Game Day For Ross Ulbricht and The New Frontier

Posted by: Allen Hoffmann, JD

January 13, 2015

More articles about the Silk road trial at this tag: #SilkRoadTrial

Today’s the day the Dark Market community has been waiting for, for some time. The full weight of the federal evidence gather apparatus and prosecutorial machine has been brought to bear on a man who, it is alleged, dared to bite his thumb at the system, and with motions to suppress being refused and serious time on the table for a conviction, rest assured – its going to get ugly.

Ross William Ulbricht, supposedly the driving force behind the groundbreaking TOR marketplace of Silk Road, will face trial in a Manhattan court after last ditch attempts by defense counsel to get the “fake murder” evidence thrown out failed. With Ulbricht looking down the barrel of a life sentence at worst, and the very real likelihood of considerable time behind bars on an array of charges stemming from his alleged role as being at the helm of the first truly mainstream darkmarket at the very least should he be convicted, the stakes are high. It’s likely to be a pitched battle, fought on the very frontier of the libertarian, digital age, where computer facilitated crime is no longer a seedy underbelly inhabited by just fraudsters and child pornographers, but is becoming astonishingly eclectic, mainstream and a source of choice sellers and buyers of nefarious commodities the world over – and, accordingly, the whole world is watching.

Since his arrest in the first week of October, 2013, it’s a case that the digital underground has watched closely, and has also managed to catch the mainstream media’s attention – the outlandish quantities of money alleged to be involved, the ‘high tech’ aspects, the tantalizing details of an apparently educated, intelligent ‘mastermind’ figure who openly courted the mainstream financial media using his alias, and apparently discussed economic theory while he was addressing his myriad followers, were enough to sell papers to those who still bought them. There’s no doubting it, from a legal perspective, from a media perspective, and from an internet crime perspective, we’re all watching new ground being broken before our very eyes as this prosecution gets under way.

As for the alleged perpetrator himself – some emphatically protest Ulbricht’s innocence, others have instead elected to concede that perhaps he was the fabled DPR, or Dread Pirate Roberts, and that rather than being innocent, he is not as morally culpable as the US Government is seeking to make him. I’ve read, in detail, the documents which LE has thus far made public in relation to their investigation, case, and rebuttals as regards Ulbricht. He’s facing an uphill battle to secure a straight acquittal, but the vast amount of contentious tech matters to be disposed of during the trial may see him get off on a technicality.

Speaking of those – the technicalities have flowed thick and fast in the lead up to the trial date, and it’s a mark of counsel committed to what they are doing that the assault on the Government’s evidence has been both robust and unrelenting. Back in September of 2014, fourth amendment arguments over whether or not the FBI had a warrant to get at the SR1 server, supposedly stored in Iceland, did not go Ulbricht’s way, partially because its not yet a live issue as to whether or not the server was, in fact, his – a matter which, I would suggest, is likely to see substantial agitation on appeal should it get that far. The manner in which the FBI has rather weakly sought to explain locating the server has been attacked openly in the computer security arena as a cheap, ill-conceived ploy intended to cover up the true, possibly illegal, methodology suspected of having been used – and to be honest, considering the battle that the FBI had to endure to build their case, nothing would surprise me in the least if it were to transpire that they are seeking to keep their methods under wraps for now. All told, it was but a small component of the (exceptionally well researched and formulated) 58 page document countering Ulbricht’s attempts at having a vast tranche of circumstantially inculpatory evidence suppressed – and was an indication, even then, that both the prosecution and the defense would be leaving absolutely no stone unturned in what is shaping up to be a trial canvassing issues of the contextually novel digital currency and ‘dark markets’, which will be fought tooth and nail under the harsh glare of an international media spotlight.

Interestingly, the number of murders for hire which are going to be on the table in court has grown from the 2 disclosed in criminal complaints and related Government document, to 6 – it will be interesting to see what comes of those four fresh allegations. I have written before on how pivotal the ‘pretend murders’ attributed to orders issued by Ulbricht as DPR would have been to boosting resources and prioritizing of the DPR investigation during the pre arrest phase, and even of my suspicions that more than the one ‘pretend murder’ acknowledged as being orchestrated by LE were part of a wider evidence gouging strategy. A different pretrial ploy, that of arguing that Ulbricht merely provided the marketplace, rather than engaged in a conspiracy, has also been cast aside by Judge Katherine Forrest, and will have to be run before the jury, if it is run at all.

How, indeed, will the Government run its case? They’ll be bringing their A game, but how will they approach it? Will the ‘altoid’ evidence be led as the foundation of their case? How will the jury perceive the circumstantial evidence of temporal and physical proximity of Ulbricht to SR server logins? How about the ‘frosty’ email addresses? Will the jury hear about the fake ids from Canada? Will the mysterious ‘employee’ who cooperated with LE to stage his own gruesome torture and death, be taking the stand? Only time will tell – and that time is now upon us.

As of now, it is up to a jury of his peers to convict or acquit Ulbricht on the laundry list of allegations charged, barring a last minute plea deal, which seems progressively less likely as the hours tick by – the incentives on offer to plead out are, in my experience and in light of the gravity of allegations against Ulbricht, unlikely to be remarkably attractive at the eleventh hour.

Trial by jury is supposed to see one face a jury of 12 of one’s peers, but this jury is not one which will truly be composed of Ross Ulbricht’s peers. They’re every day people, unlikely to have the technical knowledge requisite to follow aspects of the Government’s forensic case without it being broken down in to bite-sized chunks by the prosecution, or to grasp the wider implications of exactly what their vote in the jury room is likely to mean for the investigative tactics used now and in the future by the Government, for those who use dark markets as buyers, sellers or proprietors, or for the critics and adherents alike of cryptocurrencies the world over. It’s a brave new world, and this is the first wholesale clash between government and rebel (if, and that’s if, Ulbricht is DPR) we’ll have the chance to witness in our lifetimes.

The prosecution will play dirty through the use of its very questionably obtained evidence, and the defense will attack every single opening they are given. Its going to be intense. To say that much more than Ross Ulbricht foreseeable future is soon to be in the hands of those jurors, whether they realize it or not, would be the understatement of the year. Let’s hope they get it right.

Indictment:

Poking Holes in the FBI Story:

Updated: 2015-01-13