Proving yet again that the USA does not give a damn about violating the rights of non-US citizens, or of having courtesy of asking other governments before it hacks into servers sitting on foreign soil, the US government has declared in a new legal filling (.pdf) that,
‘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.’
The statement was made by Assistant US Attorney Serrin Turner in the ongoing prosecution of Ross Ulbricht. Ulbricht is accused of being Silk Road creator and operator ‘Dread Pirate Roberts’, but the case has run into trouble following the defence’s claim that the ‘explanation of how the FBI discovered the [Silk Road] server’s IP address is implausible [.pdf].”
Nicholas Weaver, a University of California, Berkeley, computer scientist who analyzed traffic logs the government submitted as part of the case, confirmed that the FBI’s case is tenuous,
‘Thus, the leaky CAPTCHA story is full of holes.’
Since it seems that a leaky CAPTCHA was not the means used by the FBI to obtain the Silk Road’s IP address and locate its servers (as the FBI claims), the question then remains, how it did obtain this information? If this was done illegally, then the case against Ulbricht is likely to collapse, and Ulbricht could walk free.
If the FBI hacked into servers on US soil then it would be a violation of the Constitution’s Fourth Amendment, which prohibits ‘unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.’ This is why Turner is keen to claim that hacking into foreign servers is fair game, since they have no constitutional protection,
‘Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to ‘hack’ into it in order to search it, 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.’
These powers are effectively sanctioned by the Foreign Intelligence Surveillance Act (FISA). However, the United States Foreign Intelligence Surveillance Court of Review,in its 2008 In re Directives decision declared that,
‘A foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.’
It is extremely doubtful that the FBI can claim taking down the Silk Road was matter of national security!
Furthermore, if the FBI did not know the location of the Silk Road server before hacking into it, how could it have known the server was not located inside the US (and therefore hacking into it would be in violation of the Fourth Amendment)?
We also doubt that most sovereign governments would consider hacking servers located in their countries ‘legal’ (at least without asking permission).
As usual, the FBI court filing shows both the hubris of the US government, which does not give a damn about violating the law when it comes to other countries (and has a pretty slapdash attitude even to US law).
We look forward to seeing how the case against Ross Ulbricht pans out…