Ross Ulbricht Calls for New Trial, Alleging Feds Hacked Tor
wired.comUnfortunately, this doesn't change anything. But for the record, let's just review a few facts:
1 - Ulbricht has never asserted the server belonged to him, as such, he has no assumption of privacy for whatever is on the servers. He could have claimed the servers belonged to him in order to challenge the search, which his legal team opted not to do.
2 - By running a site which engages in criminal activity (legally speaking of course) he violated the 3rd paty hosting companies terms of service, which invalidates his right to privacy for anything located on said server.
3 - Since the site was trafficking drugs (which is defined as criminal activity) the hacking of the site would still be legal since the FBI doesn't need warrants for such a search:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...
The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 264-275.
Pretty sure this request will be denied since his legal team didn't assert the information on the server belonged to him in the first place, regardless if the FBI hacked it or not.
Original, on Reddit: https://www.reddit.com/r/DarkNetMarkets/comments/2y9q55/fbi_...
No one's quite sure why the FBI would be logging exit node traffic in an investigation aimed at the SR1 hidden service.
It doesn't seem so likely that the Fourth Amendment would protect information sent into Tor.
I mean, I have only a very basic understanding of it and still understand that exit nodes will have a lot of visibility into traffic, so I had better consider that before sending data over Tor. They've even made PSAs about this (I looked it up just now):
https://blog.torproject.org/blog/plaintext-over-tor-still-pl...
hidden service connections are end-to-end encrypted. Also, there is no exit node in a hidden service circuit. I think it makes more sense that they're in fact referring to a guard node, like another comment has pointed out.
I think a similar argument would apply, that a reasonably informed user would understand that some metadata will be shared with (components of) the Tor network (I think this is a reasonable description of what controlling a guard node gains the FBI).
I understand why the FBI would need a warrant to capture traffic on some node owned by someone else. I don't see what would stop them from logging data from nodes that they placed on the network. Running a DOS is sketchier, but they do actually have some authority to not obey the law.
(please everybody try to separate the reality that they do have this authority from arguments about whether they should.)
edit: I fixed "Tor" in this comment and the one above, thanks to RemoteWorker.
> the TOR network
You mean the Tor network.
re: exit node, this comment might explain it: https://www.reddit.com/r/DarkNetMarkets/comments/2y9q55/fbi_...
Seems plausible to me.
Most attorneys find it is more effective to present evidence during a trial than after their client has been convicted.
Post-trial motions are a standard part of trial practice. For example, a lawyer might argue that the evidence presented at trial was insufficient to support the jury's verdict. In fact, some of these arguments are waived on appeal if not made in a post-trial motion.
I'm not at all surprised about post-trial motions. What surprises me is attempting to introduce "fresh evidence" (as it is called in the article) in a post-trial motion immediately after their client is convicted.
In fact, some of these arguments are waived on appeal if not made in a post-trial motion.
What you're saying is accurate but it's not the point. They are basing their new argument on "fresh evidence". To be successful, an appeal must be based on a legal argument and not on new evidence.
Source: http://www.americanbar.org/groups/public_education/resources...
The appeals courts do not usually consider new witnesses or new evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure or errors in the judge's interpretation of the law.
>" They are basing their new argument on "fresh evidence". To be successful, an appeal must be based on a legal argument and not on new evidence.
You are confusing an appeal with a motion for a new trial. New evidence cannot be heard by any federal appellate court. However, a motion for a new trial (which is what they filed here) is filed with the district court that heard the case, and can include new evidence as a basis for the motion.
Were this not possible, all of those people you hear about that are freed based on new DNA evidence, witnesses that admit to lying after trial, etc. would simply rot in prison. In fact, new evidence is one of the most common reasons for requesting a new trial.
You are confusing an appeal with a motion for a new trial
I must have worded it poorly because you are confusing two different points that I made. The first point was:
Most attorneys find it is more effective to present evidence during a trial than after their client has been convicted.
Hopefully you don't find fault with that statement.
The second point I was making was in response to rayiner stating that arguments can be waived on appeal if not made in a post-trial motion. That is not directly applicable here because the argument in the post-trial motion is based on supposedly new evidence which is not applicable to an appeal.
Regardless, their client would have had a better chance if they made the argument in trial than in a post-trial motion.
This is a filing under Federal Rule of Criminal Procedure 33: https://www.law.cornell.edu/rules/frcrmp/rule_33.
I'm not sure about the exact contours of "new evidence" but you're right that if all the evidence was available before trial that'll weigh against him. But as you can see from the wording of the rule, there's enough discretion invested in the trial judge there that it's certainly worth a shot.
> Records of the investigation that were made available to > Ulbricht only just before his trial in January ... show > thatIf the opposing side dumps new information on you right before trial (as frequently happens), it is your responsibility to make a motion that you be allowed additional time to review it.
If you made such a motion and the judge denied it, then that becomes the basis of an appeal in that the judge erred by not allowing the extra time. On the other hand, if you never made such an argument and then try to introduce new evidence in a post-trial motion or appeal, you will not be very successful.
I am not a lawyer, but I read the filing and none of this seems related to his guilt or innocence. Rather, it seems to argue that law enforcement violated his rights and that prosecution evidence should not have been admitted.
That's related to guilt in the American system. Evidence obtained illegally can't be used to convict. This is also why parallel construction wrong - it illegally routes around this concept.
Is Ulbricht now going to claim that the server did belong to him?
"prosecutors first responded that a misconfiguration of the site’s CAPTCHA had leaked its IP address when FBI investigators typed some “miscellaneous” characters into entry fields on the site’s homepage"
Yea right? Tor was hacked, or was finally given the backdoor key by the NSA? I imagine the NSA held off for years, but finally knew the FBI would never stop the site--so they reluctantly helped out the FBI? I do wonder why the CIA didn't just assassinate Ross? (Personally, I think it was a mistake to let Terrorists question the security of TOR?)