Law Quarterly

Dangerous Precedents for the Future of Internet Usage

By Melissa Esposito

Sep
27

The Silk Road was an online peer-to-peer, reputation-based online market. It differed from standard shopping websites like Ebay and Amazon in that it was created to run through the TOR network, and transactions on the site were conducted in an anonymous cryptocurrency; Bitcoin. The combination of these two aspects, as well as other encryption measures taken by the site’s creator, made all sales on The Silk Road completely anonymous and thus untraceable by law enforcement. This allowed for the proliferation of illicit sales on the website, which sold everything from drugs to hacking services to fake IDs. The anonymity of the website allowed both buyers and sellers to operate beyond the scope of the law and so naturally, the FBI shut it down and had its creator arrested.

The eventual takedown by the FBI implicated many areas of the law including due process, Fourth Amendment protections against illegal searches, the limitlessness of government surveillance, and concerns about prosecutorial misconduct. It reflects the ideological struggle between the state and those who seek to limit its monopoly on the control of citizens. Through the precedents this court case set, the state effectively crushed citizens’ rights, limiting freedom on the internet.

Ross Ulbricht, the creator of The Silk Road, was convicted of money laundering, computer hacking, conspiracy to traffic narcotics, and was sentenced to life imprisonment without parole. Ulbricht will serve for the rest of his life on behalf of the non-violent crime of creating a website that facilitated sales.

The first precedent set by this case was that the burden of proof needed to justify a life-sentence was substantially lowered. The court, under Judge Katherine B. Forrest, sentenced Ulbricht to a life in prison without parole based almost solely on digital evidence. Ulbricht’s emails, chats and screenshots from his laptop were enough to convict him, yet no first-hand proof or witnesses were called forward to prove that Ulbricht was in fact the author of this material. The government agents who uncovered The Silk Road, and played a hand in its eventual takedown, had unrestricted access to the administrative functions of the website. This meant that the operatives had the ability to change almost any aspect of the website, including the emails, and online chats that were used against Ulbricht in court.

All digital evidence inherently lacks integrity; it can be easily manipulated, hacked into, and fabricated. Proof that such tampering occurred in the Silk Road case came out after Ulbricht’s sentencing; some of the communications within six weeks of Ulbricht’s arrest had been wiped from his laptop. The communications missing from the official evidence presented in court are suspected to have been between Ulbricht and an undercover government agent. This just goes to show how unsound the evidence was; yet once this was uncovered, retrial was still denied by Judge Forrest.

The missing messages between Ulbricht and a potential undercover agent are especially troubling when considered along with the knowledge that two of the federal agents active in The Silk Road case were charged with corruption and laundering money from the Silk Road. These same individuals had unfettered access to the administrative accounts of the website, and incentives to change records on the site to cover their trails. What may be even more unsettling is that this information was barred from being presented in court, a clear violation of due process. This information could have been used in Ulbricht’s defense, but was suppressed from being heard by the jury.

Along with due process, The Fourth Amendment also seemed to be violated in this case. The Fourth Amendment protects against illegal search and seizure “not limited in scope and application”, and was drafted by the Framers with only physical property in mind. The warrants used by the government to obtain evidence against Ulbricht were general and allowed for nearly unrestricted searching for incriminating evidence on Ulbricht’s laptop. This quite clearly was a search and seizure not limited in scope, and therefore the evidence obtained should have been inadmissible due to its unconstitutional discovery. However, the court ruled that it could be used.

The decision to permit this kind of evidence overturned a precedent set in 2014 in US v. Ganias which recognized the importance of the particularity requirement in the context of electronic evidence. Just as law enforcement needs to know specifically what the warrant they are using requires them to search for in a home or elsewhere, cyber-crime investigations need to know exactly what is being looked for on a laptop, or electronic device. The particularity requirement was not upheld in this case, and officers were allowed to search without bound for incriminating information on Ulbricht’s laptop. Thus, your digital information is now afforded even fewer constitutional protections than it already had, in comparison to your physical belongings.

Additionally, it is still unclear how exactly the FBI uncovered the internet servers that The Silk Road ran on. Records stated that officials were able to uncover the IP address of the server because it was being leaked online. Experts in the field of cryptology, digital forensics, and dark nets, as well as technology lawyers, all say that given the structure of the website, this was implausible. There are some logical inconsistencies in the story of how the server was legally found, but according to Edward Snowden, it is likely that the NSA lended a helping hand in uncovering the location of the Silk Road Server. This would correlate with the fact that one of the corrupt agents mentioned earlier was also an NSA employee and a computer forensics expert.

Since the creation of TOR, the software has been used for more than just making anonymous purchases, it has played a supportive role in the political sphere and has helped to effect change. Tor has allowed activists to avoid facing persecution under oppressive regimes such as those in Iran, Syria and China. The anonymity afforded by TOR empowered journalists and activists to spread news on human rights abuses and dissenting pro-democracy opinions which would have otherwise been suppressed. It has helped domestic-violence victims hide from online stalkers; and it has allowed ordinary citizens to browse online without being tracked or traced by anyone. The anonymity afforded by the TOR network helps to protect against oppression, and guarantee privacy. If the United States government was at liberty to override this anonymity by effectively hacking the encryption software in order to find the Silk Road’s Server, as suspicion has led experts to believe, then the system may eventually no longer be able to secure the benefits that it’s users rely on.

Across the board, the precedents set by this case have gone to show the expansion of the scope of government surveillance, and the changes in how the law treats internet usage. The prosecution of the case eroded several constitutional rights, including due process and the Fourth Amendment, setting the precedent that The Constitution is limited in its protections of freedom on the internet.

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