Assault On Privacy

“Is it reasonable to say that the ordinary citizen ‘assumes the risk’ that their Internet browsing activity will be monitored by the government with a pen/trap device every time they log on to the Internet? The answer is plainly ‘No.'”
– Reason Foundation, CATO Institute, CEI, RSI in support of Ross’s Supreme Court petition.[1]

The government violated Ross’s privacy rights in several ways, setting legal precedent that is eroding what little protection we have left. In the digital age, nearly every aspect of our lives is recorded online. Whether the government can secretly gather that information without a warrant, and use it against you, was a question in Ross’s petition to the Supreme Court. The Court denied the petition.

Warrantless pen-traps

Starting with only his email address and without a warrant, the government used pen register and trap-and-trace devices (pen-traps) to locate Ross’s home and collect all the internet traffic information flowing through his router and laptop.

“While ostensibly a pen-trap reveals only identifying information, these pen-traps had an ulterior purpose: to track Ulbricht’s internet activity and his physical location in an effort to connect him with access to the administrative section of the Silk Road Servers at particular times on particular date.” 
– Joshua Dratel appealing Ross’s conviction.[2]

“The government’s warrantless collection of the IP addresses a citizen visits is analogous to a government agent peering through the window to monitor which books a person pulls from their shelf.” This “effectively gives the government a blank check to conduct a dragnet search of Internet activity.” 
– Reason Foundation, Cato Insitute, CEI, and R Street Institute in a brief in support of the Supreme Court petition.[3][4]

The government claims they can do this because of an outdated legal theory from the 1970’s called the Third-Party Doctrine.[5] This doctrine was born in the context of rotary telephone technology and established that the numbers you dial are not private because you voluntarily convey them to the telephone company (the third party).

Today, the same antiquated legal theory is applied to the vast amount of private information conveyed through third parties online. It permits the government to secretly seize an individual’s data with no oversight, just as they did to Ross.

“Blunt application of the third-party doctrine threatens to allow the government access to a staggering amount of information that surely must be protected under the Fourth Amendment.” 
– Chief Judge Martin quoted in a brief by the National Lawyers Guild and others in support of Ross’s Supreme Court petition.[6]

Unlimited warrants

Through its illegal pen-traps, the government was able to gather enough information to support warrants for Ross’s Gmail and Facebook accounts, and his laptop.

In violation of the Fourth Amendment, they used general warrants which lack specificity and permit unlimited rummaging through private information and property. General warrants were abhorred by the Framers of the Constitution, were the reason why they wrote the Fourth Amendment, and were a driving force behind the American Revolution.

“The warrants here represent the antithesis of “particularity” not only in execution, but also in design, language, and purpose.””Thus, the entirety of Ulbricht’s private “papers,” and more (i.e., his internet history, political or other associations) were expressly targeted by the government.”
– Joshua Dratel appealing Ross’s conviction.[7][8]

With virtually all of Ross’s digital information spanning his adult life, the government was able to pick and choose from it the data that supported its case. They attributed it all to him without verification and painted a picture of Ross in the minds of his jury at odds with who he really is.

References