from the the-law-means-whjat-they-want-it-to-mean dept.
Wired has an article about the latest in the Silk Road legal drama. From the article:
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.”
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @10:37AM
On behalf of my client I'd like state the following:
- He did not kill the deceased.
- Also, it was in self defense.
(Score: 3, Insightful) by zeigerpuppy on Wednesday October 08 2014, @10:41AM
Thoughts are rapidly becoming crimes, the govt and militarised corporations a gordian knot and rights a distant memory
(Score: 2) by c0lo on Wednesday October 08 2014, @11:14AM
FTFY
Err... apologies, wrong post. I thought it's this one [soylentnews.org]
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @12:57PM
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @01:48PM
Pretty sure it was just a joke, no editing involved. Applies to the other story, but the comment he spotted that he could apply it to was here.
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @02:22PM
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @03:01PM
The article is about biasing otherwise symmetrical photon emission towards one direction or the other. The OP was changed to read "Rights are left", as in "Photons that should be emitted to the right are instead going left".
(Score: 2) by PinkyGigglebrain on Wednesday October 08 2014, @04:11PM
I fear we may end up having to use Alexander's solution to the Gordion Knot.
I believe it was JFK who said;
"Those who make peaceful revolution impossible will make violent revolution inevitable."
"Beware those who would deny you Knowledge, For in their hearts they dream themselves your Master."
(Score: 3, Insightful) by Anonymous Coward on Wednesday October 08 2014, @11:27AM
You might want to be careful with that logic path. You might not like where it leads to.
(Score: 1, Insightful) by Anonymous Coward on Wednesday October 08 2014, @11:41AM
Quod licet Iovi, non licet bovi, apparently.
its fine for them to hack, and brag about it.
but if i hack and brag about it like they do, i get punished.
Funny how US of A becoming like the 1980'es soviet union :)
(Score: 2) by zeigerpuppy on Wednesday October 08 2014, @11:51AM
It's actually worse, they had dossiers but they weren't updated in real time
(Score: 2) by bob_super on Thursday October 09 2014, @12:01AM
And the Soviets didn't willingly update their own dossiers all day long.
(Score: 2) by RamiK on Wednesday October 08 2014, @11:52AM
"a search of foreign property known to contain criminal evidence"
Seems reasonable to me.
compiling...
(Score: 3, Insightful) by MrGuy on Wednesday October 08 2014, @12:03PM
This is the same government who is demanding US law applies everywhere on the internet. [zdnet.com]
You can't have it both ways. Either a server reachable by the internet but located overseas is subject to US law, or it isn't.
It's nothing new for the government to argue whichever position supports their view in a particular case.
Regardless, this seems like an incompetent omission from a government who's used to committing computer crime domestically without oversight. What's the DOWNSIDE to getting a warrant? Why risk having your case thrown out on this argument?
Also, by the way, perjury is still against the law, as is subornation of perjury. There's a huge difference between "we conducted a warrantless search, but it's OK because a warrant wasn't required," and "we gave sworn testimony we used certain techniques, and knowingly were lying when we did so, but it's OK because the search would have been OK even if we told the truth!"
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @02:31PM
But! Warrants are soooooo much work. I just want to get the bad guys.
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @06:52PM
But! Warrants are soooooo much work. I just want to get the bad guys.
Unless you operate within the confines of the law, you are one of the bad guys!
(Score: 2) by SpockLogic on Wednesday October 08 2014, @12:47PM
Why didn't the government lawyers use the "Think of the children" argument as well. Or were they already up to there nostrils in bovine excrement.
Overreacting is one thing, sticking your head up your ass hoping the problem goes away is another - edIII
(Score: 1) by jbruchon on Thursday October 09 2014, @01:37PM
"Citizen, you must give up all of your human rights while I forcibly insert this electrode in your anus. If we electrocute your intestines it may change the spin of a quantum particle near where a child is about to be raped and trigger an aneurysm in the rapist before it can happen, and IT'S FUCKING WORTH IT IF IT COULD SAVE ONE SINGLE CHILD. If you disagree then you are a serial baby rapist murderer arsonist goat burglar and we'll charge you with whatever this box of fortune cookies say inside." - The U.S. Government
I'm just here to listen to the latest song about butts.
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @12:55PM
From the article:
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.
That argument can also be used to say: if the site's server was on a foreign location, then you don't have jurisdiction anyway and there's nothing to trial the defendant for. Seems like they want to claim global jurisdiction without granting the rights that jurisdiction actually offers.
(Score: 2) by MrGuy on Wednesday October 08 2014, @02:17PM
What I suspect they are arguing is that a person located in the US offered illicit substances to sale to customers in the US, shipped from locations in the US.
That seems a pretty strong case for jurisdiction over the criminal case, regardless of where the server was located. I don't believe even Ulbricht's lawyers (who have raised almost every defense they can think of) has raised an argument that there's no US jurisdiction.
(Score: 2) by tibman on Wednesday October 08 2014, @05:45PM
The tricky part is they could only know where the server was located after they hacked it. They also didn't know who the server owner was or if s/he was a US citizen.
SN won't survive on lurkers alone. Write comments.
(Score: 0) by Anonymous Coward on Wednesday October 08 2014, @04:43PM
If, say, the Chinese government were to hack into US servers because they're non-Chinese property known to contain criminal - according to Chinese law - evidence, I'm sure the US would just nod and chive on. Right?
(Score: 2) by cykros on Wednesday October 08 2014, @07:35PM
Of course not. Hacking foreign held servers is and should be well defined as an act of war, just as if we sent state sponsored commandos into someone's home in another country (at least without the other country's government's involvement or permission). It's a blatant attack on sovereignty, and the FBI has a SERIOUS attitude problem in this area. It's one thing to firewall it off (in which case, you're mostly just attacking your own population...frowned upon, but not an international incident), another entirely to actually launch a digital invasion of assets under the protection of a sovereign state's laws.
It's a shame the UN is such a sham, as this would make a great case for international courts to settle. In lieu of that, I suspect they'll continue getting away with it...but at the very least, any evidence gathered this way really should be getting disregarded by jurors (though "should" and "will" are all too often strangers to each other). You really have to miss the bigger picture to accept this kind of evidence, but then, drug dealers are scary, especially when they use the Internet (or something...).
(Score: 3, Insightful) by Taibhsear on Wednesday October 08 2014, @01:09PM
If it was so blatantly criminal that a warrant should have been trivial to get, why not get one?...
(Score: 2) by mendax on Wednesday October 08 2014, @03:28PM
"In time of war, the law falls silent", a quote by that wise Roman politician (and republican sage) Cicero, that seems to apply here. In this case, the FBI is at war with a criminal enterprise. Therefore, there is nothing they cannot do, regardless of its legality, to complete their investigation. It it means hacking a server without a search warrant, so be it, even if that server is in not in the United States.
I can understand and even appreciate their argument that the server was outside the United States. However, given that the server was living in Tor space, as I understand it, there is no way they could have known where that server really was until they hacked it. To my mind, it's an illegal (and criminal) act.
Don't get me wrong, while I have a rebellious, libertarian streak; I like the idea of the existence of an underground, unregulated marketplace for "usual" products; and have a great distrust of the police in and the government in the United States on every level, what Silk Road and sites like it are doing is wrong, dangerous, and immoral. I frankly don't have a problem with phony drivers licenses and passports despite the obvious dangers since there are times when people have legitimate reasons to travel without their governments knowing about it, but most illegal drugs are Satan's candy and child pornography is the most abhorrent abomination ever created by man. But police have the legal tools to investigate such activities and don't need have the same rebellious streak when it comes to flouting the law.
It's really quite a simple choice: Life, Death, or Los Angeles.
(Score: 1, Insightful) by Anonymous Coward on Wednesday October 08 2014, @05:13PM
(Score: 2) by isostatic on Wednesday October 08 2014, @07:40PM
Actually a quote from a DS9 episode -- Cicero copied it
(Score: 2) by mendax on Wednesday October 08 2014, @07:51PM
Uh... yeah. Well, as you know, death and time lines are not a problem in the Star Trek universe.
It's really quite a simple choice: Life, Death, or Los Angeles.
(Score: 2) by _NSAKEY on Wednesday October 08 2014, @04:04PM
Personally, I was surprised the prosecution didn't try to claim the U. S. government has jurisdiction over the .onion pseudo-TLD on the grounds that Tor was created by the U. S. Naval Research Lab.
(Score: 1) by CirclesInSand on Thursday October 09 2014, @12:54AM
Ulbricht’s prosecutors .. criticize his testimony in passing as “factually and analytically flawed in a number of respects.”
Oooooh. Is that number zero?