by Dennis Crouch
Important petition for writ of certiorari outside of patent law, but still well within the technology law sphere: Ulbricht v. U.S., Supreme Court Docket No. 17-950, questions presented:
- Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.
- Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.
Ulbricht is known as the Dread Pirate Roberts, Frosty, Altoid, and creator of the Silk Road dark web marketplace. Here, Ulbricht challenges his conviction and sentencing for drug trafficking, money laundering, and hacking — arguing that the evidence used to convict was illegally obtained in violation of his constitutional rights.
Without warrant, the government tracked Ulbricht’s communications to a particular IP address and then began skimming data from all communications passing through his home wireless router (located in his living room). This allowed the government to identify the source and destination of all messages, including all of Ulbricht’s devices that he used for communications (including his laptop whose seizure became the sting target). Under the Electronic Communications Privacy Act (ECPA), the government needs a court order, but does not need to show probably cause as required by the Fourth Amendment. The government did obtain such an order prior to beginning its router-skimming operation. The petition here argues however that the US Constitution requires more.
- Appendix that Includes the Lower Court Rulings.
- Ulbricht Petition
- Brief amici curiae of National Lawyers Guild
- Brief amicus curiae of American Black Cross
- Brief amici curiae of Reason Foundation
- Brief amici curiae of Drug Policy Alliance
- Brief amici curiae of Downsize DC Foundation
In its decision, the Second Circuit relied upon the analogy to old-school-telephones and held that the collected internet traffic was “akin to data captured by traditional telephonic pen registers and trap and trace devices.” As such, no warrant was needed.
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Two important telecom cases are pending before the court this term –
- Carpenter v. United States (Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment).
- United States v. Microsoft (Whether a US provider of email services must comply with a probable-cause-based warrant by making disclosure of electronic communications within that provider’s control, but that are stored abroad in a foreign country) (Argument set for Feb 27).
Ontario v. Quon, 560 U.S. 746 (2010), is relevant and was unanimous, though it was about work-related seizure. It’s notable mostly because of the analogy in the briefing and at oral argument to the pin register cases and the fact that it covered the contents of text messages.
Thanks.
This is an interesting tidbit – both for what it addresses as well as for what it states that it will not address:
“(1) The Court does not resolve the parties’ disagreement over Quon’s privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners’ review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere.“
Does the Electronic Communications Privacy Act (ECPA) create a (separate) “public right” that in the surface looks like something that the 4th amendment may protect, but because Congress passed this item, and it is a “public right,” that the other Constitutional protections just don’t apply?
(Yes, phrased this way to draw parallels to the fact that the Constitution protects property, but that a “redefining” to “public right”may in effect remove (many unstated) Constitutional protections.
Data just wants to be “free,” so where is the harm?
Nobody knows what the f ck you’re talking about.
If you have something to say, Billy: say it. Use declarative sentences. State your opinion, and justify it.
Otherwise take your lizardbrain and your slimy b.s. and crawl back under your rock.
More Accuse Others…
Not a surprise.
At all.
Well Malcolm, what is your view on such “data” matters?
Is there some inherent protection in data? How would such protection attach? Your view that so often takes an affront with applying intellectual property protections to “just data” would appear to place you in a position that any “but privacy” leanings would create a dichotomy that would need to be explained.
Much like your left-unexplained dichotomy against the wealthy as you persistently attack a form of innovation most open to the non-wealthy, as well as your actions here on this blog in the days of DISQUS wherein you sought out the highest levels of privacy to prevent the easy compilation of your comments here, your animus and your stated reasons for your animus appear to be in opposite directions.
Your silence on these issues screams volumes.
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