Silk Road Judge Won't Examine FBI's Warrantless Server Hacking; Dismisses Suppression Motion On 'Privacy Interest' Technicality
from the there-are-two-ways-you-can-read-the-phrase-'criminal-investigation' dept
Judge Katherine Forrest has shot down Ross Ulbricht’s defense team’s motion to suppress evidence it claims was acquired illegally by the FBI. The FBI asserted in its response to the motion that Ulbricht had expressed no privacy interest in the alleged Silk Road servers located in Iceland. The FBI further claimed that it needed no legal permission (i.e., a warrant) to hack foreign servers during criminal investigations.
Those hoping to hear an argument on the legal merits of the FBI’s claims will just have to keep hoping. As was noted earlier, the DOJ’s response put Ulbricht in an unenviable position: either claim the disputed servers as your own or kiss any hopes of suppressing evidence under Fourth Amendment claims goodbye. From Judge Forrest’s ruling [pdf link]:
Defendant has, however, brought what he must certainly understand is a fatally deficient motion to suppress. 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. Without this, he is in no different position than any third party would be vis-a-vis those items, and vis-a-vis the investigation that led U.S. law enforcement officers to Iceland in the first place.
To make this claim and secure the attendant privacy protections (or at least attempt to), Ulbricht would have needed to demonstrate to the court his interest in the Icelandic servers. Doing so would possibly result in him incriminating himself, which would rub up against the Fifth Amendment. Unfortunately, in all the paperwork filed disputing the FBI’s evidence and its questionable origins, the possible Fifth Amendment concerns were never raised. Judge Forrest points out one possible remedy, albeit one that seems to have passed its expiration date.
[D]efendant 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). Yet he has chosen not to do so.
In short, despite defendant’s assertions and the potential issues he and his counsel raise regarding the investigation that led to the Icelandic server, he has not provided the Court with the minimal legal basis necessary to pursue these assertions. Thus, the declaration submitted by Joshua J. Horowitz, Esq. (ECF No. 70) along with all the arguments regarding the investigation and the warrants based on it are not properly before this Court.
Further down in the ruling, Judge Forrest notes that the court will not be spending any more time trying to discern whether the FBI’s hacking of the alleged Silk Road servers falls within the bounds of legality. Again, this decision traces directly back to Ulbricht’s privacy interests in the servers themselves.
Here, the Court does not know whether Ulbricht made a tactical choice because he is-as they say-between a rock and a hard place, or because he truly has no personal privacy interest in the servers at issue. It is clear, however, that this Court may not proceed with a Fourth Amendment analysis in the absence of the requisite interest. If a third party leased a server on which the Government unlawfully intruded in the investigation that led to the Icelandic server, under Katz, Rakas, Payner, and a host of other case law, that is no basis for an assertion by Ulbricht that his Fourth Amendment rights were violated. Thus, whatever methods used-lawful or unlawful-are beyond this Court’s purview.
So, whatever the methods were — whether it was parallel construction used to cover up NSA involvement or the FBI declaring itself above the law when operating outside the US — the government is free to use them again and again until faced with a better legal challenge.