The Case, The Goal and Why this Matters
Ross Ulbricht was convicted of the seven felony counts below on February 4, 2015 , based on the accusation that he created and operated the anonymous online marketplace Silk Road, under the pseudonym Dread Pirate Roberts (DPR). The government cites no victims for any of these alleged crimes or their other allegations.
On May 29, Ross was sentenced to five of those counts (#2, 4, 5, 6, 7). Two counts were removed due to the duplication of Counts 1 with 2, and also Counts 3 with 4. However, the jury was told he was guilty of seven counts. The defense argued that Count 2 should be dismissed as also subsumed within Count 4, but this was denied.
Accordingly, Ross was sentenced on the Counts that remained. He received the maximum for each Count, with each to run concurrently to the others: Count Two (life), Count 4 (life), Count 5 (5 years), Count 6 (15 years) and Count 7 (20 years). Because of the concurrent nature, the sentence is life. All offenses are all non-violent.
The charges that the government was required to prove at trial, beyond a reasonable doubt, are:
- Count One: Distributing OR aiding and abetting the distribution of narcotics. Aiding and abetting means knowingly assisting in the commission of a crime, even if he didn’t actually commit the crime. Distribution requires a concrete involvement in the transfer of drugs.
- Count Two: The distribution of controlled substances intentionally accomplished by means of the Internet.
- Count Three: Conspiracy with others to violate narcotics laws. A conspiracy exists if two or more persons, in any manner (whether they verbally agree or not) “come to a common understanding to violate the law.”
- Count Four: Engagement in a continuing criminal enterprise (kingpin charge). This requires that the defendant committed a series of federal narcotics offenses with five or more people whom he organized supervised, managed and from whom he received substantial profit. This charge contradicts Count One, as you can’t be an organizer AND just an aider or abettor. In addition the government failed to identify five people who were organized.
- Count Five: Conspiring with others to commit OR aid and abet computer hacking. No hacking was proven and no one came forward to say their computer was hacked from software sold on Silk Road.
- Count Six: Conspiring with others to traffic in fraudulent identification documents.
- Count Seven: Conspiring to commit money laundering.
The Court also imposed forfeiture in the amount of $183,961, 921. It did not impose restitution because the harm was not quantifiable in terms of money damages.
Approximately two months after Ross was convicted, it was revealed that two federal agents at DHS Baltimore had been under investigation for nine months, for allegedly stealing and extorting funds from Silk Road, among other crimes. One of these men, DEA agent Carl Mark Force, was the lead undercover agent in the case, at the core of the investigation. He and Secret Service agent Shaun Bridges have now been indicted for a massive corruption scheme.
These agents had high-level access to administrative functions of the Silk Road, which they gained from an arrested informant. They had the power to change aspects of the site; access to administrator platforms and passwords; the ability to change PIN numbers and commandeer accounts, including that of DPR.
They also had the means to manipulate logs, chats, private messages, keys, posts, account information and bank accounts. And they had the motive to alter data in order to cover up their own actions and point guilt elsewhere. The defense only learned some of this information five weeks before trial and was blocked from referring to it at trial, as it was under seal pending completion of the investigation.
The defense requested that trial be postponed until the investigation concluded so that the entire story could be presented to the jury, but this was denied. The court’s reason to preclude this information from trial was that
We believe this alleged corruption casts doubt on a large amount of evidence gathered by the government and raises questions about all aspects of the investigation. Yet it was kept under seal during the trial, depriving the jury of essential facts, and Ulbricht of due process and fair trial.
In addition, the agent Carl Mark Force played the single biggest role in the most damning charges leveled against Ulbricht: allegedly organizing a murder (which never occurred). This was not a charge at trial but is charged in an indictment in Maryland and was discussed in the New York trial despite being uncharged and unproven.
We agree with Ross’ attorneys that the trial was not fair. The jury was not allowed to hear the government’s own evidence, favorable to Ross, or the fact that the investigation was tainted by internal corruption. Defense witnesses were blocked from testifying. And Ross’ attorney was hamstrung, unable to effectively cross examine government witnesses. It was a one-sided presentation of only the government’s narrative that precluded much information favorable to Ross.
Ross’ attorney has filed an appeal, both for the verdict and sentencing. This is not over. We believe it is essential for everyone to have a fair trial. When a trial isn’t fair it is a threat to us all.
(Note: The murder-for-hire allegation was included at trial as surplusage, which is an “uncharged crime” mentioned in the narcotics trafficking count of the New York Indictment. It is NOT a formal charge and requires NO PROOF. Ross was not convicted of it. The defense moved to have it removed as prejudicial and irrelevant to the charges, but the judge denied this request).
As we enter the digital age, we are at a crossroads in history. Decisions made now will determine our lives and our freedoms going forwards, which is why precedent and upholding the rule of law is so important.
This case is bigger than one man. Nick Gillespie of Reason called the Silk Road trial “the most important trial in America,” and said it could forever alter how we all use the Internet. He added that if you care about due process, Fourth Amendment protections against illegal searches, the limits of government surveillance, and Internet freedom, then you should care about this case. Precedents set with the Silk Road trial could impact our freedoms going forward into the 21st Century. If not overturned on appeal, precedent set in this case could pave the way for new laws and interpretations that could impact the future and freedom of the Internet. Bad law could be ushered in that we will be forced to live with.As Gillespie concludes, this case “may well mark the beginning of a federal clampdown on the broad, governing spirit of the Internet that has made the online world an unrivaled experiment in innovation, freedom, and experiments in living.”
In addition, the Silk Road case is a major battle in the government’s failed War on Drugs. The draconian sentence intends to send a message that the government is doubling down on its destructive and wasteful campaign.
As attorney Scott Greenfield said in regard to this case: This is the birth of law as applied to our digital future. Watch it as a spectator at your peril.
- Basing a case almost exclusively on digital evidence — which by its nature is unreliable and impossible to authenticate — creates a dangerous precedent going forward. It drastically lowers the standard of proof, which makes it much easier to put people in prison. As Ross’ attorney said, digital evidence can be easily fabricated, manipulated, planted, edited, hacked, and modified.
- The fact that a web host has been convicted because of crimes committed on his site opens the door for criminal liability of web hosts and the potential erosion of a free Internet. Under present law, website hosts are not held responsible in civil cases for illegal actions on their sites. This case could set precedent that cracks open the door to criminal liability for web hosts.
- The 4th amendment requires warrants to describe particular items of a search. It forbids a general warrant – a free-for-all rummaging to see what you can find. This dates back to the American Revolution when the British inflicted this on the colonists. It helped spark the revolution and prompted the creation of the 4th amendment. Yet the warrants issued for Ross’ laptop, gmail and facebook accounts were these same type of general warrants. There were no limits on them. Instead the government went on a fishing expedition through his private data to find whatever they could. If they had done this in his desk drawers and file cabinets it would be clearly unconstitutional. With this case, the government is saying because it was his laptop, it doesn’t apply. Since most of our lives are on our laptops and phones now, this is an important issue going into the digital age.
- The 4th amendment question also extends to whether it’s legal for the government to search and seize a server without a warrant overseas, or even hack into it. They said that even if we “somehow” hacked into the server, it’s permissible, even though they put people in prison for doing the same thing. By its own admission, the FBI has no documentation of how they found the Silk Road server, which comprises much of their evidence. Without forensic documentation there is no guarantee that the evidence is valid or even that it wasn’t fabricated. The explanation of how the FBI found the server has been widely discredited by technical and security experts, one calling it “inconsistent with reality”; another “impossible“; and another a lie and gibberish.
- Ross’ political views were precluded from trial, presumably to obscure his libertarian, free market intent in creating the Silk Road site. However at sentencing the judge used these same beliefs and statements against Ross to bolster the draconian sentence. This is a First Amendment concern.
- The judge made it clear that her extremely harsh sentence was to serve as an example to others in the government’s 40-year, failed drug war. If allowed to stand, this sentence sets a precedent for future defendants.
- – To fight for the right to a fair trial, one of the bulwarks of our liberty.
- – To finance Ross’ appeal of the verdict and sentence.
- – To have precedents set in this case reversed.
- – To have Ross ultimately be a free man.
Despite our owing them a huge amount of money, Ross’ attorneys are not deserting him. They are preparing an appeal working to have Ross placed where he is in the least danger. But as always, we are up against the full force of the federal government. We are not the family of a wealthy kingpin. We own no bitcoin. There is no hidden wallet. We are regular people taking on a giant fight against a Goliath.