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.'"