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Comment by Someone1234 | Hacker News Reader

> Ulbricht hadn’t sufficiently demonstrated that the server belonged to him, and thus can’t claim that his privacy rights were violated by its search.

Wait, wait, wait. Hold the phone.

So any property which, at the time of a search, hasn't been "sufficiently demonstrated [that it belongs to you]" isn't protected, according to this judge, by the fourth amendment?

So for one example, if you sign up to gmail or Facebook using anything other than your real name, they can break it, conduct a search and then whatever they find is totally admissible in court just because they didn't know who it belonged to?

Isn't it now in the best interests of the police to avoid finding out who something belongs to since without knowing the fourth amendment doesn't exist and warrants aren't a requirement?

Here's what I don't get about this case: The FBI is obviously lying about how they got the information they have. They clearly broke into the Silk Road servers. However they could have certain got a warrant to do so had they just presented what they knew at that time about the enterprise. So why didn't they? Laziness? Incompetence? Or just because they knew they'd get away without it (per this)?

Honestly I hope they fight this case on that matter of law and it gets thrown out. We cannot have the fourth getting chucked out any time someone invokes anonymity, that's not how it was meant to work.

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> So any property which, at the time of a search, hasn't been "sufficiently demonstrated [that it belongs to you]" isn't protected, according to this judge, by the fourth amendment?

That's not what this means. You can't claim fourth amendment protection on someone else's property: I can't claim my rights were violated because the police searched your car. The court is saying that you have to claim it's your car first before you can claim that your rights were violated by the search. (Well, not exactly. The situation is more nuanced.)

To put it another way, the court's not saying that this was legal, or that nobody's rights were violated. The court is only denying Ulbricht's specific claim that his rights were violated, and the denial seems to be based on a procedural technicality.

Yes, this is bad.

This logic seems like it would apply to cell phones which have been subsidized by a contract which continues to exist as well. Aren't they considered to still be legally the phone companies' till you've reached the end of said contract?

Bad indeed.

No, subsidized phones aren't the carrier's property while you're in contract. You're liable for an early termination fee if you break the contract (barring the case of "adverse changes" or the like), but you own the phone — or at least the atoms in it.

You still have a reduced "expectation of privacy" in your mobile communications, however, in that you're using your carrier as an intermediary to those communications. Consider pen registers, for example.

I reviewed the legal argument that the CTIA made in favor of disallowing end users from unlocking phones and it turns out I was mistaken and you are correct.

Shouldn't evidence be inadmissible based on how it was obtained? An illegal search is an illegal search regardless of what was searched or who owns it.

I'm not a fan of the defendant here, but I am a fan of holding the authorities to the rules. You know it's their job to uphold the law.

That's just the way it works. I agree with you, but the courts don't.

> I'm not a fan of the defendant here, but I am a fan of holding the authorities to the rules. You know it's their job to uphold the law.

Yes, evidence is inadmissible based on how it is obtained. However, there are rules and procedures for how you get evidence excluded from a trial. This is why you pay good money for good lawyers: they know the rules for excluding evidence. I recommend watching the 1992 moive "My Cousin Vinny".

The unfortunate part of all of this is that we're now in a system where you win by paying more money to cover more technicalities than the other guy.

Sure, this follows the rules, but it seems perverse to lose on a technicality that is easy to resolve with a "hey, prove you own the server. you did? ok."

But the thing is the judge gave them exactly that option and Ulbricht's lawyer inexplicably declined to take it - see page 22 onwards.

So either a) Ulbright can't prove he owns the server (in which case he can't very well claim privacy rights in something that's not his property to start with), or b) he is not willing to, even though doing so might keep most of the evidence out of trial. Maybe that's because of some super-clever legal tactic they plan to unveil at appeal (although this seems very unlikely, as this is such a basic procedural issue) or maybe it's for some extrajudicial reason, like because it would reveal the identity of some partner in crime who would then seek terrible revenge. Or any other number of other possibilities.

Shouldn't the government's claim that the server was owned by Ulbright effectively concede the point?

I don't know, but I think Ulbricht would need to concede that explictly. I don't feel like digging through all the filings to try and figure out his counsel's strategy at this hour, though.

Your typo fits the Pesci's accent.

> I'm not a fan of the defendant here

I want to suggest that this phrase is potentially toxic. Ross's name has been horribly tarnished, not unlike aaronsw before him.

I, for one, think that the evidence suggests he's a pretty good dude. I have seen nothing that makes me believe there is any truth to the arranged murder allegations.

Also, having met and spent half a day in his mother's company, I can tell you that she is a warm, concerned soul and I got the distinct sense that she was telling the truth about this whole thing.

Putting aside the accusation that he tried to put a hit on someone, do you think he's innocent person and wasn't running the Silk Road, or that he was a nice guy who just happened to be flagrantly flouting the law in running an illicit marketplace for drugs, kiddie porn, stolen credit cards, and other illicit goods and services, while engaged in a money laundering scheme? I am genuinely wondering here.

If the accusations about him running the Silk Road are true, I think two things:

1) The technology and political material he published as DPR is compelling, interesting, and worth reading. This contribution is meaningful.

2) That there is nothing inherently criminal or morally reprehensible about allowing people to freely transact with one another.

...but that's not the point I was making. The point I was making was that any time the government targets somebody, we find ourselves saying, "I don't want to defend <x>, but I will say..."

But why not? Especially with aaronsw. I find it shocking that this phrase was suddenly through around so often after the indictments. We all knew what he was doing. I supported him 100% and do not believe he did anything wrong.

At the end of the day, we have to be willing to defend not only each other's speech and actions, but each other's characters if in fact they're worth defending. I think aaronsw and DPR are characters that are worth defending.

While I have a lot of sympathy for aaronsw, and admired a lot of the work he did, I don't see a lot in common between the two.

The Feds. charged both, but the thing is that the charges brought against aaronsw were largely absurd. He appeared to have broken a few misdemeanor-class laws, but was charged with wire fraud and the CFAA in ways that didn't really fit what he did at all.

The Feds. are charging Ulricht with things that he mostly was personally responsible for. He very much appeared to be engaged in narcotics trafficking conspiracy, continuing criminal enterprise, computer hacking conspiracy, and money laundering conspiracy. He set up an environment where people can freely transact with one another, but tailored that environment to narcotics trafficking, credit card fraud, selling malware, and money laundering, and chose to engage in tailoring the site specifically for those things. He was fully aware of the illegal transactions occurring through his site and not only did nothing to stop it, but enabled it and profited from it. He was also hit with a Kingpin charge that probably will stick, since he was personally involved and managed an organized crime scheme.

The Silk Road designed a site for drug trafficking and other illicit activities, recruited drug and encouraged dealers, and took a commission from the sales. Since the Feds. have the server they have a sea of evidence to show how the site wasn't running with no knowledge of what transactions were happening, but tailored itself to be effective at drug, CC, and malware trafficking.

Whatever you think morally about profiting off drug deals, malware sales, CC fraud, and money laundering, the law is really clear about it.

aaronsw was engaged in a kind of hacktivism that expanded open access to public information and contributed to the open web in many ways. Ulricht was engaged in making a profit by opening a marketplace for illegal activities and tailoring it for drug deals. There's a world of difference.

> There's a world of difference.

Agreed. Of course.

aaronsw is a personal hero of mine. I'm not trying to elevate Ross / DPR to that level.

I do think, though, that subverting controls that inhibit free consensual activity between adults is virtuous.

Furthermore, I'm not at all convinced that Ross did most of the things you mention. The indictment reads like a product of zeal and overreach, not a dispassionate document outlining a person's conduct and how it clearly violates plain language.

That he has been denied bail on this basis (especially when he hasn't been charged with the offenses that constituted the entirety of his bail hearing) is egregious and further suggests that he's being specifically targeted.

"subverting controls that inhibit free consensual activity between adults is virtuous."

It depends entirely on what that consensual activity is. If the activity is selling stolen credit card numbers, then it's facilitating theft and doesn't seem virtuous at all, since it's harming a third party. If it's exchanging kiddie porn, again it's harming a third party. If its selling malware, then it's a free exchange with the intent of violating others privacy or otherwise harming them, which does't seem virtuous at all to me. But those were all services that Ulricht not only knowingly facilitated, but worked to specifically facilitate. While I don't agree with the US drug laws, assuming he was responsible for the Silk Road, Ulricht was choosing to facilitate many sorts of exchanges that while consensual between the parties involved in the exchange, were exchanged motivated by profiting off the harm of other parties who weren't consensually involved, but were either victims of crimes or were victimized by the use of the product of the transaction.

"The indictment reads like a product of zeal and overreach, not a dispassionate document outlining a person's conduct and how it clearly violates plain language."

I dunno, they laid out a pretty clear case of what the law was and how it was broken in my reading. He was pretty clearly violating various criminal conspiracy laws that were written to deal with just the kind of thing he was doing.

Wait, when was kiddie porn ever sold on SR?

While I have never been on the site I'd seen it mentioned as being one of the things that was trafficked, and the wikipedia article lists it. Looking into it, that might just be articles using sensationalism, though. Looking into the ref. in the wikipedia article, one of the links used as a citation for the child pornography claim actually stated the opposite - that they didn't allow it, so I think I was probably misinformed there.

Ah! You present a great logical argument to disuade one from the point. After all who could be for kiddie pr0n? Regardless of what Ulbricht did what the GOV is doing is where the focus ought to be as its resulting in the ebbing of our freedoms! Thats what this is about not drugs, sex nor monies. Although impossible to prove its likely we are witnessing some form of parallel reconstruction.

I was responding to someone who had been praising Ulbricht (who really looks like an awful person), so in that context I was questioning how one would compare him to Aaron Swartz (who I admire).

I think I was incorrect about the child pornography claim, though that was only one item in a list.

While we should also be looking at the Feds. who are certainly no angels, we shouldn't pretend that everyone the Feds. prosecute is a martyr. The problem is that the legal argument that the server was protected under the 4th was made poorly by the defense, and their arguments against the Feds. haven't been very strong. Perhaps there will be more time for the Feds. to ...clarify... their story of how they managed to get the IP, and if it's shown that they used illegal means then that evidence should be dismissed. So far the defense has looked as amateur as Ulricht's PHP programming, but we'll see. Their claim that since Ulricht wasn't actually engaging in the transactions personally, that he wasn't involved in a conspiracy made them look like they were, um, morons. There's even a chance that the Feds. can convict with the many other pieces evidence that they have that isn't hit by the Fruit of the poisonous tree (esp. in the pending case filed against Ulbricht in Maryland).

I'd like to see justice served on all fronts, with the Feds. nailed for their wrongdoings, and people like Ulbricht nailed as well.

You're the first person I ever heard suggest the possibility that Silk Road was used to distribute child pornography (which was probably among the many things covered by SR's TOS ban of things harmful for others)

Do you have anything substantiating your claim?

PS: nevermind, I just found out your other comment further below: https://news.ycombinator.com/item?id=8441338

Your understanding of the rules is in error, though.

And in this case, the court has never got to the question of whether the search was illegal, because the defendant's motion to suppress is not well-formed (despite the court providing the defense with an opportunity to correct that). Courts don't have much initiative in our common-law system, constitutionally speaking their function is to resolve disputes between parties, meaning the onus is on the defense to make the argument about the illegality of the search warrant and to do so in correct legal form.

Very interesting. So, at a minimum, you must disclose that a thing is your property to prevent illegal searches of that thing from being admitted in a case against you. That means that if you can be convicted under either of

   - thing.BelongsTo(you)
   - thing.Contents

fourth amendment protections will not save you. Am I reading this right?

> Am I reading this right?

Fortunately, no. The article explains it better than I could:

> That argument may seem like a Catch-22. If Ulbricht were to claim ownership of that server he would seem to incriminate himself. But Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn’t be used against him as evidence. “Defendant could have established such a personal privacy interest by submitting a sworn statement that could not be offered against him at trial as evidence of his guilt (though it could be used to impeach him should he take the witness stand),” she writes. “Yet he has chosen not to do so.”

That sounds completely broken.

So he has to "pre-trial" admit to owning the "evidence" or "tool of committing the crime", or something. Thereby admitting "guilt" without it being admissible in court later on. So then, everyone knows he's guilty, because he admitted it, but they can't "prove it" because of a technicality of using that evidence.

The reason that sounds broken to me is that he has to first admit guilt in order to defend some "noble" right to privacy that'll allow him to be acquitted. If he does that, his entire life is ruined because he will forever be tainted in the media and law-enforcement as "guilty, but got away due to a technicality". They will never stop hounding him, and will actively put him under their investigation spot-light for his entire life. This applies whether he's actually guilty, or not.

There's one bit that I'm not sure how to read because I'm not a lawyer:

> “Defendant could have established such a personal privacy interest by submitting a sworn statement that could not be offered against him at trial as evidence of his guilt (though it could be used to impeach him should he take the witness stand),”

It sounds like he could provide proof that he owned the server having the contents of the server thrown out. Then provided he didn't take the stand in his own defense the affidavit couldn't be used. Not entirely certain though.

Almost there. The affidavit could only be used if he took the stand and gave testimony inconsistent with the contents of the statement.

He didn't own the server though, did he? I thought it was leased.

Leased provides the same protections as ownership afaik, just because you have leased a car doesn't mean the police can search it with impunity.

The 4th is a complex one. There's a full flowchart here:

http://lawcomic.net/guide/?p=2256

The rule most relevant to this case is found here:

http://lawcomic.net/guide/?p=2210

Essentially, you don't have standing to challenge a seizure for abandoned property and one way you can abandon property is by denying ownership.

However if the government then claims that this server is owned by you, doesn't that then imply that your privacy rights were violated since they illegally hacked into your computer?

The government can't have it both ways. Either the server is owned by Ulbrecht and they violated his rights, or the server is now owned by Ulbrecht, and thus they can't prove he is the DPR.

> The government can't have it both ways. Either the server is owned by Ulbrecht and they violated his rights, or the server is now owned by Ulbrecht, and thus they can't prove he is the DPR.

It's not that simple. The courts follow procedures for these things: the courts respond to claims made by various parties, and if there is no claim that the evidence is dirty, or if the claim that the evidence is dirty is not proved for whatever reason (even silly technical reasons), then the evidence is admitted.

Don't forget that this is only one court. Higher courts could find the judge's ruling incorrect.

I started to read Alderman v. US after Forrest said that 4th Amendment rights cannot be vicariously asserted. I'm a little unclear on how this works. Could an investigator warrentlessly burgle the residences of two conspirators A & B, and use evidence found in B's place against A and evidence found in A's place against B, all without violating the fourth amendment? How about email accounts? If so, why don't investigations against known conspirators proceed this way all the time?

Seems like it should be possible for the defense to argue that the prosecution must stipulate that the server was his property, in which case his rights were violated, or that the prosecution must stipulate that it was not his property and that they have no case against him. What is wrong with this argument in a legal sense?

What you bring up may be an issue for a post-conviction appeal, as a guilty verdict would be a finding that the servers were controlled by him, which dictates that he had a privacy interest in them. But that would be after he's convicted and buried under the jail.

I think the argument is that the information found on the server shows that Ulbrecht was running this. It'd be like if I was using eBay to sell drugs. I don't own eBay, so I couldn't claim my 4th ammendment rights were violated by a search on eBay.

I don't understand how this isn't an illegal search irregardless though (maybe the server hosts gave the FBI permissin? I'm not aware of the specifics)

I don't mean to be rude but that's just some backseat lawyering here. That's not how this works at all.

"That's not what this means. You can't claim fourth amendment protection on someone else's property"

Ok, so if you rent a car for 3yrs, then they can search it without your consent because technically you don't own it?

No. While the car is legally in your possession and you leave it closed, you have an expectation of privacy even though you don't own the vehicle title outright.

Its still illegally obtained evidence even if the server belongs to him or not. Illegal evidence is still illegal evidence.

The 4th amendment isn't exactly a "right". It's a limitation imposed on the government. The whole Constitution is. The government is not supposed to conduct "illegal searches and seizures".

It doesn't say on the victim's property or whatever.

Seems the FBI is claiming the servers were his, and he was operating them, so they are prosecuting him. But somehow they aren't his property, and therefore not protected by the 4th?

That seems bassackwards.

Based on the third-party doctrine and United States v. Graham [1], even if you used your real name, you would not enjoy 4th amendment protection of data stored on an outside company's server (they would be protected, though).

It's fairly well established by the Court that there is no "reasonable expectation of privacy" for information disclosed voluntarily to a third party, as with your Gmail example.

[1] http://en.wikipedia.org/wiki/United_States_v._Graham

Would the same apply to a server I rent? If not, how is that different from paying for Gmail?

Personally I find the judge's ruling utter rubbish. It is irrelevant if the server was Ulbricht's or not. If the FBI is trying to use evidence found within the server against him, then they should have to prove that they obtained it legally, whether or not it belongs to another individual or Ulbricht. And continuing on your point about best interests, this would amount to rolling up to random cars parked in a parking lot and having a drug sniffing dog walk around until they find something, then trying to arrest everyone parked around the car.

> And continuing on your point about best interests, this would amount to rolling up to random cars parked in a parking lot and having a drug sniffing dog walk around until they find something, then trying to arrest everyone parked around the car.

But that pretty much exactly that FBI and other agencies are doing right now in the Internet. And this ruling puts a legal precedent footing under such behavior.

This ruling doesn't establish a precedent. If it's appealed and upheld, that would establish a precedent.

In the US, trial courts find rulings of fact, and appellate courts find rulings of law. Only the latter create precedents.

Half right. Trial court judges make rulings of law, juried make findings of fact. An appellate court can then correct the trial court's legal errors, if necessary. But you're right that trial courts' legal rulings aren't precedential.

Yeah, "finding of fact" is a more apt phrasing than "ruling of fact". I thought of that after posting my comment, but felt it was a probably bit fine a distinction for the point I was making. Thanks for the clarification.

Pretty sure they would do this.

> “He has failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he has failed to submit anything establishing that he has a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized.”

This is the critical point as the judge notes. The FBI isn't proving that he owns it yet, just submitting it as evidence. The judge can't rule based on the fact that the FBI will eventually prove that Ulbrircht. At this point it's just a server that the FBI found something on they're planning on using in the trial. Combine that with the fact that the fourth only protects your own property from search and there's nothing the judge could really do.

There's some additional oddness around if the sworn affidavit would could be used to prove he owned the server later in the trial. It sounds like he could plead the 5th and the affidavit wouldn't hurt him but I'm not sure.

It's very similar to the reason judges have had to reject legal challenges to the NSA spying apparatus, the defendants couldn't show that they had standing, i.e. they were affected by the law.

In short his lawyers screwed up by failing to prove he had any standing to challenge the server as evidence in the first place. Providing this proof would give an unknown amount of damage to the prosecution but the contents of the server would not have been admissible at least.

So in short his lawyers fucked up

>The judge can't rule based on the fact that the FBI will eventually prove that Ulbrircht. //

But don't they need to do this at some point in order to get a conviction - if this server is that used to run Silk Road and they want to prove that he ran the Silk Road then it seems like a necessary step. At the point of them making this claim surely the judge has to say "if this evidence proves the defendant owned the server then you've infringed his rights under the Fourth Amendment and the evidence must be discounted"?

Yes, but at this point there's no proof that the server belongs to him so the judge can't throw it out because he has no standing to challenge it's admissibility in the trial. I don't think that this precludes it from being thrown out on appeal or later in the trial but the motion to dismiss before the judge couldn't go through. What the judge ruled right now is just about the pretrial motions to dismiss. I'm not well versed enough in the legal system to say if this is prejudicial against it later being found to have violated his 4th amendment rights, judges can strike evidence from the record at later points though.

Or no. If they can prove that was the silk road server, illegal activities were being facilitated by it, and DPR was accessing and managing it then I don't see them needing to prove he owned it(which it seems he didn't because it was leased).

"At this point it's just a server that the FBI found something on they're planning on using in the trial."

Yes, a server they potentially broke into and violated someone's privacy over. Why does it have to be more complicated than that?

In fact, someone at the FBI should be charged with some sort of illegal-seizure crime, or violation of privacy crime. Whatever it's called these days by the lawyer-priesthood.

"The FBI is obviously lying about how they got the information they have. They clearly broke into the Silk Road servers."

This isn't obvious at all and the only backing we've seen for this is some butthurt speculation. Meanwhile we know for a fact that the Silk Road IP had leaked multiple times in the months before the FBI claims it leaked to them.

The two things do not exclude each other. An IP is not a magic key that will open all doors.

Sure, but knowing the actual IP address certainly narrows down which ISP to send a subpoena to in order to image the storage of that server.

Can the FBI issue subpoenas in the USA, don't they need the court to do that?

My reading of the Cybercrime Convention they claimed to use (see my other post) means that if they needed to get a subpoena then they would need to get one before the Convention could be applied to compel the Swedish authorities to perform the search on their behalf.

They don't appear to have got a warrant, a subpoena nor any judicial oversight before ordering the initial search and seizure - that appears to break the Convention. Perhaps that's why there's a footnote saying they may have asked the Swedes just for comity's sake, it's so hard to remember!

What I'd really want to see to prove their position is the captured packets from their initial probing of the publicly available homepage that include the IP addresses. That would show suggest they were telling the truth [eg when matched with other peoples captures that the FBI don't yet have access to]. I'm going to go ahead and assume that they don't have that data. IMO if they can't produce that data it demonstrates the personnel in court are either completely incompetent in their positions as investigators and should be fired immediately or they are flat out lying; something tells me they're largely competent.

The server wasn't in the USA and from all the information I've read they claim the relevant foreign interests cooperated with them in obtaining the server image.

And I'm pretty sure they would have had NO trouble getting a warrant in the USA if they had a credible lead on the SR server. And any credible hosting company would GLADLY cooperate to the fullest extent with such a warrant. Generally hosting companies do not care what you're doing on your server and won't get in the middle of disputes UNLESS:

A.) You're doing something illegal

B.) Your actions pose an untenable threat to the network or other customers

>from all the information I've read they claim the relevant foreign interests cooperated with them //

The law they claim to have used requires that the requesting country act as if the computer being searched is in their own company, all protections that would apply domestically must be applied in order to request the search lawfully.

If they needed a warrant to get the local search done (eg in Pennsylvannia) then they needed one in order to use the 2001 Convention on Cybercrime to request that Sweden perform a search (and imaging) for them.

This appears to be a hole in the FBI argument - as you say, they're claiming they didn't need a warrant or to provide protections that would normally be applied if the server were in the USA. But the Convention used - by my reading at least (see my other post for links) - contradicts that specifically demanding that the normal domestic protections and procedures be applied.

> they could have certain got a warrant to do so had they just presented what they knew at that time about the enterprise. So why didn't they?

Perhaps they want to set a legal precedent which would require less checks & balances.

If the government wants to erode the 4th, shouldn't they go through congress?

What an odd question. "If the government wants to do a bad thing, shouldn't they do it a good way?" Doesn't the willingness to do a bad thing kind of imply that they will be willing to do it a bad way?

Not really. If you look at the intention of Barack, he totally wanted to codify into law, using normal channels and the full power of democracy the detention, execution and "enhanced interrogation" of WoT suspects.

Not sure what is worse. Democratically passing new bad laws or subverting the constitution via underhanded techniques. I guess the former is depressing and the latter shows mal-intent?

Burn down the Reichstag or get 3/4 majority to nullify the 4th?

I'd argue that it should be a constitutional offense to weaken the constitution using non-constitutional means. Attempting to rewrite the rules of the game during gameplay should get you autobanned by punkbuster.

See http://lawcomic.net/guide/?p=1688 for a very readable guide to why they would rule like this.

You might find it helpful to start at the very beginning of that section, which is back here: http://lawcomic.net/guide/?p=1373

EDIT: Also this - http://lawcomic.net/guide/?p=2210

Forget the 4th Amendment - how does FBI even have the "power" to hack into other nations? What's next? NYPD hacking into other nations? (probably already happened, unfortunately)

It's the "fuck the rule of law" technicality. Coming soon, to a police state near you!

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