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_NSAKEY writes:

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.”