Foreign Servers, Drug Markets, and Warrantless Searches

October 14, 2014

Does a warrantless search of a foreign server that yields evidence leading to the arrest of an American citizen violate that citizen’s rights under the Fourth Amendment?
The answer to that question begins back in July of 2013 when the Federal Bureau of Investigation received help from Icelandic authorities who searched a server the FBI believed to house an online drug-trafficking marketplace known as Silk Road. Silk Road was a Deep Web marketplace where anonymous users bought and sold drugs with the encrypted digital currency Bitcoin (Khan Academy provides an excellent overview of bitcoin here). The FBI shut down Silk Road in October 2013 after the site facilitated over 1.2 million transactions worth over $1.2 billion in total money exchanged over its two and a half year history (it should be noted that although the original Silk Road website was shut down, an analogous Deep Web site called Silk Road 2.0 has since been created).
The information gleaned from this Icelandic server lead the FBI to ultimately indict Ross Ulbricht, an American citizen, on February 4, 2014. The indictment alleged that Ulbricht, through his creation and maintenance of the site, “reaped commissions worth tens of millions of dollars” and that he even “solicit[ed] the murder-for-hire of several individuals he believed posed a threat” to Silk Road.
Since his indictment, Ulbricht has not conceded that he has created, administered, or even visited Silk Road. Additionally, Ulbricht has not claimed ownership of the Icelandic server.
Most recently, Ulbricht’s attorney submitted a motion to suppress evidence on the grounds that the evidence acquired as a result of the Icelandic server search in 2013 constituted searches and seizures that violated the Fourth Amendment. The Fourth Amendment secures the rights of citizens to be free of unreasonable searches and seizures.
Which brings us back to the original question:

Does a warrantless search of a foreign server that provides evidence leading to the arrest of an American citizen violate that citizen’s rights under the 4th Amendment?

In an opinion filed on October 10, 2014, Judge Forrest found that the answer to the question was no. Judge Forrest’s reasoning rests on the premise that a defendant must claim a personal privacy interest in the items or premises searched or seized in order to raise a claim under the Fourth Amendment. In other words, the defendant must claim ownership of the premises or items at the time the search or seizure occurred to raise a Fourth Amendment claim.
Judge Forrest found that Ulbricht “failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he [] failed to submit anything establishing that he has a personal privacy interest in the Icelandic server.” Since Ulbricht failed to claim that he had a personal privacy interest in the Icelandic server, through a sworn statement or otherwise, Judge Forrest found that “he [was] in no different position than any third party would be” with regards to the server. Therefore, Ulbricht cannot suppress the evidence from the Icelandic server and any arguments Ulbricht may want to raise about the constitutionality of the search of the server are essentially irrelevant.
This ruling undoubtedly comes as a serious blow to Ulbricht’s defense, but more than that, it could open the door to allow the FBI to access any foreign server in the world without a warrant as long as the search is declared reasonable.