What the motions reveal, perhaps more so than any case that’s come before it, is the inadequacy of existing law to understand, define or stay apace with technology. – Scott H. Greenfield, Criminal Defense Attorney
Ross Ulbricht’s attorney, Joshua Dratel, recently filed 50 pages of pre-trial motions detailing why the court should dismiss the Indictment against Ulbricht in the Silk Road Case. With these incisive, thoroughly documented motions, Dratel not only powerfully defends his client, but the constitutional rights of us all. If the government can misapply the law against Ulbricht, it can do it to any of us. This case is not just about one individual. Rather it addresses the uncharted application of the law, and our rights and constitutional protections. This case will set precedent for the 21st Century and pave the way for new laws and interpretations that could impact the future of the Internet, our First Amendment rights and the protection of citizens from an overreaching government.
One of the Indictment’s many flaws is that it does not charge Ulbricht with actually committing the alleged crimes, but of hosting an Internet platform — a consumer directed marketplace — where others did. The motions state that making Ulbricht responsible for the conduct and intent of others is “unprecedented and extraordinarily expansive.” Prior to this, no Internet service provider, search engine or browser has ever been criminally charged for hosting websites that allow, or even promote, illegal activity. According to the motions, this includes those that have provided the very same “platform” Ulbricht is alleged to have provided.
The motions cite the Communications Decency Act, §230(c), passed by Congress, which says a web host is not a publisher, and therefore not responsible for actions on its website. For example, is Craigslist responsible for the murders or prostitution occurring through the site? Can Google be charged with terrorism because of jihadist recruitment on Google? Can eBay be held liable for stolen goods sold there? The law says no, it can’t. The intention of §230(c) is to support a free Internet by protecting providers from civil liability for what happens on their sites. This includes ISPs that take an active — or even aggressive — role in making content available. The point is not to protect illegal activity, but to safeguard Internet freedom, entrepreneurship and commerce, as well as the First Amendment, our precious freedom of speech. Ultimately, it is to keep the Internet the great, free-wheeling phenomenon that we all enjoy, where ISPs can host sites without fear.
Search engines and ISPs are fully aware that the Internet contains illegal content and activity– whether child pornography; narcotics trafficking; pirated copyrighted works; radicalizing terrorist materials; bomb building instructions–as well as a wide range of predatory activity. These and much more all exist without the host being prosecuted for any of it. However, if a precedent is set with this case, a wide array of web hosts and ISPs could be held liable for conduct on their websites. If convicted, Ulbricht would be denied the protections of §230(c) in a criminal case – where his liberty is at stake. Yet he would remain immune from civil suit for the same conduct! According to Dratel, this inconsistency creates a “dangerous anomaly in which ISPs and other web hosts could face greater exposure in criminal cases than civil suits.” If this happens, a chill on free expression seems inevitable. How could it not pressure CEOs of Internet providers to censor activity and content on their sites to avoid criminal prosecution? Wouldn’t it be prudent for Google to institute policies controlling content to avoid liability? This could open the door to censure and erosion of a free Internet. It would undermine the economic, cultural and intellectual benefits that a free Internet provides.
Moreover, considering the lack of a single criminal prosecution of a search engine, ISP, or browser for hosting websites that involve illegal conduct, the motions assert that criminally convicting Ulbricht would constitute “arbitrary and discriminatory enforcement.” As the motions state: “The gulf between civil immunity enjoyed by all other Internet providers and the criminal liability and potential punishment Mr. Ulbricht faces is incalculably vast.” Yet as Americans are we not guaranteed equal protection under the law?
We are also entitled to specific, factual charges, not vague, general ones. As the motions point out, “Counts One, Two and Three do not state an offense under the specific statutes underlying each count.” For example, Count Two refers to a “series of violations” without naming a single one, even though it alleges there are potentially hundreds of thousands. Not specifically naming essential elements of a charge is prohibited by the Fifth and Sixth Amendments to the US Constitution’s Bill of Rights, the safeguard of our free society. This is to protect us from the government amending an Indictment with substitutions and additions at will, thus creating a moving target, impossible to defend against. The Second Circuit Court states: “The indictment must state some fact specific enough to describe a particular criminal act, rather than a type of crime.”
Consequently, general charges like “kingpin” cannot simply be thrown at someone. Specific acts must be identified and match what the law describes. Called the “void-for-vagueness” doctrine, the US Supreme Court called this requirement “the first essential of due process of law.” This Indictment clearly demonstrates how essential this protection is.
Following is a brief summary of the responses to the counts of the Indictment. They demonstrate how the law is being misapplied. For many more details, arguments and references, please read the Motions.
Clarification: the motions challenge the indictment itself, and whether or not the law is properly and constitutionally applied. They do NOT address the substance of the charge, the facts relating to them or Ulbricht’s guilt or innocence. The alleged criminal activity is only nominally attributed to Ulbricht for the sake of argument. This does not in any way constitute an admission with respect to any allegation in the Indictment.
- Count One: Conspiracy to Distribute and Possess with Intent to Distribute Controlled Substances, in violation of 21 U.S.C. §846. This statute does not address Ulbricht’s alleged conduct. He is not alleged to have possessed or sold drugs, but to have operated a site where they were bought and sold by others.
- Count Two: The Continuing Criminal Enterprise (CCE) under Section 848(a). Historically this has been reserved for “kingpins,” mafia bosses, cartel leaders and upper supervisory personnel directly involved in illegal drug sales. No one allegedly operating a website serving as a “platform” for illegal activity has ever been prosecuted under §848(a). The Indictment does not allege that Ulbricht supervised, organized, or managed any of the “users” who were buying and selling illicit goods and services, only that he was the owner/operator of the site. At worst it says that Ulbricht allegedly acted as a facilitator by providing a platform, but never as a”kingpin” or leader of a continuing criminal enterprise.
- Count Three: The Computer Hacking Conspiracy in violation of the Computer Fraud and Abuse Act (CFAA) 18 U.S.C. §1030(a)(2)(C). This utterly fails to connect Ulbricht to the unauthorized access to any computer. It only alleges that Silk Road “provided a platform for buying and selling malicious software.” Someone selling software that might be used illegally does not transfer that person’s intent to the site’s host. Establishing a violation of 18 U.S.C. §1030(a)(2)(C) requires “proof that the defendant intentionallyaccessed information from a protected computer without authorization.” This count does not accomplish that, or even allege knowledge of a conspiracy.
- Count Four: Participation in a Money Laundering Conspiracy in violation of 18 U.S.C. §1956(h). In order to violate this law funds, or a monetary instrument, must be involved. The IRS and the Dept. of Treasury’s Financial Crimes Enforcement Network (FinCEN) formally confirmed that Bitcoins, the exclusive means of payment on Silk Road, do not qualify as a monetary instrument. FinCEN states that virtual currency “operates like a currency in some environments, but does not have all the attributes of real currency.” And “virtual currency does not have legal tender status in any jurisdiction.” Therefore, not being real currency, Bitcoins cannot serve as the basis for a money laundering violation.
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