Assault On Privacy

“It seems unthinkable to me that there was not an intelligence angle internationally that was involved in that case.”
– Edward Snowden on Silk Road, 2016

This is one of the primary arguments in the Supreme Court petition [PDF].

The Fourth Amendment

The Fourth Amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”
 

Search & Seizure in the digital age

What kind of searches can the government make on your computer or your phone? Should they require warrants and probable cause? Should they be protected by the Fourth Amendment as equivalent to “papers and effects”? What tracking devices should be allowed without a warrant? These are vital questions for the digital age, being decided in the courts right now. People have their lives on computers and phones. Yet, with the Silk Road case, the government says digital evidence is fair game and is not protected under the Fourth Amendment.

Illegal warrants

Law enforcement did not use legal warrants to search and seize Ross’s laptop, Gmail and Facebook accounts, as explained in the appeal [PDF] and the amicus brief [PDF] submitted by the National Assn. of Criminal Defense Lawyers. Instead, in violation of the 4th amendment, the government used general warrants which lack specificity and permit unlimited rummaging through private information and property. It is a fishing expedition to see what can be found. This is the type of warrant abhorred by the Framers; was a driving force behind the American Revolution; and why they wrote the Fourth Amendment.

If the government had done this in Ross’s house, desk or file cabinet it would be inarguably unconstitutional. Yet because the material seized was digital and not “papers,” in Ross’s digital house, the prosecution maintains that it was not protected. They are essentially declaring, and setting precedent, that the Fourth Amendment is obsolete in the digital age.

Warrantless Pen-traps

Starting with only his email address, the government used pen-traps to seize Ross’s email traffic, find out where he lives, and collect all of his internet traffic information flowing through his home router and laptop.

The appeal also says that the pen register and trap-and- trace orders (pen-traps) used in the investigation violated the Fourth Amendment because, rather than by a warrant based on probable cause, they were implemented by court order. In other words, they had no warrant at all.

“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,” – The appeal [pdf], page 110.

“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.”
-Reason Foundation, Cato Insitute, CEI, and R Street Institute in a brief [PDF] in support of the Supreme Court petition, page 22

That purpose extends well beyond what is permissible for a pen-trap.