual on-line presence; in such a case the Government's search might be routed through one or more "innocent" computers on its way to the Target Computer. The Government's application offers nothing but indirect and conclusory assurance that its search technique will avoid infecting innocent computers or devices.

Makes you wonder, doesn't it?


[3 Points] XXX-XXX-XXX:

is there any point in staying up to date on this shit show of a court case? its in the USA, hes fucked. USA doesnt give a fuck about anyones rights, if they want you, you better prepare your tight asshole.


[2 Points] og_by_monsanto:

Just replace the word hack with reverse engineered and it would be the same thing. Hack is a poor choice of words I believe.


[2 Points] Marag:

It's pretty obvious then that the American State wants to prosecute Ross whether it was legal or not. All we can do is make sure we continue to grow this community which he created. I'm sure he will be grateful for that.


[1 Points] minorwhite:

How about contempt of court versus the feds already proven misconception of how they were able to divine this info?