Deep Web Page #7

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in Iceland and imaged them.

They copied all the data off

of them, and seized them,

but we don't know how

they found those servers.

The whole idea of... of

the Silk Road was that it ran

as a Tor-hidden service, which means

that Tor protected its physical location

and made it very difficult to locate

the computers that ran it.

So the mystery of how the FBI,

or the DEA, or possibly the NSA,

located those servers is still

unsolved and, in fact,

hasn't been mentioned in

any of the legal documents

surrounding

Ross Ulbricht's trial.

I think his defense has seized

on this as something

that the government

doesn't want to talk about.

And if that's the case,

then it does raise these

Fourth Amendment issues

of... of can the government

use essentially

hacking techniques

to dig up evidence on

a criminal suspect?

And if so, what kinds

of warrant do they need?

If in fact there was some kind of

violation of the Fourth Amendment,

in that initial part

of the investigation,

that really was the first

clue that lead them

down this entire chain to the

arrest of Ross Ulbricht, it could be

a giant problem for the prosecution

that then taints every other piece

of evidence that they

found subsequently.

The government has

prosecuted other people

for doing essentially what the

government did here, which is...

trying to get underneath

the public face of a website.

And they have alleged that

getting that information

that's not supposed to

be publicly accessible

by sophisticated computer,

uh, inquiries or activities,

uh, that that is a...

a violation of federal law.

And that's why they always say,

we didn't do anything wrong,

we didn't do anything

in violation,

but they really know what's

stake here, because they've

actually prosecuted people

for the same thing.

And the government's affidavit,

the affidavit from Agent Tarbell

about how they got to

the Silk Road servers

has been met with incredulousness

by the internet community.

The Tarbell declaration,

to put it politely,

seems vaguely disconnected

from the truth.

If you... depending on which

security expert you ask,

you will get it's vaguely

disconnected to the truth

to something filled with...

it is a massive pile

of bovine excrement.

What Tarbell's story was is he

was typing away at his computer,

visiting the

Silk Road website

and the CAPTCHA was

transmitted in the clear,

and he somehow saw the IP packets

go directly to the server.

And so he then connects to that

server and gets the CAPTCHA.

Game over, they found

the backend server.

Unfortunately, this was playing

fast and loose with the truth.

Because the logs provided

to the defense show that

what Tarbell found was

not the CAPTCHA image,

but instead a

php MyAdmin page.

The server was running some stuff

over the clear, but not the CAPTCHA.

So Tarbell's story doesn't mesh

with the FBI's own evidence.

They hacked the servers

and with that access

could essentially do

whatever they wanted.

Given just the institutional pressure to...

to take this thing down,

it's naive to think

that they didn't.

Of course it's on the table that

this is how they discovered him.

I mean he was dealing with Tor.

He was dealing with all these technologies

which we know are the subject

of NSA investigations,

as revealed by Edward Snowden.

It's at least reasonable to

assume that there's been

this kind of parallel

construction or interference

or like not playing by the rules that the

state deals out for you to play with.

But then again, we all know

that it deals the cards.

Uh, it... it runs the game anyway.

It's... it's not even...

It's naive to think that this

wasn't an available option.

The issue is whether the agent could

have done what he said he did.

The theory that's been brought

forward in a testimony

by the individual

agents that did it,

they were able to manipulate

part of the server

to cough up an address that

shouldn't have been given up

and that address came

back to Iceland.

And that server there was hosting

the Silk Road hidden service.

I think we're not gonna

know till we go to trial

and we may never

know for sure.

There's always this balance of,

uh, trying to be

forward leaning in your investigative

techniques and making sure that you don't

trample on rights

at the same time.

You wanna stay well within the

bounds of your legal authority,

because if you step

over the line,

the evidence is gonna be tossed.

It's not gonna be admissible in court

and you may wind up, uh, jeopardizing

the outcome of an entire investigation.

And so I think what agencies

will try and do is they'll,

want to step right

up to the line,

and maybe get a little bit of chalk on

their toes, but don't step over it.

Ross' lawyer made a motion

to dismiss the case based on the disputed

seizure of the Silk Road servers,

arguing that admitting this

material not only violates

his client's Fourth Amendment rights,

but would set a dangerous precedent

for the rights to privacy

of all citizens.

The judge, Katherine Forest,

sided with the prosecution

stating that the Tarbell

declaration was acceptable.

And the motion was denied.

Search and seizure law

in the digital age

is really, uh, doesn't have

the limitations on it that,

um, it does in

the physical space.

And um, we see it not only in

the search and seizure laws,

like what is the standard upon which

they can come and grab your computer?

Um, what kind of searches can they do

on your computer once they have it?

Do they just get everything?

We see this at the border.

Or we see this at searches into arrests.

People now carry around smart phones

that have their whole

lives in them.

And if they get stopped,

law enforcement is...

is certainly right now in a lot

of places taking the position

that absolutely anything

that's connected,

that's on that device, including

logging into your accounts

that you can log into from

that device, is fair game.

If the prosecution gets away

with this warrantless seizure

of Americans' data as well as

all these other foreigners,

it could have a lasting

precedent for how

the Fourth Amendment works

in the digital age.

I think that that, in fact, may be the

most lasting effect of the Silk Road.

Generally, what happens

in the criminal law field

is that there's a... some case

of... of major proportion

that is used as a means

of changing rules,

or expanding exceptions to

constitutional protections,

and once it's there,

once the precedent is set,

it then trickles down very

quickly and very easily

into all sorts of ordinary cases where,

you know, the ends justify the means.

- Then all of a sudden, it's now spread.

- The average citizen may say,

"Well, why is this important to me?

"Why do I care?

"I'm not buying drugs

on the network.

Nobody I know is buying drugs on the

network". But it's not just about that.

We're a democracy and

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