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A young man named Ross Ulbricht sits on trial facing life in prison. His alleged crime: building and running a website, which enabled anonymous trade of all kinds of goods, particularly illegal ones.
One of the most terrifying things humans can suffer is losing control over their freedom, and thus, their future. Societies throughout history have been based on this fear, including ours. Behind every criminal law, a threat of imprisonment echoes throughout courtrooms as the gravel hits the block.
But what if the Law is old, outdated, or vague? What if new technologies render old laws obsolete?
With the information age rising, the lines between physical and digital ‘aggression’ or ‘theft’ have been blurred, and debate on the proper definition of ‘cyber crimes’ and their proper punishment is yet to reach consensus. This fuels polarization, at one end the anonymous hacker groups, at the other end, organizations like the NSA.
Given the deep dependence the developed world now has on information technology, we would hope proper ethical standards were set and established. But governments are slow to catch up with technology as existing laws have been criticized as vague in their definitions and rash in their punishments.
In 1983, the movie War Games hit the theaters telling the story of a teenage boy who managed to hack the phone lines breaking into defense agency NORAD almost starting a nuclear war. Later that year, President Reagan asked a group of Democrat congressmen as they discussed national security, if they had watched the movie. A biography of Reagan recalls him saying: "I don't understand these computers very well, but this young man obviously did. He had tied into NORAD!”
This is believed to be the unholy birth of 6 different anti-hacking bills passed the following year, among them the highly criticized Computer Fraud and Abuse Act (CFAA), which the EFF has labeled as draconian. Generally speaking these laws were originally intended to discourage hacking of federal defense and nuclear facilities with heavy handed punishment.
Fast forward a couple of decades and the CFAA bill has been modified and interpreted to such a degree that a woman from Missouri accused of Cyber Bullying was indicted for creating a fake Myspace profile. That’s right, fake profiles according to CFAA are hacking.... depending the fine print of those “Terms and conditions” that everyone agrees to without reading. According to these terms used by the CFAA, violation of these otherwise civil contracts are punishable as a felony and have been used to stack up charges on the prosecuted for decades, where otherwise their crimes would be considered misdemeanors.
Ultimately, the charges facing the Missouri woman were dropped, but others have not been so lucky. One of the most famous, yet not famous enough, abuses of the CFAA was the case against Aaron Swartz.
Aaron was caught up in a legal battle with state prosecutors that some have called vicious. A la Robin Hood, he allegedly hacked into JSTOR servers to download and freely distribute thousands of academic articles produced by the university, which were hidden away behind copyright and pay walls.
JSTOR did not press charges, but it did not matter. According to the prosecutor, this case was now under federal jurisdiction as it violated the CFAA. Prosecutor Carmen Ortiz was quoted saying that "Stealing is stealing whether you use a computer command or a crowbar," while failing to highlight that he would have faced a 5 year sentence on average had Aaron been charged with assault, while under the CFAA ruling he was facing 30.
After a long and grueling trial, which drained much more than he had earned co-founding reddit, Aaron took his own life, giving up an uphill battle with the Feds. The crime? Violation of the cold war inspired CFAA.
Today something similar is happening, though much less intrusive than faking a profile or physically hacking a server. Ross Ulbricht is facing life in prison for allegedly helping operate the infamous Silk Road online market.
One of the most notorious elements of this case is that it is a so called “victimless crime” that is, none of the users of the website, buyers or sellers, regardless of the goods were being purchased, have made legal complaints against Ross, or rather against Dread Pirate Roberts. The complaint comes from the state, and is the meeting point between a long line of anti-hacking law overreach and the failure of the 40 year ‘War on Drugs.’
It is important to note that since there is no victim to Ross’s alleged illegal activity this court case is not founded on contract law. And given the 500+ variations of cannabis that was traded on the Silk Road, it’s hard to say it was even anti-democratic with the plant being one of the most popular recreational and medicinal drugs, which after decades of controversy remains illegal.
So what moral ground is the Silk Road trial actually based on? Well, that’s a question for another time. What is important here is that regardless of the moral legitimacy of this trial or the sensibility of the laws behind it, Ross has already lost years of his life. His family and community have lost much peace of mind as well as hundreds of thousands of dollars. Meanwhile Ross’s chances at winning this trial are not looking good.
So far he is accused of creating and running a website that enables the exchange of illegal goods, and as such, is responsible for illegal trades through an unusual use of ‘transferred intent.’ But perhaps the most worrying thing about this case is that software developers as well as many organizations and technologies including Google, Facebook, Fedex, etc, all enable many crimes indirectly, similar to how Silk Road did.
And this case could set a legal precedent for more draconian sentences to come. Bitcoin itself enabled the Silk Road to happen but so did the provider of the Internet service, on top of which it all runs. Meanwhile, HSBC launders US$800 million dollars and gets away with a slap on the wrist.
The moral of the story is that the spider web of the US court system are complex and there are plenty ways to get entangled if you are not among the political or financial elite. Perhaps Satoshi saw this coming. Maybe he feared facing life in prison as Aaron Swartz did or sitting where Ross Ulbricht sits today with their biggest crime apparently being disruptive innovation.
Finally, how do we stop this trend? I personally have no easy answers. As someone that’s lost faith in the political process, I prefer supporting technological solutions that will balance out the power disparities between citizens and governments. Such as those that decentralize everything, and those that help us protect our personal information, which given a motivated enough enemy, can be as valuable as our private keys.
As far as short term solutions, donating to Ross’s defense is I think a novel cause, since whether Ross is guilty or not, the government won’t be running out of funding to prosecute him. Though unless something fundamental changes, it will be either Ross or the next in line.
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