Held Responsible for Others’ Actions

Ross was not accused of, or prosecuted for, actually selling illegal items, nor did he launder money or hack computers either (his charges listed and explained here). Rather, Ross was held responsible for what others listed and sold on the Silk Road platform. No one before him has ever been condemned to die in prison for this, let alone at such a young age.

Section 230: Protection for Online Providers

In 1996, Congress passed the Communications Decency Act to ensure a free-wheeling internet,[1] and protect providers of “interactive computer services” from “civil liability for the content posted by others.” According to Section 230 of this law, a provider must only show that “the information…was provided by a third-party” to qualify for immunity.[2]

Prior to Ross’s case, no internet content provider had been criminally charged for permitting content or hosting websites that tolerate, or even promote, illegal activity.[3]

Google is the most common defendant in lawsuits where Section 230 has been invoked, and other major ISPs, browsers and platforms (Craigslist, Amazon, Twitter, Facebook…) have also regularly availed themselves of this immunity.[4]

Thus, despite established laws protecting providers from liability for their users’ content, Ross was sentenced to two life sentences + 40 years not for selling illegal items himself, but for creating a platform where others ended up doing so. Joshua Dratel, his trial attorney, called this “unprecedented and extraordinarily expansive.”[5]

“The gulf between civil immunity enjoyed by all other internet providers and the criminal liability and potential punishment Mr. Ulbricht faces is incalculably vast.”
— Joshua Dratel, Criminal Defense Attorney.[6]

A Dangerous Precedent

Vicarious liability, or transferred intent, occurs when one person is held responsible for the actions of another. Ross’s prosecutors heavily relied on this by saying that Ross was responsible for users’ actions on the Silk Road platform, despite established laws protecting internet providers.

In a pre-trial motion to dismiss the indictment, the defense argued that Ross’s all non-violent charges could not be applied to Ross’s alleged conduct but rather that he operated a website through which other persons—sellers and purchasers—committed illegal activity.[7]

“Assuming his guilt…that he created an internet platform that enabled others to do so,…the proper analogy would be to a landlord who knowingly leases space and collects rent and utility payments from tenants whom he knows sell drugs from the premises (and even whom he markets to). There is a federal statute punishing that conduct—21 U.S.C. §856, the ‘crack house’ law[8]—and the maximum sentence is 20 years imprisonment.”
— Joshua Dratel, Criminal Defense Attorney.[9]

Impact on Free Speech

Alistair Charlton wrote in International Business Times:

“If Ulbricht is found guilty based on the actions of the users of Silk Road, this sets a precedent which could see online retailers like eBay responsible for everything its users sell… a shift towards webmasters being criminally responsible for user comments, threats and hate speech appearing on their sites…could have far-reaching consequences. Dragging the implications up from the dark web and into the regular, Google-searchable internet, a guilty verdict could lead to a shakeup in how anonymity is used—and how free speech is protected—online.” [10]

This prediction came true in 2015 when Reason.com was subpoenaed to turn over names of commenters who spoke out against Ross’s judge after sentencing.[11]

References