Judge Rejects Defense That FBI Illegally Hacked Silk Road—On a Technicality

[unhappycamper]

http://www.wired.com/2014/10/silk-road-judge-technicality/



This artist rendering shows Ross William Ulbricht in one of his first court appearances a year ago.

Judge Rejects Defense That FBI Illegally Hacked Silk Road—On a Technicality
By Andy Greenberg
10.10.14 | 4:59 pm

Lawyers for Ross Ulbricht have spent the last two months shifting the focus from their client, charged with creating the billion-dollar drug market the Silk Road, and putting it onto the potential illegality of the FBI’s investigation. Now the judge in that case has spoken, and it’s clear she intends to put Ulbricht on trial, not the FBI.

In a 38-page ruling Friday, Judge Katherine Forrest dismissed the defense’s motion to suppress evidence that hinged on the argument that law enforcement had violated Ulbricht’s Fourth Amendment right to privacy from unreasonable searches. Just last week, Ulbricht’s lawyers went so far as to contend that the FBI had illegally hacked a Silk Road server in Iceland without a warrant to determine its location.

But the Judge’s rejection of that argument comes down to what may be seen as a fateful technicality: she argues that even if the FBI did hack the Silk Road server, 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. “Defendant has…brought what he must certainly understand is a fatally deficient motion to suppress [evidence],” the judge writes. “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.”

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.”

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This Warren Zevon video sez it all: