The Second Circuit Court of Appeals upheld the May 2015 conviction and sentencing of Ross Ulbricht, the founder and creator of the infamous darknet market SIlk Road. Ross is now appealing the Second Circuit Court’s ruling to the Supreme Court, the highest court in the United States.
According to Kannon K. Shanmugam, the lawyer behind the appeal, presented two questions in the memo. The first, “whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment,” questioned the use of the trap/trace devices and pen registers to collect internet traffic used to identify and gather evidence that connected Ulbricht to the pseudonym used by the admin of Silk Road, Dread Pirate Roberts.
Unlike searches of physical property in the United States, a person’s internet activity can be monitored without probable cause. As Shanmugam pointed out in the document, the government can secure an order authorizing the use of a trap and trace and a pen register by certifying that the “likely to be obtained” evidence would be relevant to an ongoing criminal investigation. The Federal Bureau of Investigation used several trap/trace orders and pen registers in the Ulbricht case, starting with a combination of the two (pen/trap) applied to a router in Ulbricht’s home in San Francisco, California.
The pen/trap on the router allowed the government to identify the devices connected to the router. It also allowed them to identify the type of internet traffic that travelled between the devices and the router. The FBI used that information to identify the MAC address of the laptop Ulbricht used on a routine basis. They secured another pen/trap order that authorized the monitoring of the laptop associated with the MAC address. They compared the laptop’s internet activity with the login/logout activity of Dread Pirate Roberts. After two weeks of comparing the internet traffic and Silk Road activity, the FBI applied for an arrest warrant and arrested Ulbricht at a public library.
The second question raised in the December memo, “whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence,” questioned the use of information not relevant to the drug charges in determining Ulbricht’s life sentence.
In the document, Shanmugam questioned the Second Circuit Court’s decision to uphold the life sentence, even though the sentence relied on the court’s findings that Ulbricht had commissioned several murders. None of the murders in question ever occured, and more importantly, the indictment included none of the allegedly commissioned murders. The court did not try Ulbricht for the alleged murders and the jury did not convict Ulbricht of the alleged murders. Yet, the court discussed the murders at length—a topic that influenced the sentence handed down by the judge during the May 2015 sentencing. The sentence’s fairness has been questioned by numerous judges.
Similarly, the six drug deaths that the court “in some way” connected to Silk Road helped justify the life sentence, yet the indictment included no charges related to the drug deaths and the jury made no convictions related to the drug deaths.
This petition for a writ of certiorari could change the way future courts handle certain Fourth and Sixth Amendment issues.