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Tor Ekeland in The Daily Journal: Silk Road and the Intangible Digital Age

When faced with difficult questions, courts love to punt based on standing. The “Silk Road” case currently in the Southern District of New York is a perfect example of this. Faced with having to decide whether the FBI was engaged in illegal surveillance and parallel construction (the practice of misrepresenting the source of evidence), the Court instead denied Ulbricht’s motion to suppress for lack of standing, and avoided the merits all together.

The Court’s decision leaves open serious questions about how the FBI approaches digital search and seizure in an age where mass surveillance is cheap and easy. Given the FBI’s long and well-documented history of illegal surveillance, there are certainly questions that need to be asked. In the Silk Road case, the FBI may have misrepresented how it obtained crucial evidence. Why the FBI might want to hide its true source of evidence is an interesting question. Perhaps it doesn’t want to reveal new surveillance techniques; or perhaps in this post-Snowden era the FBI is worried that it risks a 4th Amendment backlash if its true methods were revealed.

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Road to Nowhere

In Liminae: The Road to Nowhere

It takes us about six hours to drive to the rural state jail (that’s owned by two judges) the Feds contracted with to hold our client. Accused of computer crimes, he can’t effectively review evidence in jail – there’s no practical access to computers in the gulag. They’ve seized all his assets claiming they’re the ill-gotten gains of crimes the government can’t identify, and their computer forensics – if you can call them that – have no scientific basis and are full of basic errors and typos. In my decade as a federal criminal defense lawyer doing computer cases across the country, I’ve never come across a case where the government was so completely off.

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Guilty Until Proven Innocent

A defendant’s view from the trenches of federal criminal court This post is originally published to Substack. You can read and follow us there.

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