Silk Road

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

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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.