Vicarious Liability

Responsible for Others’ Actions

Vicarious liability, or transferred intent, occurs when one person is held responsible for the actions of another. The prosecution heavily relied on this by saying that Ross was responsible for users’ actions on the Silk Road platform.

This was the despite the fact that 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 service 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 drugs, hacking software or fake IDs,* but for creating a platform where others ended up doing so. Joshua Dratel, his trial attorney, called this “unprecedented and extraordinarily expansive.”[5]

With the lack of a single prosecution of a provider hosting allegedly illegal conduct, Ross’s case constituted arbitrary and discriminatory enforcement.

“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 challenging Ross’s conviction.[6]

“Even assuming his guilt (for purposes of sentencing) 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[7]—and the maximum sentence is 20 years imprisonment.”
— Joshua Dratel challenging Ross’s sentence.[8]

*Note: Ross was also charged with “money laundering conspiracy” because Silk Road acted as a platform for sales of cash, gold, and other money. Ross was never found guilty of laundering money himself.

The Long Arm of the Law

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.[9]

Opposing the defense’s motion, the prosecution stated, contrary to the Fifth Amendment: “The federal criminal laws are expansive and adaptable.”[10]

The prosecution also said in its reply to the defense that, “The arm of the law…is far longer than Ulbricht imagines it to be.”[11]

Condemning Ross to die in prison using vicarious liability sets the dangerous precedent that, according to the government, we are to be held responsible for the actions of others.

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.”[12]

This prediction came true when was subpoenaed to turn over names of commenters who spoke out against the judge’s sentence.[13]

Read also Assault on Free Speech.