Silk Road

Carpenter Supreme Court Decision Should Lead To Rethinking Ross Ulbricht's Conviction

The government's prosecution of the Silk Road founder depended on a Fourth Amendment doctrine made questionable by Carpenter's new respect for the information accessible via modern technology.


The legal team for Ross Ulbricht, currently in jail for life without parole for crimes associated with the launching and operating of the darkweb site Silk Road, sees hope in a Supreme Court decision last week.

The Court decided in the landmark case Carpenter v. United States that law enforcement can no longer assume information voluntarily given to third parties—in that specific case, cell phone records—has no Fourth Amendment protection at all, as per earlier doctrine from the U.S. v. Miller (1976) and Smith v. Maryland (1979) cases.

As Damon Root reported at Reason, Chief Justice John Roberts' decision had him declaring the Supreme Court has officially "decline[d] to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection…Whether the Government employs its own surveillance technology…or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]."

This has huge implications for Ulbricht's still-pending petition to the Supreme Court to rehear his case, his lawyers assert in a supplementary brief they filed after the Carpenter decision came down.

As the brief from Ulbricht lawyer Kannon Shanmugam says, with Carpenter "the Court expressly rejected the government's 'primary contention that the third-party doctrine adopted by the Court in the context of telephone calls in Smith v. Maryland…should be applied to new categories of information made available by 'seismic shifts in digital technology." (Shanmugam, it should be noted, has a healthy record of successful Supreme Court appeals.)

That same thinking should affect how the Court judges the Fourth Amendment implications of the manner in which the government got information key to their conviction of Ulbricht, Shanmugam writes. The 2nd Circuit Court of Appeals, which upheld Ulbricht's conviction, "deemed itself 'bound' to apply Smith to modern technology absent this [Supreme] Court's intervention."

While Ulbricht's case involved computer records and not cell phone records specifically, Shanmugam believes that "in light of this Court's refusal to apply Smith in Carpenter, reconsideration of the Second Circuit's reasoning is plainly warranted. Accordingly, the Court should grant [Ulbricht's] petition for certiorari."

As Shanmugam explained in a still-pending cert petition to the Supreme Court, Ulbricht's case is "an appropriate companion case to Carpenter because the Internet traffic information at issue here is broader in important ways than the cell site location information at issue in Carpenter. In addition to allowing the government to determine when petitioner was accessing the Internet from the privacy of his own home, the information gathered by the pen/traps here permitted the government to determine the websites to which petitioner connected, the length of the connections, and the port of transmission of the data. As this Court has recognized, the collection of such Internet information could reveal 'an individual's private interests or concerns.'"

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  1. Only good for them to take it if Ulbricht wins.

    Then again, if it doesn’t get taken, it’s the same assumption made by law enforcement.

  2. According to “experts,” the US is apparently the #10 most dangerous country in the world for women (and #3 looking solely at sexual violence). There is no actual study involved, just a survey of “experts.”

    Apparently women are more safe in North Korea, Iran, Iraq, Sudan, and every country in Latin America from where thousands of women are currently fleeing to the US for safety.

    Who comes up with this shit?

    1. No offense to India, but they need to be way below the Democratic Republic of Congo. Last I looked last year, it had like 1/3 of it’s female population having been violently raped.

    2. Who comes up with this shit?

      Random people on Twitter.

    3. “Who comes up with this shit?”

      Experts, Goddammit. It’s right there in your own post.

  3. Also, the 2016 LP Presidential nomination runner-up (John McAfee in case anyone forgot) had this to say today:

    “Whale fucking. No joke. Each year, on Feb 1st, in the Molokai Channel, a few men compete in the world’s only whale fucking contest. Humpback whales are easy to fuck- for a second or less. World record: 31 seconds. I competed once. Almost got my ribs crushed. Stick with Ostriches.”

    1. McAfee 2020 – he loves to tackle the biggest challenges, and he’ll do it for America!

      ALTERNATE JOKE: McAfee 2020 – no problem is insurmountable.

      1. ALTERNATE ALTERNATE JOKE: Ever listen to the Songs of the Humpback Whale? You’d be making funny noises too if John McAfee were boning you.

        1. ALTERNATE ALTERNATE ALTERNATE JOKE: McAfee 2020 – he won’t force you to make a cake for his whale wedding ceremony.

          1. ^Eddie for the win!

          2. John is getting married?

          3. Supreme Court to rehear his case, his lawyers assert in a supplementary brief they filed after the Carpenter decision came down.

    2. My bad, I thought McAfee finished ahead of Petersen, which was not the case (though it was fairly close compared to the distance between them and Johnson) so this is actually the third placed guy.

    3. McAfee is the fucking best. There’s a reason he’s the President in another (better) dimension.

      1. Amen. Tell us about some of the things McAfee has done as President.

        1. As the bestest libertarian, it’s more impressive to list all the things he HASN’T done.

  4. Someone should tell Trump if he ever needs to stick it to Chuck Schumer, pardon Ulbricht.

    1. Ann Coulter said Mueller prosecuted Ulbricht. Very unfair.

  5. Shika Dalmia must be typing away furiously right about now.

    Oh, the venom she’s about to unleash!

    . . . on the Supreme Court, on the Constitution, on Trump, on all of us.

    I might actually read it just for that reason.

    1. Do you think she’ll mention that 95% of the world’s muslims are not affected by the ‘muslim ban’?

      1. No.

  6. wasn’t the problem though that they didn’t get a warrant ? if the prosecutor had gone to a judge who found probable cause then the cell phone records would have been admissible ? correct, or no ?

    1. I SFed the link.Let me try that again.

      1. TL;DR – Lefty imbecile rationalizes behavior he’d “REEE” about endlessly if the parties of the principals involved were reversed.

        1. Anybody defending this needs to get their humanity checked.

          Basically the best they can come up with is ‘Trump is an evil bastard who eats babies and SHS works for Trump ergo she deserves to be humiliated publicly’.

          In other words, as we’ve said many times before, they’re hypocritical retards.

          Worse, it sounds as though the ‘principled’ woman of the RH harassed SHS after she quietly left and went to a restaurant across the street.

          It had nothing to do with principles.

          1. Someone (Gosh, maybe me!) should create a script that takes a block of text as input and determines if the text was written by an insufferable douchebag. The criteria would need to be ironed out, but I could see it working well enough.
            Needless to say, most people who wrote for Gawker (like the author of Chipper’s linked article) are insufferable douchebags, and you don’t need a script to tell you that.

            1. Scocca may be an insufferable douchebag, for all I know, but this is a classic.

          2. Slightly OT, as I was reading Maxine Waters’s call out to form mobs and drive Republicans out of society, I had a vision of a large group of people gathering on someone’s front lawn, chanting for that family to get out, and maybe, just maybe, burning a cross for a little dramatic effect.

            In better news, Maxine has debunked:
            a. Safe Spaces
            b. Hate Speech

          3. Everything else being equal, I wonder what the Red Hen’s revenues will be 6 months from now.

            1. Ask that about Chick-fil-a. After a group publicly shamed and boycotted the restaurant, a counter-signaling group made it a point to storm the restaurant with orders for chicken sandwiches and waffle fries.

              In the end, I think Chick-fil-a is doing pretty well. They are the mascot for a certain group of people. I think the Red Hen will do similarly well, being the mascot for a different group of people.
              Heck, visiting arch-liberals may make it a point to make a pilgrimage to the Red Hen after visiting the Lincoln Memorial, the African American Museum, and similar sites.

  7. The Bethesda veteran [Todd Howard] was interviewed by a number of outlets during E3, and in one pre-E3 interview conducted before the game’s official reveal (via Noclip) he was asked about the game. His only response to its nature was that it’s “the biggest most epic science fiction thing you could possibly imagine.”

    Bethesda VP Pete Hines also sounded off in another interview (via Gamespot) with “It’s an incredibly ambitious project. That game is crazy. It’s ambitious and insane and awesome in all of best possible Bethesda Game Studios ways.”

    Are there still people who believe this man’s sugary lies?

    1. Whatever, get back to me when his eyes stop being so hypnotizing.

  8. Good luck to Ross. But it won’t happen. He’s not being punished because of the severity of the damage his ‘crimes’ caused but rather because he defied the system. He is an example and they won’t overturn it. No way.

  9. Is there a link to this guy’s canteen fund? I’d like to send him $20 for coffee and chips, hopefully he can sell it for a profit and become “prison rich”.

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