The Supreme Court

On December 22, 2017, Ross and his legal team at Williams & Connolly, led by Kannon Shanmugam, filed a Petition for Writ of Certiorari [PDF] to the Supreme Court, asking the Court to review and reconsider the lower court’s decision, based on constitutional violations in the investigation and at sentencing.

The petition argued that Ross’s case presents two important questions of constitutional law, and has broad significance impacting both Fourth and Sixth Amendment protections:

  • Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.
  • Whether the Sixth Amendment permits judges, rather than juries, to use uncharged crimes to support an otherwise unreasonable sentence.

On February 5, 2018, twenty-one organizations from across the political spectrum filed five amicus briefs in support of the Supreme Court petition.

Full list of amici:

  • American Black Cross
  • American Conservative Union Foundation Center for Criminal Justice Reform
  • Cato Institute
  • Competitive Enterprise Institute
  • Conservative Legal Defense and Education Fund
  • Downsize DC Foundation
  • Drug Policy Alliance
  • FreedomWorks
  • Gun Owners Foundation
  • Gun Owners of America
  • Human Rights Defense Center
  • Judge Nancy Gertner
  • Law Enforcement Action Partnership
  • National Coalition to Protect Civil Freedoms
  • National Lawyers Guild
  • Partnership for Civil Justice Fund
  • People’s Law Office
  • Reason Foundation
  • R Street Institute
  • Restoring Liberty Action Committee National
After holding the petition, presumably pending another important Fourth Amendment case, Carpenter v. U.S., the Court eventually declined to hear Ross’s case on June 28, 2018.

This denial was a blow to internet privacy and fair trials.

“The Court’s denial of Ross’s petition is a blow to privacy rights and protections. While Carpenter establishes that the government must obtain a warrant to search our cell phone records, Ross’s case is much more far reaching. With this ruling, the Court continues to permit the government to secretly track our internet browsing history and activity with no warrant, oversight or probable cause. Internet activity offers up a wide range of personal and relevant information. Surely it is in the spirit of the Fourth Amendment that obtaining and using this information should, at the least, require a warrant. The order puts all our privacy in peril and bolsters the surveillance state.”
– Lyn Ulbricht

Highlights from the Petition and amicus briefs

“A young first-time offender who was never charged with causing any death or bodily injury… A high-profile criminal prosecution that heaped intense scrutiny and pressure on the sentencing judge, resulting in a sentence of life imprisonment without parole for a first-time offender.”
– Petition for Writ of Certiorari.[1]

“In this case, without a warrant or probable cause, the government seized petitioner’s private Internet traffic information and used that information to arrest and convict him of drug trafficking and related offenses. The district court then sentenced petitioner to life imprisonment without the possibility of parole—a sentence almost unheard of for a first-time offender charged with the offenses at issue. The district court imposed that sentence by resolving several disputed issues of fact; absent those judge found facts, petitioner’s sentence would have been unreasonable.”
– Petition for Writ of Certiorari.[2]

Fourth Amendment issue

“On its face, this is a Fourth Amendment case questioning the government’s ability to seize people’s data. Not deep beneath the surface, however, this case concerns the government’s power to uncover First Amendment-secured associations that it could never demand people disclose.”
– American Black Cross.[3]

“The question here is this: 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.'”
– Cato, Reason, CEI, R Street Institute.[4]

“A search or seizure of an American’s Internet Traffic Information intrudes on private digital equivalents of papers and effects, reveals extensive information about Internet usage, and should be fully protected by the Fourth Amendment.”
– Downsize DC and five other signers.[5]

More info at Assault On Privacy.

Sixth Amendment issue

“Petitioner’s sentence was based on judicial fact-finding that the defendant commissioned murders, even though he was never charged with any form of homicide or planning homicide and there were no relevant jury findings.
– National Lawyers Guild and seven other signers.[6]

“Given petitioner’s youth and absence of criminal history, the life sentence is particularly shocking. Absent the judicially found facts in this case, petitioner’s sentence would have been reversible error.”
– Drug Policy Alliance & Law Enforcement Action Partnership.[8]

“The government only charged petitioner with drug-related offenses at trial, yet after the jury was discharged the government sought to convince the judge that petitioner distributed a total quantity of drugs far in excess of the amount found by the jury, that he could be held responsible for six alleged overdose deaths, and that he committed other uncharged misconduct. The district court accepted the government’s claims – despite serious factual disputes over the reliability of that evidence – and imposed a sentence that would have been substantively unreasonable based on the facts found by the jury.”
– Drug Policy Alliance & Law Enforcement Action Partnership.[7]

“Given the nature and complexity of those issues—allegations including overdose deaths and drug quantities—it is far from clear that petitioner should be held responsible…He has the right to have a jury of his peers decide.”
– Drug Policy Alliance & Law Enforcement Action Partnership.[9]

“The prosecutor was allowed to game the system by avoiding charging the deaths claimed, yet then using those claimed crimes at sentencing as though they had been facts found by a jury … However, the district court certainly sentenced Ulbricht as though he had caused those deaths.
– Downsize DC Foundation and five other signers.[10]

More info at Sentenced for Uncharged Allegations.