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Silk Road Lawyers Poke Holes In FBI's Story

Posted by Soulskill on from the we-knew-to-look-there-because-we-knew-to-look-there dept.

wiredog points out an article from Brian Krebs about the court proceedings against Ross Ulbricht for his involvement in Silk Road, the online drug marketplace that was shut down (at least temporarily) by law enforcement last year. Ulbricht's lawyers have demanded information from the FBI in the course of discovery, and the documents provided by the government don't seem to confirm the FBI's story. For starters, the defense asked the government for the name of the software that FBI agents used to record evidence of the CAPTCHA traffic that allegedly leaked from the Silk Road servers. The government essentially responded (PDF) that it could not comply with that request because the FBI maintained no records of its own access, meaning that the only record of their activity is in the logs of the seized Silk Road servers. ... The FBI claims that it found the Silk Road server by examining plain text Internet traffic to and from the Silk Road CAPTCHA, and that it visited the address using a regular browser and received the CAPTCHA page. But Weaver says the traffic logs from the Silk Road server (PDF) that also were released by the government this week tell a different story. ... “What happened is they contacted that IP directly and got a PHPMyAdmin configuration page.” See this PDF file for a look at that PHPMyAdmin page. Here is the PHPMyAdmin server configuration.

56 of 191 comments (clear)

  1. Perjury by MacDork · · Score: 5, Funny

    So does this mean they go to jail for perjury?

    1. Re:Perjury by i+kan+reed · · Score: 3, Informative

      No. Perjury is saying demonstrably false things in court. Failing to provide evidence for your points is merely a justification for acquittal.

    2. Re:Perjury by Virtucon · · Score: 5, Insightful

      No, they're the government's witness. If agents committed perjury themselves on the stand that's a different matter. That's why we have judges and ultimately they can exclude testimony/evidence based on the credibility of the witnesses or evidence that they affirm is true. What frosts my cornflakes is that the Prosecutors have a conflict of interest here in seizing and selling assets that were DPR's, the bitcoins, before the trial even commenced. The proceeds of which wound up in the government coffers supporting the prosecution. That alone should have been prohibited by the judge in the case so it remains to be seen how these holes in the evidence trail will be handled. IMO this guy is still fucked.

      --
      Harrison's Postulate - "For every action there is an equal and opposite criticism"
    3. Re:Perjury by spiritplumber · · Score: 4, Informative

      Perjury is saying false things INTENTIONALLY while under oath in court. If I am called to the witness stand and say that to the best of my knowledge the guy accused of scamming really IS a Nigerian princess, and I genuinely do believe that, it doesn't make me guilty of perjury, it just makes me a very derpy individual.

      --
      Liberty - Security - Laziness - Pick any two.
    4. Re:Perjury by i+kan+reed · · Score: 2

      Yeah, sorry. That's even more accurate, but what's relevant in this case is that it has to be provable(like any other criminal charge).

    5. Re:Perjury by kelemvor4 · · Score: 5, Insightful

      So does this mean they go to jail for perjury?

      That's not how it works in America. Only citizens take that risk of actually being punished for a crime. Government agencies are free to do what they want.

    6. Re:Perjury by msauve · · Score: 4, Insightful

      Failing in your parallel construction, and telling the court you discovered evidence in a way you couldn't have, seems to me to be perjury.

      --
      "National Security is the chief cause of national insecurity." - Celine's First Law
    7. Re:Perjury by Virtucon · · Score: 5, Insightful

      Yes but there still has to be the right to defend yourself. If you take away the means by which I can pay lawyers, my funds, then I can't get the best legal representation. Therefore the prosecution is already convicting you before the trial even commences. This was already addressed by SCOTUS earlier this year and it's sad that it went the way it did. It's supposed to be innocent until proven guilty and I could see seizing them after trial but not before or at least the judge allowing the guy to pay for his defense. In this case the judge already allowed the bitcoins to be auctioned but there's the sense here of convicting before any adjudication has actually been done. That really needs to be fixed in the legal system.

      --
      Harrison's Postulate - "For every action there is an equal and opposite criticism"
    8. Re:Perjury by jythie · · Score: 3, Interesting

      On (C) at least, I think the frustration is they seized and liquidated the evidence before the case is settled. It is part of a larger problem with law enforcement lately where police can bring charges against the assets themselves and keep them. In some regions it is a serious money maker to the point finding too much cash in a random traffic stop funds the department.

    9. Re:Perjury by ray-auch · · Score: 5, Insightful

      C. Like it or not, the bitcoins represent evidence. Seizing evidence is par for course in any criminal case.

      Is selling the evidence off before the trial (which it was seized to be used in) also par for the course ?
      What happens to seized evidence after a not-guilty verdict - or do certain people already know that is not a possibility ?

    10. Re:Perjury by Gr8Apes · · Score: 3, Interesting

      C. Like it or not, the bitcoins represent evidence. Seizing evidence is par for course in any criminal case.

      Seizing evidence is one thing, seizing evidence and selling it for money is perfectly legal, after the trial, conviction, etc. Doing so before trial is an entirely different thing, and will probably lead to some problems down the road, especially if DPR is not convicted. At that point, it's going to be a very very interesting case.

      --
      The cesspool just got a check and balance.
    11. Re:Perjury by suutar · · Score: 3, Informative

      So this is part of a collective hallucination?

    12. Re:Perjury by arth1 · · Score: 3, Insightful

      He was fucked the moment law enforcement decided that he was a bad guy.

      Keep in mind that the law enfarcement deciding that someone is a bad guy doesn't imply that he isn't a bad guy.

    13. Re:Perjury by TheCarp · · Score: 3, Informative

      Actually, this is the US, the selling of the evidence and even its seizure is independent of the trial, in fact, it would be handled in a seperate civil trial under a much more leniant standard of evidence, allowing for all of his assets to be seized and kept EVEN IF HIS TRIAL RETURNS A NOT-GUILTY VERDICT.

      He can actually be found not-guilty, let free, and they still get to keep his stuff.

      --
      "I opened my eyes, and everything went dark again"
    14. Re:Perjury by Uberbah · · Score: 2

      Perjury is saying demonstrably false things in court relevant to the case at hand. If the prosecutor asks you if you watch porn while prosecuting you for marijuana possession, it's not perjury if you lie because it's not relevant.

    15. Re:Perjury by canadiannomad · · Score: 4, Insightful

      Actually, this is the US, the selling of the evidence and even its seizure is independent of the trial, in fact, it would be handled in a seperate civil trial under a much more leniant standard of evidence, allowing for all of his assets to be seized and kept EVEN IF HIS TRIAL RETURNS A NOT-GUILTY VERDICT.

      He can actually be found not-guilty, let free, and they still get to keep his stuff.

      I just want to be put on the record saying: "That is completely insane."

      --
      Hmm, the humour and sarcasm seem to have been be lost on you.
    16. Re:Perjury by Wycliffe · · Score: 4, Insightful

      Failing in your parallel construction, and telling the court you discovered evidence in a way you couldn't have, seems to me to be perjury.

      Not admitting to parallel construction under oath is perjury. You're just stating how you get caught. The act of parallel construction
      is "almost" lying and denying it under oath is definitely lying. The only way to prevent perjury with parallel construction is to make
      sure that the people who know about the parallel construction don't ever testify. One way to do this is with anonymous tips which
      at least gives plausible deniability but unless the new investigation is unaware of the previous investigation then there are still
      people who know about the parallel construction. It would be interesting for lawyers to start calling the primary investigators to
      the stand at every trial and asking the simple question "are you aware of any parallel construction?" Basically force investigators
      to give up the practice, admit to it, or commit perjury.

    17. Re:Perjury by Terry+Pearson · · Score: 2

      It is part of a larger problem with law enforcement lately where police can bring charges against the assets themselves and keep them...

      Just to add to your statement to help clarify what is happening... I believe the RICO laws passed many years ago (1960's) were basically designed to drain the funds of mobsters so they could not higher big name lawyers to defend themselves. The promise at the time was that this would only be used for mafia like criminals. People agreed because the mafia was the "bad guy" and needed to be stopped at all costs.

      The statutes use some legal tricks to define an inanimate object (currency) as a "person" or entity. Then they charge the entity with a crime. The targeted mobster, smuggler, etc. would then not be able to sue because they lack "standing". This basically means that they cannot sue to receive their money back because the money is the victim (because it was redefined as a person) instead of the accused being the victim. A person cannot sue if they do not have an interest in the offense (i.e. being a victim). Therefore, they have created a wall of red tape and legal definitions that allow them to take the resources from the accused and deny recourse to get them back.

      Police departments got greedy and prosecutors wanted a shortcut to get tough on crime, so they started doing the same to those with drug offenses and other crimes. It is much easier to prosecute when the defendant is stripped of methods of defending themselves.

      As a side benefit, that dealer's Ferrari looks pretty good parked next to the other squad cars.

    18. Re:Perjury by BringsApples · · Score: 2

      That would be the case if the FBI was manned by one person, and that person told a judge, "I discovered evidence..." and then later was exposed to be a lie. But since FBI agent #1 does some work, FBI #2 other work, they manage to get what they think (probably due to misunderstanding how things work on the web) is valid discovery, they go to FBI #3 who then tells the judge, "We discovered..."

      To steal a funny word from spiritplumber, it just makes them derpy people.

      --
      Politics; n. : A religion whereby man is god.
    19. Re:Perjury by Chas · · Score: 4, Insightful

      He was fucked the moment law enforcement decided that he was a bad guy.

      Keep in mind that the law enfarcement deciding that someone is a bad guy doesn't imply that he isn't a bad guy.

      Once law enforcement labels you a "bad guy" nowadays, the difference between being mislabeled and actually BEING a bad guy is pretty much academic. They're going to do their absolute best (and worst) to fuck your life up as much as possible.

      --


      Chas - The one, the only.
      THANK GOD!!!
    20. Re:Perjury by FlyHelicopters · · Score: 3, Insightful

      I just want to be put on the record saying: "That is completely insane."

      Yes, it is... We have a rather broken legal system in the US because of this and many things like it...

      Sadly, too many people are blind to it because it doesn't affect them in their day to day lives...

    21. Re:Perjury by PRMan · · Score: 2

      Actually, they sold the Silk Road money-laundered (mixed) bitcoins which nobody (even DPR) would claim, since that would be an easy admission to felony money laundering. Since they were unclaimed, they were sold.

      DPR's PERSONAL bitcoins have still not been sold.

      --
      Peter predicted that you would "deliberately forget" creation 2000 years ago...
    22. Re:Perjury by ShanghaiBill · · Score: 5, Insightful

      Perjury is saying false things INTENTIONALLY while under oath in court.

      Nitpick: Even that is not necessarily perjury. To be guilty of perjury, you not only have to intentionally lie under oath, but you have to lie about something of material significance to the case. For instance, if you lie about having sex with an intern during a deposition about an allegedly corrupt real estate deal in Arkansas, that is not perjury if the intern had nothing whatsoever to do with the real estate transactions.

    23. Re:Perjury by PRMan · · Score: 3, Informative

      Again, it was the unclaimed money-laundered Silk Road bitcoins which were sold (which, if claimed by anyone, would be an admission of a felony since it's well-known that they are mixed with drug money). DPR's bitcoins have not yet been sold. They are being held.

      --
      Peter predicted that you would "deliberately forget" creation 2000 years ago...
    24. Re:Perjury by Anonymous Coward · · Score: 3, Insightful

      So when do they sell off the assets of Wachovia and HSBC for their money laundering for international drug lords?

    25. Re:Perjury by SuricouRaven · · Score: 2

      Something of a trap was laid. The coins were siezed from silk road - but the accused's defense is that he is not actually DPR, but rather an innocent person who was caught up in the investigation. If he admits to possessing the coins, he effectively admits his guilt.

      It's not that uncommon for the government to sieze and sell assets they can demonstrate to be proceeds of or used in committing crime, even when they can't actually secure a conviction. It's a procedure much loved by law enforcement agencies, as in many countries including the US it can be done through a civil case rather than criminal, which makes it a lot easier for them to win. Iowa has a particular reputation for using this on out-of-state drivers - pull them over, find a pretext to search the crime, and if they find anything that could be considered a crime they seize the car and anything carried in it. No criminal charges needed - though they'll be sure to file some if the driver dare contest.

    26. Re:Perjury by Bartles · · Score: 2

      Sure, and if you lie about said intern and don't commit perjury with said lie, you won't be disbarred by the Arkansas Supreme Court.

    27. Re:Perjury by Chas · · Score: 3, Insightful

      Since when has The Constitution ACTUALLY stopped runaway law enforcement from fucking someone over?

      http://lmgtfy.com/?q=police+falsified+evidence

      --


      Chas - The one, the only.
      THANK GOD!!!
    28. Re:Perjury by alvinrod · · Score: 2

      If he would have had other money in a different account that couldn't be directly linked to the enterprise, they probably wouldn't be able to touch it. However imagine if it were a more typical drug bust and they had seized a pile of cash at a warehouse, etc. All of that would be held as well and wouldn't be useful to the defendant to pay legal fees, unless there were a lawyer willing to accept a promise of payment based on the assumption that the money would be returned on a non-guilty verdict.

      The moral of the story: If you're going to do something illegal, don't keep all of the money in one place.

    29. Re:Perjury by Uberbah · · Score: 2

      Easy cheesy.

      • The common-law crime of perjury is now governed by both state and federal laws. In addition, the Model Penal Code, which has been adopted in some form by many states and promulgated by the Commission on Uniform State Laws, also sets forth the following basic elements for the crime of perjury: (1) a false statement is made under oath or equivalent affirmation during a judicial proceeding; (2) the statement must be material or relevant to the proceeding; and (3) the witness must have the Specific Intent to deceive.

      The reason for this should be obvious: so the state cannot turn a prosecution into an open-ended fishing expedition, a la Ken Starr. Okay, so it looks like you might be innocent of meth possession, so we'll ask you how much you weigh, and charge you with perjury if you give what we say is a false statement. Or if you've ever been in a fight. Or if you've bought porn. Or if you've ever cheated on your taxes. None of which has anything to do with what the suspected crime was in the first place.

    30. Re:Perjury by Jane+Q.+Public · · Score: 2

      There also has to be a "chain of evidence". That is what appears to be a problem here.

      The FBI can't back up its "chain" of evidence. It SAYS it went from X to Z via Y, but has no records of Y. Oops... that's a fuckup.

      This smells from miles away as "parallel construction" which is ILLEGAL. The government does not have authority to lie to courts in order to obtain a conviction.

    31. Re:Perjury by HeckRuler · · Score: 2

      the search and seizure of private information without warrant is a crime,

    32. Re:Perjury by scarboni888 · · Score: 3, Insightful

      Unless you're Keith Alexander. Then it apparently does not apply at all.

    33. Re:Perjury by Ziest · · Score: 2

      The government does not have authority to lie to courts in order to obtain a conviction.

      The government may not have the authority to lie to courts _BUT_ unless someone hold them accountable then it is a moot point. A law that is not renforced is essentilly a law that has been rescinded. America is quickly reaching a point, if we are not there already, where their are two systems of law; one for the wealty, the privledged and the corporations and one for the rest of us. Guess who is getting fucked hard ?

      --
      Another day closer to redwood heaven
  2. Wait, what? by NoNonAlphaCharsHere · · Score: 5, Funny

    So you're saying the FBI made shit up? That's... that's... inconceivable!

    1. Re:Wait, what? by spiritplumber · · Score: 4, Insightful
      See this is really the problem.

      Whenever a private company does something blatantly unethical, they lose reputation and customers.

      Whenever an elected official does something blatantly unethical, they lose reputation and votes.

      Whenever a law enforcement does something blatantly unethical, they lose reputation and... then what? It's not like they can be voted out and it's not like they have competition, so why should they bother changing anything?

      I don't have a solution, other than "don't fcuk the police". Meaning: if someone belongs to an unethical unelected bureaucracy, don't talk to them, don't date them, don't sell them groceries, refuse to interact with them unless they force you to at gunpoint.

      --
      Liberty - Security - Laziness - Pick any two.
    2. Re:Wait, what? by itsenrique · · Score: 2

      "Whenever a private company does something blatantly unethical, they lose reputation and customers." But if they are a large enough business (even if not a "monopoly", take Wal Mart for instance) does it really matter? The U.S. government has lost reputation lately, and if you count international business deals as "customers" they've lost that too.

    3. Re:Wait, what? by NoImNotNineVolt · · Score: 5, Insightful

      Whenever a law enforcement does something blatantly unethical, they lose reputation and... then what?

      And then you end up with a society where the reputation of law enforcement officers is such that "fuck the police", "don't snitch", etc., become popular sentiments, and respect for the rule of law is replaced by a hatred for the agents of an oppressive state. The failure by the police to police their own (blue code of silence, etc.), entirely expected (and deemed inevitable) by many, has gotten us to where we are today. Where we go from here is anyone's guess.

      --
      Chuuch. Preach. Tabernacle.
    4. Re:Wait, what? by mrjimorg · · Score: 2

      Quote: But if they are a large enough business (even if not a "monopoly", take Wal Mart for instance) does it really matter
      Yes. I occasionally shop at WalMart. I wish they paid their employees more, but they're not "evil" by my standards - if someone gave you the option of getting $10,000 or having that money given to a WalMart employee, what would you choose? If you would choose the employee then I would call you a hypocrite - you always have the option of walking into a WalMart and giving money to employees.
      If WalMart did something offensive to me I would shop elsewhere. I have a choice as to whether or not I want to give them my business/money. Contrast that with the government which forces itself on me and takes my money without my consent. If I chose to deny them my wealth they would send people to collect it by any means necessary up to and including killing me to get it.

    5. Re:Wait, what? by ShanghaiBill · · Score: 3, Interesting

      I don't have a solution

      Here's the solution: You know those flyers you receive in the mail before election day from politicians saying they will "get tough on crime" and have the endorsement of the police chief and/or police union? Whenever you get one of these flyers, vote for the other guy.

    6. Re:Wait, what? by Tokolosh · · Score: 2

      My unconstitutional trumps your FBI illegal.

      --
      Prove anything by multiplying Huge Number times Tiny Number
    7. Re:Wait, what? by sjames · · Score: 2

      It doesn't work that way. It is also illegal to make shit up in court. Their only legal option at that point is to not testify at all. If that means no prosecution, so be it. That is what the law actually demands.

      The reasoning is simple. The NSA is the actual accuser which the defendant has a right to face. The FBI's testimony is merely hearsay which is not permissible.

  3. How does this matter? by ReekRend · · Score: 2

    I'm confused.

    1. Re:How does this matter? by NoNonAlphaCharsHere · · Score: 5, Informative

      It matters because it means the intelligence/evidence was gathered some other way, that the government doesn't want to admit to, and so they made up this story to cover how they supposedly found out this information. It's called "parallel construction", and it basically means that the NSA (or some other spooks) tipped off the FBI, whose job it was to come up with a plausible story as to how they found out.

    2. Re:How does this matter? by Anonymous Coward · · Score: 2, Informative

      Evidence not legally collected won't be admissible, so if the defendant's lawyers can call BS on some of the legally obtained evidence and have it excluded, what's left might not be enough for a conviction.

    3. Re:How does this matter? by pla · · Score: 5, Insightful

      How does this matter?

      Well, because the US has a set of requirements for defining the circumstances under which the government can search private property, and the scope of that search if allowed.

      The FBI has effectively just admitted that they had no legitimate way of knowing that they had probable cause. This means one of two things - They broke the law to obtain that evidence (the police can't search you to get the evidence they need to get approval to search you); or more likely, they lied about the real origin of their evidence (ie, the NSA told them "go here and do this, and make up a good cover story").

    4. Re:How does this matter? by Aram+Fingal · · Score: 4, Informative

      We also know that this Parallel Construction process really does happen. Thomas Tamm, https://en.wikipedia.org/wiki/Thomas_Tamm/, one of the many pre-Snowden leakers, was a lawyer at the Justice Department whose job it was to prepare warrants for the FISA court. He had cases where the basis for the warrant, the "probable cause", was based on illegal warrentless surveillance by the NSA. He knew that this was illegal but it was up to the FISA court to deny the warrants. They didn't. Instead they granted many such warrants and the decisions were never open to public scrutiny. After seeing too much of this, Tamm leaked the story to the New York Times in 2005. The Bush administration was able to dismiss the story, more or less as just allegations. This and similar treatment of other leaked stories was the reason that Snowden released he had to leak hard evidence and lots of it. The PBS Frontline documentary, The United States of Secrets has a good summary of these events.

  4. Re:Methinks that by anagama · · Score: 5, Insightful

    Exactly. And now the government must be stoked that it will have a test case to bring to the Supreme Court so that the Supreme Court can twist out some "logic" to say parallel construction is OK. They say that bad facts make bad law, and Ubrecht is fairly unlikeable, what with the attempts to find a hit man. From a "destroy the 4th" perspective, this case is even better than Smith v. Maryland: http://www.google.com/url?q=ht... (*). The Feds must be creaming their pants in anticipation of having parallel construction deemed constitutional.

    (*) This is the grandfather of our massive indiscriminate surveillance policy. The short summary is that the police were too lazy to get a search warrant that would surely have been granted, simply had the phone company set one up. And although it dealt with a single individual, with specific facts sufficient for a warrant, and covered a specific and short time period, the Third Party Doctrine took on a different character after that, being applied to all people, in the absence of any evidence, for all time.

    --
    What changed under Obama? Nothing Good
  5. Lawyer is wrong, no holes in FBI story by tomhath · · Score: 5, Informative

    Silk Road said they blocked requests. But their attempt to do so was incorrect, it allows any php request through. Think about how secure that server was...

  6. So.. by Severus+Snape · · Score: 3, Insightful

    FBI: We got the evidence through illict methods, so here is a nice little story we made up that is designed to be difficult to argue against.

  7. Snowden leaks: NSA data now used by DEA, others. by kbonin · · Score: 5, Insightful

    Great link: http://www.alexaobrien.com/sec...

    NSA programs PINWALE, MARINA, NUCLEON are now used to share their collected data (that isn't actually "collected" under new legal redefinition.) with DOD and who knows how many other agencies.

    "Parallel Construction" is used to hide sources.

    This is what happens when checks and balances decay in a system that has no honor or respect for what once made it great.

  8. Buying a leak by fulldecent · · Score: 2

    What if DPR offered a $10 million bounty for someone at the NSA to leak proof of illegal collection / parallel construction -- the proceeds coming from the return of his money.

    ------------

    If you had access to this proof would you take the offer?

    --

    -- I was raised on the command line, bitch

  9. Comment removed by account_deleted · · Score: 4, Informative

    Comment removed based on user account deletion

  10. The War on Drugs (TM) by ThatsNotPudding · · Score: 3, Insightful

    The first fatal casualty in The War on Drugs (TM) was an honest justice system, with someone in the back screaming 'She's got a gun!' while bursting through the front door of a knock and announce.

  11. Comment removed by account_deleted · · Score: 2

    Comment removed based on user account deletion

  12. FBI Had VPN Access by BaronAaron · · Score: 4, Interesting

    My guess is the FBI is covering up that they somehow got VPN access into the Silk Road's internal server network. The same VPN access Ulbricht used to administer the servers from his local coffee shop.

    They had already been tipped off about Ulbricht when he tried to order fake IDs from Canada. Then they figured out he was spending a good amount of time using the local coffee shop's wifi. They then sniffed his wifi traffic directly or just ordered the coffee shop / ISP to allow them to do the same. They couldn't decrypt his VPN session but they could see the destination IP which either lead to his server host provider or a 3rd party VPN service. Either way they just pressured the company that runs the service to give them the keys. Now that they have access to the server network they could collect what ever information they needed to build a case.

    The key to my theory is the PDF of the PHPMyAdmin access. Notice it's an internal IP address. No way they were accessing that from anywhere but the server network.