On Feb. 4, Ross Ulbricht was convicted on all counts of the charges he faced for allegedly creating and running Silk Road, a Dark Web marketplace where state-disapproved goods and services were sold. This case has at least six important lessons. Let us examine them.
1. Making and keeping notes of one’s state-disapproved activities in a place where they can be found is unwise. From revealing his real name on an Internet forum using an unencrypted connection, to storing large amounts of incriminating information on his laptop, Ulbricht made many security errors that allowed government investigators to discover his identity and track him down. Those who are engaged in state-disapproved activities must be more careful. They must be correct every time; government agents only need to be correct a few times.
2. A fair trial requires an impartial judge. Unfortunately, Judge Katherine Forrest was anything but impartial, siding with the prosecution at every turn and essentially railroading Ulbricht to a guilty verdict. The simple fact is that having a government judge decide a case prosecuted by government agents is a conflict of interest, and an independent judge who is not in the government’s employ should be used for cases involving the government, as all criminal cases currently do.
3. A fair trial requires an informed jury. Because a jury cannot be punished for its verdict and a defendant found not guilty cannot be tried again, a jury has the power to nullify unjust laws by refusing to convict defendants of breaking them. The prosecution in the Ulbricht case explicitly motioned to prevent the defense from making such an argument. Judge Forrest took measures to prevent potential jurors who read information about jury nullification from being seated on the case, even threatening to sequester the jury.
4. The state will violate its own laws. The Fourth Amendment is supposed to prohibit unreasonable searches and seizures and require a search warrant given upon probable cause describing particular places to be searched and things to be seized. The FBI appears to have disregarded this, and Judge Forrest rejected the defense’s argument that the FBI’s conduct was illegal, thus barring them from raising such an objection at trial.
There is also the matter of the contract killings that Ulbricht allegedly ordered. He was never indicted in New York for any of them, and the FBI has even admitted in a sworn affidavit that there is no evidence that any homicides occurred, yet the prosecution was allowed to mention this allegation to the jury. It was included as a surplusage in the narcotics trafficking charge. A surplusage is essentially an uncharged crime for which the prosecution bears no burden of proof, and can be used to assassinate the character of the defendant.
5. Dangerous precedents have been set. Under present law, website hosts are not held responsible for illegal actions that occur on their websites unless they are directly involved with those activities. This case brings that standard into question and creates the possibility that those who create a forum where criminal activity occurs may now be held liable.
There is also a risk that the aforementioned questionable behavior regarding the Fourth Amendment will become enshrined in case law, thereby eroding civil liberties in cases involving online activities.
6. Agorism alone will not end the state. Silk Road (and its successors) are experiments in agorism, which is the idea that a stateless society can eventually be achieved by using gray and black markets as much as possible while relying less on state-sanctioned markets. The trouble with this approach, as seen in the Ulbricht case, is that black market enterprises will eventually be revealed to government authorities, whether by an active search by the authorities, carelessness by those who run the black market enterprise, or snitching by those who run state-sanctioned enterprises. When this inevitably happens, those who run black market enterprises must either surrender to agents of the state or try to forcefully repel them. While agorism can be a positive force for freedom, meeting statist violence with non-violence will only continue to get good people like Ulbricht imprisoned or killed.