Vicarious Liability

Who’s responsible?

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 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. Joshua Dratel, his trial attorney, called this “unprecedented and extraordinarily expansive.”[1]

“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[2]—and the maximum sentence is 20 years imprisonment.”
– Joshua Dratel challenging Ross’s conviction.[3]

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.”[4]

This prediction came true when Reason.com was subpoenaed to turn over names of commenters who spoke out against Judge Forrest’s sentence.[5]

Read also Assault on Free Speech.

FedEx

The Silk Road case is not unique. For instance, in 2014, 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.[6] (And no, they have not indicted the U.S. Postal Service). Eventually the Department of Justice dropped the case.[7]

The long arm of the law

Opposing the defense’s motion to dismiss the indictment, the government stated, contrary to the Fifth Amendment: “The federal criminal laws are expansive and adaptable.”[8]

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.”[9] 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.

References