Silk Road

FedEx on Trial Because It Supposedly Sometimes Sold Shipping Services to Illegal Pharmacies


Interesting story from CNN the other day that might make students of the government's Silk Road prosecution and conviction of Ross Ulbricht for supposedly creating and managing a website that facilitated the sale of drugs and other illegal things go "hmmm."

It's about a recent set of criminal charges against FedEx in:

15-count indictment filed in federal court in California [that] bristles with accusations of conspiracies, transporting prescription pharmaceuticals dispensed with illegal prescriptions, violations of the Controlled Substances Act, misbranding charges, and money laundering charges.

This raises a question, one many defenders of Ulbricht had in his trial:

should a courier service like FedEx be held liable for "possessing" what bad guys may send through the service?

The answer, according to FedEx, is not just "No," but a "No" so conclusive that this case should never see a courtroom. The company maintains that it is innocent.

The article discusses a "common carrier" exemption to certain possession laws, the basic notion that if they are in the business of shipping pretty much everything for pretty much everyone, they can't be expected to always know, or be liable for, certain illegal uses of their service.

Obviously, the Department of Justice disagrees, which is why it has brought this criminal prosecution.

According to the indictment, from at least as early as 2004, the Drug Enforcement Administration, the Food and Drug Administration, and members of Congress put FedEx on notice that illegal Internet pharmacies were using its shipping services to distribute controlled substances and prescription drugs in violation of the Controlled Substances Act, the Food, Drug, and Cosmetic Act, and numerous state laws.

The indictment alleges that as early as 2004, FedEx knew that it was delivering drugs to dealers and addicts. FedEx's couriers in Kentucky, Tennessee, and Virginia expressed safety concerns that were circulated to FedEx senior management. The DOJ is making the argument that even though FedEx carries and delivers whatever is handed to it by the public, FedEx knew or should have known in specific instances that it was involving itself in suspicious drug activity.

Doubtless the argument against Silk Road that would theoretically be stronger than the one against FedEx is that it was deliberately designed and mostly used to facilitate illegal activity, not merely doing so occasionally, inadvertently, and as an inescapable byproduct of being a common carrier.

It's also worth remembering Silk Road was merely facilitating the buying and selling, not even the shipping, which was often done by the U.S. Postal Service itself, not considered a suspect.

The article goes on to note that we don't see a lot of these criminal trials against prominent corporations because they almost always would rather go into settlement agreements than fight it out in court. It's always worth raising eyebrows at a situation where government can get much of what it wants from citizens or companies merely with threats, not with fair trials.

NEXT: Discrimination and the New 'Inclusive' America

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  1. What would Stitches say about this?

  2. In general, legal liability is the reason why I’m always doubtful about certain decisions businesses make that would be against their own profit-making interest, but may appear voluntary at the surface.

    Just the threat of liability and all the litigation that entails, or threats of Congressional hearings, potentially smeared reputations, would scare businesses into line, self-regulation, self-censoring or imposing burdens or restrictions on customers satisfactory to government bodies.

    which was often done by the U.S. Postal Service itself

    Is the DOJ going to file criminal charges against the USPS too?

    1. “Is the DOJ going to file criminal charges against the USPS too?”

      Exactly. I’d also like to know if the DOJ is recommending that I quit paying taxes, since I’m materially supporting cops who shoot people in the back and a military that is dropping bombs on innocent people.

  3. If someone comes up to you on the street and says “I’ll give you $20 to deliver this package to this dude” and it turns out to be drugs and you are stopped by a cop, would you expect to be charged? Of course.

    In this case though, they’ll simply cough up some money, which will probably be passed on to consumers…

    1. In FedEx’s case they already make you declare what’s inside and sign forms so it should’ve removed their liability. They just don’t open up your package and trust you.

  4. Curious how the Feds handle cases where drugs are sent through the USPS. Don’t know but since we are govt, doesn’t that mean we are liable?

    1. The USPS has special laws that make it an extra crime to use the USPS for illegal purposes. Fedex and other carriers have no such protection.

      This is the reason that drug dealers and scam artists prefer to ship via UPS or FedEx rather than the USPS.

      1. And also if you’re sending contraband, you kinda want to be sure it will actually be delivered to the destination.

  5. Looks to me like the DoJ is throwing a hissy fit because reality doesn’t match their wishes.

    I worked at FedEx for a number of years so I know that they willingly cooperate with law enforcement all the time. Pull requested shipments, shut down operations and let them run drug sniffing dogs walk through, just about anything they asked for.

    Sounds like the feds either got lazy and/or the smugglers got much smarter and, in their frustration, the DoJ is going after the only entity they can identify.

    1. My supposition is that this is related to “Operation Choke Point”, which targeted the banking industry to make life difficult for “undesirables” such as payday loan companies and porn stars. Although they sort of, kind of claimed that they ended the program earlier this year, the attitude and strategy of killing off undesirables by cutting off their access to services like banking and now shipping are certainly still a part of the government’s mindset, as these charges attest.

      Even the idea of going after the developers of an intermediary website like silk road is pretty shaky, by traditional standards. Would they have gone after the New York Times 30 years ago if someone put an advertisement for escort services in the paper? How about going after CBS for running an advertisement for “head on” homeopathic remedies? This new strategy allows them to cultivate a better society without having to do pesky things like actually making something illegal. That innocent people might have their lives wrecked along the way is really of no consequence in that vision of society.

  6. Similar case:…..52182.html

    Although the Union Pacific Railroad Company (UP) did not control the trains before their arrival at the U.S. border1 or even during the time CBP inspected the trains at the border, CBP imposed almost $38 million in penalties against UP?not Ferromex or KCSM

    UP is an Omaha, Nebraska, based common carrier with no railroad operations inside Mexico, no control over the Mexican railroads2 that bring trains to the U.S. border, no power to direct these Mexican railroads’ employees, and no legal authority to secure or search trains inside Mexico. Nor can UP search trains at the border before CBP conducts its inspection: CBP refuses to allow such searches by UP.

    At its own cost, UP has built numerous buildings for CBP’s use, including camera and inspection towers and an office building, and installed advanced screening machines at the border. UP was the first railroad to enter CBP’s “Land Border Carrier Initiative Program” and “Customs?Trade Partnership Against Terrorism,” and is also a member of various other partnerships between the federal government, state and local governments, and private transportation firms. UP has persuaded Ferromex to increase its security measures in Mexico, even though drug related safety concerns in Mexican border towns drastically limit Ferromex’s ability to protect U.S.-bound trains.

    1. CBP even fined UP $655,215 for an incident on March 30, 2004, in which UP itself, working with U.S. Immigration and Customs Enforcement (ICE) agents, found illegal drugs that CBP missed.

      1. corporations should learn from this that they gain nothing by collaborating

  7. I don’t get this at all.

    FedEx is not a law enforcement agency nor a criminal investigative agency.

    Long long before FedEx should ever be expected to know that some criminals were sending illegal drugs via their service, THE COPPERS SHOULD HAVE ALREADY TAKEN THESE BAD GUYS OUT OF BUSINESS.

    Jesus Christ, how fucking lazy is the DOJ?

  8. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is what- I do…… ??????

  9. Late last year, I went to FEDEX here in Mexico to mail a regular paper check to a New York tourist agent for a cruise. The clerk asked me if it was a check. I said yes. He said WE CANNOT SEND CHECKS TO THE USA!

    So I went to DHL, same story, but this time I answered “no, no check” and they said it would be $40 to send this piece of paper!

    So, I want to the regular Mexican post office, mailed the check by registered mail for $3–no problem. Capital Controls, or what???

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