Vicarious liability or transferred intent occurs when one person is held responsible for the actions of another. The government relied very heavily on it by saying that a website host is responsible for the activity of site users. Nearly all the charges against Ross are based on this theory. Ross is not accused of selling drugs himself; hacking into computers; laundering money; or selling fake IDs. He’s accused of creating and running a website that allowed others to do this.
Essentially, Ross was condemned to two life sentences for creating a platform, not for actually selling a product; for creating innovation that, as the prosecution said, “facilitated criminal actions.” His trial attorney called this “unprecedented and extraordinarily expansive.”
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, such as in forums and the comment sections of news sites and YouTube videos, 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.”
This prediction came true when reason.com was subpoenaed to turn over names of commenters who spoke out against Judge Forrest’s sentence.
The Silk Road case is not unique. For instance, the government criminally indicted Federal Express for drug trafficking and money laundering under the same theory – holding it responsible for customers transporting illegal pharmaceuticals through their service. (And no, they have not indicted the U.S. Postal Service). Eventually the government dropped the case.
The long arm of the law
Opposing the defense’s motions, the government states, in opposition to the 5th Amendment: “Federal Laws are expansive and adaptable.”
The government also said in its reply to the defense that, “The arm of the law is far longer than Ulbricht imagines it to be.” Vicarious liability is one of the means the government uses to grow that arm and expand that power.
Convicting Ross using vicarious liability sets the precedent that, according to the government, we are to be held responsible for the actions of others.