Hey, non-US websites – FBI don't have to show you any stinkin' warrant
Prosecutors in Silk Road raid trial: If you're outside the US, you're fair game for hacking
US government attorneys have argued that the FBI didn't need a warrant to snoop evidence from the Silk Road darknet drugs souk, for a simple reason: its servers were located outside the United States.
Attorneys representing accused Silk Road headman Ross Ulbricht have suggested that the FBI used hacking techniques to pull data from the Silk Road servers without first obtaining a warrant, which they claim violated Ulbricht's Fourth Amendment right to privacy.
Because virtually all of the evidence the government plans to present at Ulbricht's trial was gathered as a direct result of an illegal infiltration of the Silk Road servers, Ulbricht's lawyers argue, most of the prosecutors' case should be inadmissible.
But in a new court filing on Monday, the prosecutors countered that this argument doesn't hold water, because the Silk Road server the FBI hacked was located not in the US, but in Iceland.
"Given that the [Silk Road] Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to 'hack' into it in order to search it," the filing bluntly states, "as any such 'hack' would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary."
And even if the server had been hosted in the US, the filing claims, it's up to Ulbricht to explain exactly how his Fourth Amendment rights had been violated. While his attorneys have tried to poke holes in the government's official account, claiming illegal methods must have been used, prosecutors say they have offered only speculation and not any factual evidence that would merit a hearing on the matter.
The government's lawyers also argue that Ulbricht had no "legitimate expectation of privacy" on the Silk Road server because its hosting provider warned in its terms of service that its systems were subject to monitoring for illicit use.
"Thus, even if Ulbricht were to establish that he had a possessory interest in the server, he still would not have had a legitimate expectation of privacy in it, given the patently illegal enterprise he was hosting on the server in clear violation of the provider's terms," the filing states.
Finally, in one of its more bizarre assertions, the government claims that investigators could tell that the server was hosting an illegal enterprise just by looking at the software running on it.
"Indeed, the fact that the [Silk Road] Server was running 'phpmyadmin' would have further corroborated that it was hosting Silk Road, since 'phpmyadmin' is used to administer PHP databases – which are commonly used to run online businesses – and Silk Road's reliance on PHP databases was readily observable from the website itself during the time of its operation," the attorneys write.
PHPMyAdmin is in fact a wildly popular web-based client that's used to manage MySQL databases, which are used not just in online businesses but in countless applications, web-based and otherwise. The PHPMyAdmin software itself has been downloaded from the SourceForge code-hosting site around 2.5 million times this year alone.
Based on these arguments, the government prosecutors have asked the court to dismiss Ulbricht's attorneys' motion to suppress the government's evidence in the case without a hearing.
Ulbricht's trial on drug trafficking charges is due to begin in New York next month, immediately after which he will be brought to trial again in Maryland on additional charges, including allegedly trying to hire contract killers to murder six people. ®
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