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.
= = = = =
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).