When challenged by Ross Ulbricht’s defense about how it found the Silk Road server, the government submitted ex-FBI agent Christopher Tarbell’s explanation (sworn under oath under penalty of perjury). To a technically clueless person like myself it sounded, well, technical. However, to scores of experts it seemed dubious and the internet buzzed with skepticism. A cry of “no way!” went out, with adjectives ranging from “vague,” to “impossible.” Tech and security experts weighed in with criticism, as well as scores of commentators, including one claiming to be the Silk Road 2 administrator.
Well-known and highly regarded security specialist Nik Cubrilovic wrote a thorough analysis of the FBI explanation. He even set up a virtual machine simulating their claims and challenges: If you still believe that the server was discovered in the way the FBI described it –try it. I did. He concludes: their description of “packet sniffing” for the IP through a “leak” is impossible.
Robert Graham, a top cyber security expert, tweeted in a conversation with attorney Scott Greenfield: As a top expert in my field, I know that the IP address of Silk Road would never appear in packet headers as the FBI claims. When asked if the FBI claims are lies, he replied: they are technically inaccurate and confusing… my personal belief is that they are lying.
Last week (perhaps in response to this outcry?) the government provided further explanation. Again, their story is implausible. The server configurations, coupled with other factors, still negate the government’s claims.
In addition, astonishingly and inexplicably, Tarbell kept NO RECORD of his means of access to the servers! This is a routine, automated task. By not documenting his procedure, he violated the most fundamental protocols of any forensic investigation, much less one of this magnitude involving digital data and communications. Joshua Dratel, Ross’ attorney commented: “Thus, as we’ve heard so often the past 15 years, the government’s response is ‘trust us,’ without any corroboration or verification for its assertions.”
In addition to the Silk Road server issue, the government defends its warrants to search the entirety Ross’s laptop, Facebook and Google accounts, without limitation. However, it fails to even mention a decade of Supreme Court decisions that have consistently protected digital data, both stored and communicated, as strongly as any other material. The court has clearly adapted Fourth Amendment search and seizure law to the digital era, ruling that we don’t surrender our right to privacy just because we use laptops and cell phones instead of letters and landlines.
“Thus, the government would keep the evolution of legal doctrine stalled in 1979 while ignoring more than three decades of constitutional jurisprudence that has gradually, but surely, recognized that a person’s legitimate expectation of privacy has been changed by technology and its impact on social mores,” Dratel says.
He adds that the government’s failure to address these significant cases demonstrates that it does not have an answer for them, and that it cannot defend its warrants.
And no wonder. These warrants are replicas of the general warrants detested by our founders when imposed by the British Crown. This abuse inspired the American Revolution, and formed the foundation of the Fourth Amendment. By implementing such warrants in this case, the prosecution is violating one of the most fundamental rights of an American. This is a threat to us all.