Defense lawyers for Ross Ulbricht — the alleged owner of the now-defunct Deep Web drug marketplace Silk Road — have filed a pretrial legal memo that claims the FBI violated his Fourth Amendment rights. If successful, the case could set a new precedent for how authorities search and seize in the digital world. But how likely is this to happen?
The memo, filed on Aug. 1 in the U.S. District Court for the Southern District of New York, takes a "kitchen sink approach," a legal strategy in which several arguments are made in hopes that one will stick. The biggest argument is the assertion that the Silk Road servers in Iceland were located using mysterious and possibly illegal means and, as such, evidence found during this search should be invalidated.
The location of the Silk Road servers was a big break for the authorities and has served as the linchpin for their case against Ulbricht. It yielded 14 search warrants that eventually led to the identity of the defendant.
"A definitive answer as to whether the government gained access to the Silk Road servers lawfully or unlawfully is not possible at this stage because the government has not disclosed how it located the Silk Road Servers," the memo states. "However, it is apparent that the government did not seek or obtain a warrant to acquire the (Electronically Stored Information) on those servers."
The memo cites a 2013 Reuters article that details how the NSA engages in a practice called "parallel construction" in which the agency provides "information about non-national security criminal activity" to other law enforcement agencies "sometimes without disclosing the origin of the information, and always with the condition that the NSA's involvement cannot be disclosed to defendants, their counsel, or even courts."
It's unclear how the courts will respond to the memo.
Fred H. Cate, a professor at Indiana University's Maurer School of Law who specializes in privacy and surveillance, believes the kitchen sink approach could be problematic. If successful, it could have serious implications for how the Fourth Amendment is applied in future cases involving computing devices and the data stored on them.
"The fact that they've thrown so many arguments suggests there's some basis for hesitance on the defense's side, but just because there's a lot doesn't mean that one of those arguments won't carry the day," he told Fusion via telephone.
Cate equated the strategy to a quarterback throwing a Hail Mary pass in the endzone. If a receiver catches the ball, it "would be a pretty bold statement for the Fourth Amendment."
Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation, argues that it makes sense for the defense to use their current strategy.
"I think people are so dismissive of the tactic and it's easy to be critical about it but when you're facing life in prison, it's what you have to do." he told Fusion via telephone. "You use this approach when you don't have all the facts, which appears to be the case in this situation."
Fakhoury also noted that there is some merit in Ulbricht's team suggesting that the NSA could have been involved.
"The government doesn't get the benefit of the doubt anymore," he said. "It is documented that there is a lot of sharing between the NSA and other enforcement agencies (including the DEA). If the government doesn't provide that information then what other logical conclusion can you come to? If it's so absurd and laughable, then they should explain the 'how' and the 'why.'"
Fidel Martinez is an editor at Fusion.net. He's also a Texas native and a lifelong El Tri fan.