DOJ In Silk Road Case: The FBI Doesn't Need Warrants To Hack Foreign Servers
from the prosecuting-domestically-but-kicking-down-doors-all-over-the-world dept
The government has filed another document in response to discovery requests in the Ross Ulbricht/Silk Road case. Again, it argues that there’s no Fourth Amendment concerns here, so Ulbricht’s legal team isn’t entitled to receive any more information about how the FBI accessed the servers central to the government’s case.
Assistant US Attorney Serrin Turner, speaking for the DOJ, basically states that intelligence agencies can hack into foreign servers without obtaining a warrant. If Ulbricht can’t successfully argue that his rights were violated, then he can’t argue for the suppression of evidence, no matter how it was actually obtained.
The government’s arguments [pdf link] put Ulbricht in an uncomfortable position — explain why he has an interest in these servers or stop challenging the government’s submitted evidence.
[T]he burden is on Ulbricht to allege facts that, if proven, would establish a violation of his Fourth Amendment rights. The Horowitz Declaration manifestly fails to satisfy that burden. As a threshold matter, the declaration does not establish that Ulbricht had a reasonable expectation of privacy in the SR Server, as required for him to have standing to move for its suppression in the first place. Indeed, a declaration from a member of Ulbricht’s legal team such as Mr. Horowitz would be insufficient for this purpose anyway. To establish standing, a defendant must submit an “‘affidavit from someone with personal knowledge demonstrating sufficient facts to show that he had a legally cognizable privacy interest in the searched premises at the time of the search…’”
Ulbricht’s counsel would not have any personal knowledge of Ulbricht’s privacy interest in the SR Server; presumably, only Ulbricht would. Ulbricht’s assertion that he is not required to submit such an affidavit and that the issue of standing “must . . . be resolved through an evidentiary hearing,” (Reply Br. 18), is flatly wrong. Again, to merit a hearing, a defendant must first allege facts that, if proven at a hearing, would establish a violation of his personal Fourth Amendment rights – including facts sufficient to show the defendant had a protected privacy interest in the property searched. Without competently asserting such an interest, a defendant has no standing to bring a suppression motion at all, let alone demand a hearing on the motion.
Basically: admit the servers are yours and we can start discussing your Fourth Amendment rights. This is the DOJ asking Ulbricht to do its work for it. These servers are only allegedly Ulbricht’s at this point.
Then the DOJ’s lawyer moves on to say, “Actually, we don’t really care what you do or don’t assert. You have no Fourth Amendment rights to anything kept in that location.”
Even if Ulbricht were to demonstrate that he has standing, which he plainly has failed to do, the Horowitz Declaration still would not warrant a hearing because it fails to allege facts that, if proven, would establish a violation of Ulbricht’s Fourth Amendment rights. The Horowitz Declaration nowhere alleges that the SR Server was either located or searched in a manner that violated the Fourth Amendment. It merely critiques certain aspects of the Tarbell Declaration concerning how the SR Server was located. The Horowitz Declaration fails to allege any alternative explanation of how the SR Server was located that, if proven, would establish that Ulbricht’s Fourth Amendment rights were somehow violated.
Turner dismisses claims that the NSA was involved or that illegal wiretaps were used, simply stating that the government would have turned over the applicable evidence if these accusations were true. (Which is highly doubtful — especially in the NSA’s case — but theoretically true.) But then he goes on to say that even if hacking were involved, it simply doesn’t matter.
In any event, even if the FBI had somehow “hacked” into the SR Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment. Because the SR Server was located outside the United States, the Fourth Amendment would not have required a warrant to search the server, whether for its IP address or otherwise.
There’s the message the DOJ is sending, at least in this case: if anything of yours resides in a foreign country, all protections are waived. All the government needs is to prove is that its search was “reasonable” and prompted by “legitimate governmental interests” — not exactly the high bar the DOJ presents it as. Nothing is off-limits anywhere outside of this country. If the NSA hasn’t already hoovered it up, the FBI’s coming through the back door — not exactly heartening news for citizens whose everyday lives heavily with extraterritorial entities like Internet services and cloud storage.