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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