
Ross Ulbricht Calls for New Trial, Alleging Feds Hacked Tor - cgcardona
http://www.wired.com/2015/03/ross-ulbricht-calls-new-trial-alleging-feds-hacked-tor/
======
at-fates-hands
Unfortunately, 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...](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=494&invol=259)

 _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.

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gwern
Original, on Reddit:
[https://www.reddit.com/r/DarkNetMarkets/comments/2y9q55/fbi_...](https://www.reddit.com/r/DarkNetMarkets/comments/2y9q55/fbi_control_of_exit_nodes_beginning_2012_interest/)

No one's quite sure why the FBI would be logging exit node traffic in an
investigation aimed at the SR1 hidden service.

~~~
maxerickson
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...](https://blog.torproject.org/blog/plaintext-over-tor-still-plaintext)

~~~
kpcyrd
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.

~~~
maxerickson
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.

~~~
RemoteWorker
> the TOR network

You mean the Tor network.

------
300bps
Most attorneys find it is more effective to present evidence during a trial
than after their client has been convicted.

~~~
rayiner
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.

~~~
300bps
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...](http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/appeals.html)

 _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._

~~~
downandout
_> " 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.

~~~
300bps
_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.

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tedunangst
Is Ulbricht now going to claim that the server did belong to him?

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marincounty
"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?)

