The crucial Fourth Amendment is on trial in the Silk Road case, along with Ross Ulbricht. As we careen into the digital age and technology gains more power to intrude, Fourth Amendment privacy protections are ever more important. The Framers considered them vital to a free society. In fact, a major impetus of the American Revolution was rebellion against the type of general warrants used in this case.
Recent rulings of the US Supreme Court recognize the importance of the Fourth Amendment going into the 21st Century (Riley v. California, US v. Jones, US v. Davis). These decisions establish that digital property deserves the same Constitutional protections as physical property.
Joshua Dratel, Ulbricht’s attorney, submitted 90 pages of motions asserting, among other things, that investigative methods used in this case violate these protections. The motions address many essential issues, some summarized below. Read the complete Memo of Law here.
(As with previous motions, these do not address Ulbricht’s innocence or guilt. This is addressed at trial and must be proven, beyond a reasonable doubt, to a jury).
– Fourth Amendment: Searches and Seizures
- The government has not disclosed how it located the Silk Road servers, leading to the question of parallel construction and NSA involvement. In order for Ulbricht to have a proper defense, the government must reveal how it gathered information. Otherwise it cannot be determined if Fourth Amendment rights have been violated.
- Information obtained through unlawful searches/seizures violates the Fourth Amendment and ESI statutes (Electronically Stored Information). Present here are unlawful warrants and lack of warrants (including for the Silk Road servers).
- The fruit of the poisonous tree doctrine applies to the entire investigation. It says that if the source (tree) of material is contaminated by illegal methods, then anything gained (fruit) is inadmissible. “The Fourth Amendment and relevant statutes require suppression of the fruits of the searches and seizures and any evidence or other information derived therefrom,” the motions assert.
- The warrants fail to satisfy the Fourth Amendment’s “particularity” requirement that demands that items to be searched/seized are specified in the warrant and confined to those items that meet probable cause.
Instead they are general warrants that lack specificity and allow unlimited rummaging into private information and property. This kind of fishing expedition was abhorred by the Framers. The particularity requirement was designed to prevent such intrusive, unlimited searches.
– First Amendment
The government explicitly concentrates on Ulbricht’s political/economic associations, and other constitutional rights such as travel, without demonstration of probable cause. This substantially compromises First Amendment freedoms.
Justice Sotomayor warned of this in her concurrence in US v. Jones: “[a]wareness that the Government may be watching chills associational and expressive freedoms.”
– Specific Information Required
In addition to the warrants, the Indictment also lacks specificity. It speaks only in broad, undefined terms and sweeping generalities that expand the allegations, potentially misleading a jury. For example:
Re: locations: “across the world” (where?); “a number of countries” (which?); ”locations all over the world,” (which?); “elsewhere” (where’s that?).
Re: individuals: “others known and unknown”; “among others”; “users across the world”; “several thousand drug dealers”; “paid employees.” (Who?)
Re: Amounts: “hundreds of kilograms“; “well over a hundred thousand buyers worldwide”; “hundreds of millions of dollars”; “commissions“; “private financial gain.” (Exactly how many, how much?)
Vague Phrases: “other illicit goods and services” (which?); “alleged felonies” (which?); “assistance” (type?); “aspects of Silk Road” (what?); “controlled substances” (which?); “illicit sale” (Of what? Date? Time? Location?); “pursued” (how? when?); “violent means” (which, when?); “malicious software” (which?); “communication facility” (description?); “information” (precise nature of?); “commercial advantage” (what?); “illegal commerce conducted on the site” (what?).
A defendant cannot have an effective defense or fair trial without specific information. He must know the exact charges against him and have enough time to identify and locate witnesses and conduct a meaningful investigation of the allegations. The Fifth Amendment says: Not specifically naming essential and specific elements of a charge is prohibited. The Sixth Amendment agrees: Charges must be clear and specific.
The defense tried to resolve this in advance by requesting a Bill of Particulars as required by Local Criminal Rule 16.1. The government dismissed this with an email saying “the defense has all the particulars they need.”
– The courts agree
Repeatedly, the courts uphold the Fourth Amendment and emphasize that its specific requirements are a vital shield against an overreaching government, especially as we make law for the digital age.
The Court in United States v. Galpin: “a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth amendment irrelevant.”
US v. Burgess: “If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment’s particularity requirement.”
The Magistrate Judge in the case of Skype email accounts noted: “a warrant must describe the things to be seized with sufficiently precise language so that it informs the officers how to separate the items that are properly subject to seizure from those that are irrelevant.”
Sixty years ago Justice Douglas, in a prescient statement, summed up what we have to lose:
“[t]he time may come when no one can be sure whether his words
are being recorded for use at some future time; when everyone will
fear that his most secret thoughts are no longer his own, but belong
to the Government; when the most confidential and intimate
conversations are always open to eager, prying ears. When that
time comes, privacy, and with it liberty, will be gone. If a man’s
privacy can be invaded at will, who can say he is free? If his every
word is taken down and evaluated, or if he is afraid every word
may be, who can say he enjoys freedom of speech? If his every
association is known and recorded, if the conversations with his
associates are purloined, who can say he enjoys freedom of
association? When such conditions obtain, our citizens will be
afraid to utter any but the safest and most orthodox thoughts; afraid
to associate with any but the most acceptable people. Freedom as
the Constitution envisages it will have vanished.