The catch-22 predicament of Silk Road defendant Ross Ulbricht

by David Kravets

Photo: Sebastian Surendar

A federal judge has declined to suppress evidence the government is using against the alleged Silk Road mastermind, paving the way for a federal trial set for next month in connection to the website that once sold illicit drugs and hacking tools.

US District Judge Katherine Forrest's decision Friday sidestepped the controversial issue of whether federal prosecutors breached defendant Ross Ulbricht's constitutional rights of unlawful search and seizure. Ulbricht's defense team asserts that the Federal Bureau of Investigation or even the National Security Agency somehow unlawfully gained access to Silk Road severs in Iceland, which paved the way for several search warrants of e-mail and social networking accounts the government said belong to Ulbricht.

But the New York judge said that it doesn't matter whether the government unlawfully accessed the severs. That's because she ruled that Ulbricht has no right to even challenge the seizure of the servers that ultimately led to his downfall last year.

"Thus, whatever methods used—lawful or otherwise—are beyond this court's purview," the judge ruled. [PDF]

She said that Ulbricht denies any connection to the servers and hence has not demonstrated any association to them that would give him the right to challenge the government's methods of seizing the servers. (The government said no warrant was necessary because the servers were overseas.) The judge, however, said that Ulbricht could have claimed a connection to the servers so he could challenge the search.

"The requirement to establish a personal privacy interest might appear to place Ulbricht in a catch-22: if the Government must prove any connection between himself and Silk Road, requiring him to concede such a connection to establish his standing the searches and seizures at issue could be perceived as unfair. But as Ulbricht surely knows, this is not the first court, nor is he the first defendant, to raise such an issue," the judge wrote.

The judge noted that a defendant's sworn statement in support of a motion to suppress [PDF] evidence generally cannot be used against him at trial, however.

"This does not insulate the defendant from all risk, however. His statement may nonetheless be used to impeach him should he take the witness stand in his own defense and, at that time, open the door to the statement," she wrote.

The judge noted that Ulbricht's lawyers were asked if the defendant would assert a "personal privacy interest" in the servers, but they declined.

The underground drug website Silk Road was shuttered last year as part of a federal raid, and it was only accessible through the anonymizing tool Tor. The government alleges that Ulbricht, as Dread Pirate Roberts, "reaped commissions worth tens of millions of dollars” through his role as the site's leader. Ulbricht has pleaded not guilty.

Ulbricht is charged with seven separate crimes relating to the creation, design, administration, and operations of Silk Road. He is accused of facilitating anonymous transactions of narcotics, fake ID documents, and hacking tools.

http://arstechnica.com/tech-policy/2014/10/the-catch-22-predicament-of-silk-road-defendant-ross-ulbricht/