http://arstechnica.com/tech-policy/2015/02/op-ed-ross-ulbric...
Basically, the evidence was massively damning, so their only serious hope of winning was by challenging the curiously nonspecific way the FBI found the Silk Road server; but they gave up their ability to do so for some dubious benefits.
The government says https://ia600603.us.archive.org/21/items/gov.uscourts.nysd.4...
>In any event, even if the FBI had somehow “hacked” into the SR Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment. Because the SR Server was located outside the United States, the Fourth Amendment would not have required a warrant to search the server, whether for its IP address or otherwise. See United States v. Vilar, 729 F.3d 62, 86 (2d Cir. 2013) (Fourth Amendment warrant requirement does not apply extraterritorially); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 167 (2d Cir. 2008) (same). At most, any search of the SR Server needed only to be “reasonable” – that is, justified by “legitimate governmental interests.” Vilar, 729 F.3d at 86. 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.
which seems reasonable.
The prevailing wisdom about this case seems correct: what shattered Ulbricht's legal defense was his utterly slipshod OPSEC.
What was their probable cause before the server search?
"That search led him to a thread on bitcointalk.org called 'A Heroin Store.' One of the posts there was from a user named 'altoid' who gave instructions on how to access Silk Road.
'You guys have a ton of great ideas. Has anyone seen Silk Road yet?' altoid wrote. 'It’s kind of like an anonymous Amazon.com. I don’t think they have heroin on there, but they are selling other stuff. They basically use bitcoin and tor to broker anonymous transactions.'
Once Alford had the username, the rest was as simple as clicking around. In a separate thread, altoid posted that he was looking for an IT pro. 'If interested, please send your answers to the following questions to rossulbricht at gmail dot com.'
That’s all Alford needed to get a warrant to gain access to that email. By comparing the data found in the email to the data found on Ulbricht’s laptop, the government has created an even more convincing argument that Ross Ulbricht is, in fact, Silk Road’s Dread Pirate Roberts."
http://insidebitcoins.com/news/silk-road-trial-irs-special-a...
There's nothing at all suspicious about the tech recruiting post. It's the same thing everyone here has seen 10,000 times. https://bitcointalk.org/index.php?topic=47811.msg568744#msg5...
He may or may not have been the first to post about Silk Road on Bitcointalk, or anywhere for that matter, but that seems awfully thin ground for getting a warrant.
I'm surprised HN seems to be in favor of such action.
...things add up and produce enough cause to get a warrant. Given the analysis from opsec people, it's not surprising that there was eventually a warrant and an arrest and a trial; given that he was leaking so much information about who he was and what he was doing, the surprising thing is that the feds didn't catch him even sooner.
He made the post looking for a developer 9 months later, on October 11, 2011.
And as I mentioned below, the fake ID issue seems to have come up after the email warrant was issued, so it wasn't a factor there.
which was apparently the first mention. So, as far as the agent could tell, this was the first person to mention Silk Road on the open Internet. That's what's reasonable.
(Also, from a pure Bayesian POV, the fact that it nailed DPR on the very first try goes a lot towards demonstrating its relevance. NB: this parenthetical is not a legal argument; otherwise you could justify any search that turns up evidence.)
Anyway, my answer was that if the police really had such strong suspicion of someone and they were right, they've got to have enough to get a warrant anyway, which is similar to what you're saying.
The fake ID thing seems to have occurred after the warrant was issued, so I'm not sure I see its relevance.
I couldn't care less one way or the other about Ulbricht or Silk Road. Not my circus, not my monkeys, as they say.
But I do think it's disturbing one moderately suspicious post is enough to have your privacy violated.
I would imagine the FBI asked Wordpress for their logged data about that, which could have provided them with additional circumstantial evidence.
* in the legal sense of being arguable via logic, as opposed to an inexplicable decision based on intuition or unthinking application of dogma.
Anywho, you can do the search that got him caught yourself.
https://www.google.com/search?q=site%3A+bitcointalk.org+ross...
The relevant result is now #2, but used to be #1 (http://motherboard.vice.com/read/the-google-search-that-took...)
He had deleted the original comment, but someone had replied and copied the text. He subsequently posted an ad for job postings with the same username and his personal email address (I think rossulbricht@gmail.com).
Basically, he was about as sloppy as it gets if you're running a criminal drug enterprise. Also, his confidant, Variety Jones/Cimon, hinted that he had done some research on Ulbricht and found some stuff. He was absurdly cocky about evading law enforcement. Makes you wonder if he has some kind of psychological disorder.
Ulbricht was found via the server - all evidence that came as a result of that (including the laptop) would have been dismissed if a 4th amendment appeal was successful.
The only evidence found outside of the server chain was the posts to the Shroomery and Bitcointalk - and as the link in grandparent comment points out, this is not sufficient probable cause for a search warrant (and a search warrant on the Gmail in any case would still not have linked Ulbricht to DPR sufficiently)
[1] right in the second paragraph of article linked in grandparent comment:
> The arrest of Ross Ulbricht got its start when the FBI somehow discovered the real location of the Silk Road server in Iceland.
and
> Every shred of evidence except for two “hey, I found this site” posts derives solely from the server seizure.
Basically USA claimed to be using the CoE Convention on Cybercrime in order to have the server raid performed. But that convention requires that USA's government bodies extend the same legal protections to those in other countries as if they were USA citizens within their own jurisdiction (and the other country has to provide the safeguards of their own law too). That is, if the Fourth protects Ulbricht if he was in USA then the same protections must be applied.
This is very sensible. It means that parties can't go off on hunting expeditions and treat the citizens/subjects of other countries in the [convention's] union worse than they treat their own citizens.
Now the testimony I linked to in that prior post at once claimed that the CoE Convention was being used and claimed they weren't certain. To me that strongly suggests the USA government agent(s) was attempting to deceive whilst under oath, perhaps not strictly lying but certainly not being helpfully informative - perhaps they realised after the fact that they'd failed to abide by the convention and so claimed it was maybe "comity" in order to have a get out clause when the issue of safeguards was raised?
> ">In any event, even if the FBI had somehow “hacked” into the SR Server" //
So, such an unauthorised intrusion may not have run afoul of the Fourth, perhaps, but it would either have broken the domestic law or breached obligations under international conventions depending on if they sort permissions from Sweden first or not. [and possibly neither if they established a protocol that bypassed international agreement].
From where I'm viewing it seems USA don't really care about the application of the rule of law neither in USA nor in other countries when it comes to USA government agents.
I think you may be reading too much into the treaty. It isn't clear to me that it demands countries extend all domestic protections (but I have not read it terribly closely). I see where it says the laws they pass to comply with the treaty should provide protections.
Beyond that, I don't think it obligates the US and Iceland to cooperate solely under that framework, what it does is create a situation where if the US comes to Iceland with a proper warrant, Iceland is obligated to comply with that warrant. If the FBI just wants to send the police in Iceland a tip and Iceland does something based on that tip, well, that's that.
>I don't think it obligates the US and Iceland to cooperate solely under that framework //
Yes, agreed. But the statement by the FBI [cf previous Scribd link] claimed they used the Convention to acquire cooperation.
>"Although the Complaint and search warrants in this case refer to the request as a “Mutual Legal Assistance Treaty request,” this description is not technically correct, as the United States does not have an MLAT with Iceland. The request was instead an official request to Iceland issued pursuant to the 2001 Council of Europe Convention on Cybercrime and other relevant law of Iceland, and as a matter of comity."
That statement is sketchy as anything ("we said it was MLAT but it wasn't"): it absolutely _looks_ like they concocted the rationale allowing the search after the fact and without due process.
I'm not sure if the treaty has anything about bypassing its terms either.
I really have no idea if the MLAT error would matter or not, but if the lawyer writing the brief is aware of the mistakes in the previous documents, it'd be way sketchier to not mention it.
It doesn't look like a mistake beyond the "we got caught in a lie" type of mistake.
For avoidance of doubt I don't personally think that this should invalidate the evidence gained. To me the truth is important. However, the officials involved if proven to be acting without legal rationale and without attention to due process and the rule of law should be heavily punished. Indeed if my reading of the CoE Convention is correct then an official apology would be due to Iceland for breaching the terms of the Convention as well.
I'm not sure what you are getting at here. I imagine the call went something like:
US: "We think we've found [blah blah blah]. We'd like you to seize the server."
Iceland: "Eh, OK, sounds good."
Then, if the statements that RMP followed Icelandic law are not a fabrication, they would have continued on until the RMP felt they had sufficient information to get their warrant or whatever.
I don't think the Icelandic government or police would have treated the FBI as an adversary.
I'm not suggesting they'd treat a request adversarially, I'm suggesting that they'd need to get evidence to apply to a court for a warrant (or whatever the local procedures are) under local laws or they'd need to ensure the operation met the requirements if the request was under CoE Convention say.
Perhaps I have too high an opinion of law enforcement agencies and the idea[l] of rule of law is just a charade?
Iceland are signatories to the ECHR for example which extends property and privacy rights.
Subsequently, after obtaining the legal process required under Icelandic law to search the server, and after consulting with U.S. authorities concerning the timing of the search, the RMP covertly imaged the server and shared the results with the FBI on or about July 29, 2013.
It's certainly possible that the memo is full of misrepresentations or that the FBI mislead the RMP, but I don't think it is so likely that it should be assumed to be the case.
And if Iceland gave over the info in error, that's their problem, not the US's.
If Iceland did the USA's bidding and in doing so contravened the USA's Convention agreement then it certainly looks like that should be the USA's problem - in practice USA don't seem to care about that sort of thing. The international community shouldn't allow USA to act unlawfully to parties just because they're not on USA soil.
What I'm saying is that it looks like the USA's request required them to provide certain legal protections that they didn't extend. It seems like they were prepared to flout the rule of law in order to apprehend DPR. The ends are right but I don't think they entirely justify the means.
[1] http://biotech.law.lsu.edu/Courses/nat-sec/2009s/InreTerrori...
(For example, this Bloomberg article still uses the FBI estimate of $1.2 billion in transactions even though the analysis by the prosecution's witness found $213.8 million after examining Silk Road records.)
Silkroad is a joke compared for example to some 300% increase in heroin production that Afghanistan saw after America invaded - it's just the later isn't favorable to publicize.
Notice - Even wikipedia blatantly quotes the misinformation published in the document in it's article:
It noted that, "From February 6, 2011 to July 23, 2013... The total revenue generated from these sales was 9,519,664 Bitcoins, and the total commissions collected by Silk Road from the sales amounted to 614,305 Bitcoins. These figures are equivalent to roughly $1.2 billion in revenue and $79.8 million in commissions.
But - for the bitcoins to amount to 1.2 billion dollars they would have to be priced at a relatively high 2013 mark at least 100 magnitudes above 2011 prices (from which their estimate begins).
For the record the world-drug market is estimated at around $400 billion, so if silkroad over the course of 2.5 years had a turn over of 213 million, that would place it as accounting for .02% of the drug trade. Not the staggering blackmarket the FBI and US media have made it out to be.
Instead of simply saying that, you say "it's highest values" and "they would have to be priced at July 2013 high on MT. Gox."
Just so we're clear.. July 2013 was in the midst of the Mt Gox scandal, and the price had just recently tanked from $220 in april, down to $66 in early july. In June Mt Gox had suspended withdrawls.
http://blogs.wsj.com/moneybeat/2013/07/05/bitcoin-operator-m...
> You're really stretching the truth here
It's a huge stretch of the truth to estimate all values over 2.5 years in real time.
They are retroactively estimating the number of bitcoins that passed through from February 2011 (when bitcoin was worth some $0.10 or something near there) but pricing the net total over 2.5 years as of the 2013 value. (That's already a magnitude of 100, so the difference between 200-130 there is quite little).
You're right I didn't give accurate pricing numbers, I'll double check next time before I specify months and values, but my main point still stands. (Actually prior to Feburary 2013 Bitcoin was under $10 - so again their estimate is several magnitudes off.)
Most of the time, it seems to be around $10.
Of course, if he kept his earnings in Bitcoins (which he did), then they would fluctuate with the market price.. to about $120, which was about the market price when he was arrested.
And the truth is, Bitcoin's price was above that amount for most of 2013, and all of 2014, and today it stands above that price. So he could have sold his Bitcoins for even more than $120.
Sure it's not $0.10, it's $0.7 - and yes the price is mostly around $10 - which is my point; that the estimate they given is incredulous unless literally 95% of their transactional volume over 2 years occurred between April 2013 - July 2013.
Ok.. thanks.. that was my point. The FBI estimate might be off by an order of magnitude, but the amount you made up was off by TWO orders of magnitude. At least the FBI estimate had some tie to reality (the value at the time he was arrested).
Surely the bulk of the activity came later on in Silk Road's life though right? It's not like each day had the same number of transactions.. For all we know, the FBI looked at all of the transactions into and out of SR and did a perfectly weighted average pricing query.