January 29, 2018

How YOU can help #FreeRoss Ulbricht of Silk Road

Silk Road: An economic simulation of what a world without aggression could be like #FreeRoss Retweet

You’re about to learn: 

  • Who Ross Ulbricht is
  • How The State persecuted him
  • How we hope to #FreeRoss or reduce his sentence with an amicus brief to the Supreme Court
  • How success, in this case, could help restore and/or bolster the 4th and 6th Amendments

Ross Ulbricht dubbed himself the Dread Pirate Roberts, a Princess Bride character. He went to the so-called “darknet” and used it along with Bitcoin to build an agorist marketplace called Silk Road. Here’s how he described his work…

I want to use economic theory as a means to abolish the use of coercion and aggression amongst mankind. Just as slavery has been abolished most everywhere, I believe violence, coercion and all forms of force by one person over another can come to an end. The most widespread and systemic use of force is amongst institutions and governments, so this is my current point of effort.

At Silk Road anything and everything was for sale, including things that are prohibited by The State — narcotics, fake IDs, and so-called money laundering.

But the aggression Ross sought to abolish was instead turned against him. The State treated him like a super criminal, despite the fact there’s zero evidence he directly harmed anyone.

The judge sentenced Ross Ulbricht to life in prison without the possibility of parole.

Perhaps that’s because he exposed how The State could be replaced by more natural forms of governance. On Silk Road…

  • People could trade securely, knowing they’d be paid and that there’d be no violence
  • No State instruments (dollars) were needed to facilitate these transactions
  • No taxation was needed to “civilize” this society
  • There was greater consumer safety. Product assurance and seller reputation mattered, even on “black market” items

Because the risks declined and taxes were absent, prices fell. Another win for consumers.

Even drug transactions were relatively safe and financially secure. It’s beyond debate that Ross Ulbricht made the participants in these transactions safer. Indeed, Ross believed he was delivering…

…an economic simulation to give people a first-hand experience of what it would be like to live in a world without the systemic use of force.

But, as they say, “Government hates competition.” And it appears that The State was hell-bent on breaking the rules to make an example out of Ross Ulbricht.

#FreeRoss

The prosecution and trial of this man have been a disaster. The State violated Ross’s Fourth Amendment rights to obtain his conviction. Appellate judges have opined that his sentence was more excessive than they would’ve applied. His sentence may violate the Sixth Amendment, but these judges felt the Supreme Court needed to be the ones to say so.

These Fourth and Sixth Amendment arguments are severable. Even if Ulbricht loses on the Fourth Amendment question, he might still prevail on the Sixth Amendment. His sentence could be reduced, and he may be able to spend his later years free from prison.

Ross Ulbricht’s case has been accepted by the Supreme Court. Perhaps you’ve seen the hashtag #FreeRoss. DownsizeDC.org, Inc. and Downsize DC Foundation want to file an amicus brief as our contribution to #FreeRoss. And we need your help to do it.

We believe we have a unique and valuable contribution to make given our landmark work on the Fourth Amendment. Decisions like (Antoine) Jones and Riley, and the current Carpenter case — all cases where we’ve written one or more briefs — cases that have been explicitly referenced by Ulbricht’s attorneys. We think the arguments that we have made in the past actually helped bring this case to the attention of the Supreme Court.

Restoring the Fourth Amendment

In several previous briefs we’ve argued that the Fourth Amendment protects more than a mere “expectation of privacy.” Privacy expectation was a new standard introduced by the Supreme Court in 1968. But the boundaries of “expectation” have constantly shrunk as technology advanced, until Jones.

  • Our argument in Jones reestablished the “property standard” as a beachhead.
  • Now we’re looking to recapture ground with the restoration of something called the “mere evidence rule.”

The mere evidence rule was a prevailing Fourth Amendment test in the early 20th Century. It forbids “fishing expeditions.” Under this rule, warrants based on probable cause had to be limited to…

  • instrumentalities of a specified crime
  • fruits of that crime
  • contraband

Of course, we cannot support the notion of “contraband” because as David Nolan wrote…

…individuals have the right to own and use anything- gold, guns, marijuana, sexually explicit material- so long as they do not harm others through force or the threat of force. Laws criminalizing the simple possession of anything are tailor-made for police states; it is all too easy to plant a forbidden substance in someone’s home, car or pocket. Libertarians are as tough on crime — real crime — as anyone. But criminal possession laws are an affront to liberty…

But the issue of what is and is not contraband is one where we must convince our neighbors and Congress to end aggression. Even with contraband on the list, it would still be a major advance if the courts resurrected the mere evidence rule. With that rule in place, Ross wouldn’t have been so easy to convict. In fact…

The Justice Department used warrantless pen/trap search orders on Ulbricht’s home IP address and laptop. They engaged in 14 different search and seizure actions on his computers, other equipment, and online accounts, largely to obtain “mere evidence” — in this case, “data dumps” — with the hope that they could find something that would stick.

Our brief will answer the question “Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment,” with a resounding No.

But there’s another question in this case…

Does the Sixth Amendment permit judges to use “facts” that were not presented or tested in court to exceed sentencing guidelines?

The judge violated maximum sentencing guidelines by giving Ulbricht life without parole. That alone might be unjust. But the judge also acted on something called “judicial findings” that were not presented or tested in the trial. Even the Justice Department stressed that the jurors were not required to rule on some of these matters. Plus…

  • The judge’s “findings” held Ulbricht responsible for the acts of others.
  • The judge’s sentencing was based on merely the preponderance of the evidence rather than on evidence that left no reasonable doubt.

Basically, the trial judge went outside the bounds of due process to justify a sentence that far exceeded the standard sentencing guidelines for Ulbricht’s supposed crimes.

The Appeals Court implied that they probably wouldn’t have given Ross the harsh sentence he received, but that they were powerless under existing law to do much about it. Indeed…

The late Justice Scalia and Justice Thomas have called for the high court to render clearer guidance on sentencing based on “judge-found facts.” New Justice Gorsuch has also expressed concern on this issue. This #FreeRoss case could be the one that finally addresses the matter. And our position is that….

Sentencing must be limited to those matters proven at trial.

We believe these arguments can prevail in the Supreme Court. But…

There’s one other hurdle we face.

Usually, when we present one of these briefs to you, our attorneys have called us to join a coalition of groups underwriting the expenses. But…

We asked our attorneys to take this case, and it isn’t yet known if other groups will help with funding.

Libertarians understand the issues at stake in the Ross Ulbricht case better than anyone. There’s no interest group for systems that operate outside The State. We libertarians are it.

If this brief is to happen, we must take the lead! And provide most of the funds!

That means I must turn to you. Who else will understand and appreciate the need?

That’s why we MUST have at least one donor who will give $1,000 AND at least two donors who will give $500 or similar large amounts.

We know that most people cannot afford donations that large. That’s why we need as many people as possible joining us with whatever they can give. We need YOU!

DownsizeDC.org is partnering with the Downsize DC Foundation, home of the Zero Aggression Project. When you click this link, you’ll be taken to the ZAP contribution form. That way your contribution can be tax-deductible if you itemize.

At this point, monthly pledgers are why we keep taking cases. Consider joining them! The more pledgers we have, the more aggressive we can be in the courts.

Thank you for being a DC Downsizer,

Jim Babka & Perry Willis
DownsizeDC.org, Inc. &
Downsize DC Foundation (home of the Zero Aggression Project)

If your comment is off-topic for this post, please email us at feedback@downsizedc.org

comments

2 Comments

  1. Brad Lindborg
    Posted January 29, 2018 at 10:05 am | Permalink

    Ross needs fair and impartial treatment. The existing law is incapable of addressing the new reality of commerce and the internet.

  2. Posted January 29, 2018 at 2:06 pm | Permalink

    A key element not discussed in these inquiries into the Digital Commons, is that of authorship.

    If a written message appears on paper or parchment, with ink letters hand-drawn by the writer, it is rather easy to identify the work, as the original handwriting of the writer. Various individual quirks of the length of our bones and tendons, the strength of the different hand muscles, and even the emotional context we place into certain words, influence the way a hand-written document looks. No two people have exactly the same handwriting.

    What’s of great concern in the Ross case, is that the Government did not prove Ross to be the writer of alleged offers to procure murder for hire. It is entirely possible that a prosecutor forged them, or that an investigator forged them, or that a witness in the case forged them. Possibly even some individual seeking to make a plea deal in an unrelated case, forged the “evidence” that the judge relied on, to sentence Ross as if Ross had attempted to murder people. The lack of a trial on this evidence, makes it impossible to identify when digital evidence is genuine and when it is a forgery, because digital representations of words are identical, no matter whose hands were on the keyboard.

    Allowing this ruling to stand, restores the ancient claim of “good law” in what’s now the Second Circuit, in the case of Crown v Zenger. The British Crown was prosecuting New York printer Peter Zenger for the offence of “seditious libel”, for asserting that the King’s Governor of New York had taken a bribe. The Crown admitted that the bribery allegation was true, but held Zenger to have done great harm in writing about the bribery, because Zenger’s pamphlet led the people to mistrust the Governor’s honesty. Effectively, in this early incarnation of today’s Blue State doctrine, the courts must allow The State to be wrong, lest people cease trusting The State.

    In the current case of Washington v Sessions, due for oral arguments in the US Courthouse at New York City, 3 lawyers for Attorney General Jeff Sessions seek dismissal of a case that shows the DEA to have exceeded it’s legal authority in ruling on what chemical substances are subject to the Controlled Substances Act. Plaintiffs say the Act assigned the responsibility of so ruling, to the Surgeon General, and that cannabis was temporarily placed on DEA Schedule I by Congress, pending a ruling by the Surgeon General. Plaintiffs argue that DEA’s delay in seeking a Surgeon General’s ruling for 44 years, is excessive. Mr Sessions’ lawyers cite this same Second Circuit precedent, to argue that the courts must not interfere when an agent of the Government does something wrong.

    I predict that case, Washington v Sessions, will be appealed to the Second Circuit, and thence to the Supreme Court next year.

    Congress is reluctant to impose a statute legalizing cannabis, because Congress already provided an administrative procedure, by which the Surgeon General can re-legalize cannabis today. It is the DEA that’s refusing to allow the administrative procedure to proceed…and they seem to be hiding behind this Second Circuit precedent allowing all manner of Government mischief.

    Crown v Zenger ended in a jury nullification. Jurors refused to convict Mr Zenger and the bribe-taking Tory governor had to accept his public humiliation. The Zenger case was a key reason why our federal constitution prohibits double jeopardy…had the King’s Governor thought he could win, he might very well have kept re-trying Mr Zenger until he could find a jury willing to lock the man up.

    The introduction of unproven evidence at sentencing, is clearly dangerous to American liberty, and the Second Circuit’s refusal to uphold the Constitution in this case is very troubling. Most dangerous of all is the concept that a Government agent or agency should not be questioned to confirm that the agent or agency is telling the truth, before the court believes the agent or agency. This invites liars to become Government agents. This is an excellent case and it very much needs to be briefed.

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