Feds: If FBI Conducted Warrantless Hack of Silk Road, It Was Legal Because Servers Were Foreign

Ross Ulbricht, allegedly “Dread Pirate Roberts”
who made a billion-dollar black market bazaar out of Silk Road
(SR), is set to stand trial in a month for
narcotics trafficking and related charges. His lawyers are
currently duking it out with the Department of Justice in pre-trial
motions about how the government found Ulbricht.

Because SR existed in the deep web and was accessible only
through the anonymizing Tor browser, Ulbricht’s attorneys say that
in order to find SR’s servers, the FBI must have hacked Ulbricht
and conducted a warrantless search, thus violating the man’s Fourth
Amendment rights.

Assistant U.S. Attorney Serrin Turner filed a motion for the
prosecution
saying that if the FBI did hack – and he’s not saying they did
– but if they did, it was legal, because the servers were in
Iceland:

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.

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.

Turner’s statements come in response to defense lawyer and tech
specialist Joshua Horowitz who in a court filing last week
stated that the “explanation of how the FBI discovered the
server’s IP address is implausible” and that their apparent
“failure to preserve packet logs,” or bundles of relevant
data, “recorded while investigating the Silk Road servers would
defy the most basic principles of forensic investigative
techniques.”

Wired points
out that Turner doesn’t “directly contest Horowitz’s
description of the FBI’s investigation. … Instead, [he] obliquely
argue that the foreign location of the site’s server and its
reputation as a criminal haven mean that Ulbricht’s Fourth
Amendment protections against unreasonable searches don’t
apply.”

The government
claims it discovered the servers’ locations because of an
improperly configured CAPCHTA (one of those “prove you’re human”
garbled typing tests). Several Internet security experts, like
Brian Krebs of Krebs on Security, Nicholas Weaver of Berkeley’s
International Computer Science Institute, and Robert Graham of
Errata Security have
said that the FBI’s story is
full of technical holes. 

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Silk Road 2.0, other Internet
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