Judge Rejects Defense That FBI Illegally Hacked Silk Road—On a Technicality
But the Judge’s rejection of that argument comes down to what may be seen as a fateful technicality: she argues that even if the FBI did hack the Silk Road server, Ulbricht hadn’t sufficiently demonstrated that the server belonged to him, and thus can’t claim that his privacy rights were violated by its search. “Defendant has…brought what he must certainly understand is a fatally deficient motion to suppress [evidence],” the judge writes. “He has failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he has failed to submit anything establishing that he has a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized.”
That argument may seem like a Catch-22. If Ulbricht were to claim ownership of that server he might have incriminated himself. But Forrest writes that Ulbricht could have nonetheless claimed the server in a pre-trial statement that couldn’t be used against him as evidence. “Defendant could have established such a personal privacy interest by submitting a sworn statement that could not be offered against him at trial as evidence of his guilt (though it could be used to impeach him should he take the witness stand),” she writes. “Yet he has chosen not to do so.”
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Forrest’s decision follows a lengthy pre-trial debate that came to center around the mysterious events that led the FBI to Ulbricht’s alleged Icelandic server. In early August, Ulbricht’s defense lawyers filed a motion to suppress all the evidence in Ulbricht’s case that they argued had resulted from the potentially illegal search of the computer Ulbricht allegedly rented in a Reykjavik data center to host the Silk Road. If successful, the move would have likely made Ulbricht nearly impossible to convict on the central charges of narcotics and money-laundering conspiracy that he faces.
The prosecution, however, responded with an affidavit from the FBI that described how it found the Silk Road server. According to the bureau, an agent simply entered “miscellaneous characters” into its login screen until a misconfiguration in the anonymity software Tor leaked the site’s IP address.
