Vicarious liability, or transferred intent, occurs when one person is held responsible for the actions of another. The government heavily relied on this by saying that a website host is responsible for the activities 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 these things.
Essentially, Ross was condemned to two life sentences + 40 years for creating a platform, not for actually selling a product — for creating innovation that, as the prosecution said, “facilitated criminal actions.” Joshua Dratel, his trial attorney, called this “unprecedented and extraordinarily expansive.”
“Even assuming his guilt (for purposes of sentencing) that he created an internet platform that enabled others to do so, and thus, 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 – and the maximum sentence is 20 years imprisonment.“ – Appeal , page 138.
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 long arm of the law
Opposing the defense’s motions, the government states, contrary to the Fifth 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.