The Silk Road To Federal Prosecution: The Charges Against Ross Ulbricht

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174 Responses

  1. Clark says:

    Having read the entire New York complaint, I'll be your obligatory ancap Devil's advocate, and say that Ulbircht has done nothing immoral, and the only thing that he's done that's illegal, under the Constitution, is request a murder (and that should be a state-level crime, not a federal one).

    Free the Silk Road One!

  2. Jim Tyre says:

    Ken, a couple of things about the New York Complaint. (I read it awhile ago, haven't read the Maryland stuff.)

    First, it acknowledges expressly that Tor and Bitcoin have legitimate uses. That's unlike many "blame the tools" things I've seen (and likely so have you) from the feds.

    Second, the explanation of Bitcoin in that Complaint is actually quite good. I've seen far worse.

    I have no comment on the rest, but those things were worth a brief mention.

  3. JasonRitzke says:

    Yay. My first comment here…

    I'm maybe a bit unclear on this. Is it actually being asserted that the very nature of a TOR-based sales site, analogous to ebay, with bitcoin as a payment method, that allows users to trade in narcotics (although not exclusively), is in an of itself a hacking offense and money laundering? That's some pretty terrifying tech precedent to set.

    Edit: by "they" I mean New York.

  4. Ken White says:

    Clark:

    I take it your proposition is that it is not immoral to try to have an extortionist murdered. I decline to be drawn into that discussion. Even were I to agree, I would be inclined to say that the man who passes sentence should swing the sword.

  5. Peter H says:

    Pedantic technical point: Southern District of NY only covers part of New York City. Brooklyn, Staten Island, and Queens are in the Eastern District of New York. It does cover a bunch of the northern suburbs of NYC as well though.

  6. wgering says:

    @JasonRitzke: I believe the money laundering charge is based on Ulbricht's/DPR's receipt of a fee in return for facilitating transactions involving illegal drugs.

    I'll leave a discussion of the "computer hacking conspiracy" charge to those more intelligent and informed on the subject than myself.

    General Question: Would it still be illegal (or as illegal) if Ulbricht/DPR hadn't profited from the sales he enabled? If he just hosted a forum that happened to be used by buyers/sellers of illegal drugs (among other, legitimate, transactions), would he have protection under Section 230 of the CDA?

  7. EPWJ says:

    What amazes me is that in this day and age of 24/7 surveillance, that some could think they could sell drugs over the internet and then try to commit murder for hire, again over the internet?

  8. Matt says:

    I read on the Reuters website that the FBI seized $3.6M worth of Bitcoins. How is that possible?

  9. Jim Tyre says:

    If he just hosted a forum that happened to be used by buyers/sellers of illegal drugs (among other, legitimate, transactions), would he have protection under Section 230 of the CDA?

    230 has a number of carve outs, things it does not protect. One is violation of federal criminal laws.

  10. En Passant says:

    wgering wrote Oct 2, 2013 @7:28 pm:

    General Question: Would it still be illegal (or as illegal) if Ulbricht/DPR hadn't profited from the sales he enabled? If he just hosted a forum that happened to be used by buyers/sellers of illegal drugs (among other, legitimate, transactions), would he have protection under Section 230 of the CDA?

    I never practiced federal. But it seems reasonable that would be the case.

    Edit: Yup. As Jim Tyre indicates above, reason has been carved out of the statute.

  11. Carl says:

    Holy cripes, I just read that Zimmerman affidavit. It looks like a D-student in the 5th grade trying to write a persuasive essay. I followed most of the trial, and it's not as though a better summary of evidence couldn't have been written. It's amazing how people who never should have been promoted to high school end up with jobs like that.

  12. SirWired says:

    @Matt. If the feds seized a server that was not adequately secured against forensic investigation, they now have the BitCoin "wallet" file(s), which contain the keys signifying ownership of the currency.

  13. Matthew says:

    Great post. It is a shame a cool online marketplace that was completely free of regulation has been destroyed because of crimes committed by the guy who made it. I don't really think it is a good idea to sell drugs or do other currently illegal things through a marketplace like this, but I do think people should be able to sell things to one another without governments getting in the way. I think this has already had effects on alternative currencies like bitcoin as well (I saw reports of bitcoins dropping in value following this news).

    I've never used SR or possessed a bitcoin, but both are very interesting ideas.

  14. SirWired says:

    I find it amusing that many of the BitCoin proponents are fond of propounding dark theories about how governments are terrified of them, and will, any day now, declare them "not money", valueless, and contraband.

    Yes, the heavy use of BitCoins is likely to acquire far more attention from the government than the heavy use of a bank account. But in this complaint (and in other regulatory and legal actions that have been BitCoin related), the Feds have made it absolutely that BitCoins have value and the law treats them like any other currency. (And you are put under the same laws that regard banking, theft, fraud, securities, taxes, etc.)

  15. ketchup says:

    @Clark,

    Ulbircht has done nothing immoral, and the only thing that he's done that's illegal, under the Constitution, is request a murder

    (see, I read your tutorial!)

    What do you mean by "illegal under the Constitution"? The straightforward interpretation would be that you mean that the Constitution itself does not prohibit narcotics trafficking, computer hacking, or money laundering. But that interpretation doesn't make sense, since not even the feds are claiming Ulbricht's acts are unconstitutional. You seem to be implying that the federal laws prohibiting narcotics trafficking, computer hacking, and money laundering are unconstitutional. Or is there a third interpretation that I am missing?

  16. wgering says:

    @Jim Tyre: shame on me, it's right there in 230(e). Thanks for that.

    Another question: how is Silk Road providing a messaging service that results in drug sales different from MySpace providing a messaging service that results in sexual assault (see Doe v. MySpace; I'm afraid to put a link lest I enrage the spam filter)?

    Edit – ^still hypothetically if Ulbricht/DPR did NOT profit from said sales.

    Edit Edit – LOVE the edit function, thanks David!

  17. SirWired says:

    One more post, and I promise to shut up:
    I think BitCoins are an interesting political and technological experiment, but they are likely doomed to failure (or at least failure to be widely adopted.)

    To be blunt, the designers of the BitCoin picked a very poor expansion curve. It has the following problems:
    – It was too steep at the beginning, meaning that early BitCoins were easy to "mine" and those that "got in on the ground floor" were those most likely to hoard (vs. trade) BitCoins. This is borne out in the rather low BitCoin float vs. the total value of the currency.
    – The curve levels off too quickly. For BitCoins to form even a tiny "market" size, they must deflate by several orders of magnitude. There is no provision in the curve to account for growth of the "BitCoin" economy, meaning wider adoption guarantees deflation. And, incidentally, that guaranteed deflation inhibits the wider adoption itself.
    (The ability to grow or shrink your money supply in order to try and tame currency inflation and deflation is why pretty much every modern economy uses fiat currency; albeit some economies are better at it than others.)

    Another massive inhibitor of widespread adoption is the horrible volatility. Even if you continually re-price vs. a more stable currency, the BitCoin exchange rate can undergo significant changes between when you receive the BitCoin, and when you can sell it. (There is a mandatory minimum waiting period to let the transaction propagate before you can trade the same coin again.) If you look at a BitCoin price chart, (and the Bid/Ask spread), it's more suited to a stock than a serious currency. (BitCoins have a Bid/Ask often nearing 50 basis points and commonly gyrate several % a day; for an actual currency to do this regularly would be considered a catastrophe.)

    And, beyond the economic arguments, I have serious doubts about the long-term scalability of the BlockChain model that underlies the technology; its currently rising by about 1GB per month.

  18. Ken White says:

    @Jim and @wgering: In addition, Section 230 wouldn't apply because the illegal act is not the forum post. The forum post merely memorializes the illegal agreement. It's evidence of the crime, not the crime itself.

    Also:

    Another question: how is Silk Road providing a messaging service that results in drug sales different from MySpace providing a messaging service that results in sexual assault.

    Again, the complaint and indictment don't merely charge that he provided a platform; they charge that he was actively involved in arranging drug deals through it.

  19. Jim Tyre says:

    Another question: how is Silk Road providing a messaging service that results in drug sales different from MySpace providing a messaging service that results in sexual assault (see Doe v. MySpace; I'm afraid to put a link lest I enrage the spam filter)?

    Edit – ^still hypothetically if Ulbricht/DPR did NOT profit from said sales.

    In Doe v. MySpace, the underlying charges were state law violations, not federal criminal law violations. 230 immunity didn't apply to the former, does to the charges (with your hypo) here.

  20. eddie says:

    Having read the entire New York complaint, I'll be your obligatory ancap Devil's advocate, and say that Ulbircht has done nothing immoral

    Not having read it, could I draw upon your expertise and – as one ancap devil to another – kindly request an explanation for this bullshit?

    "Murder for hire" ? Twice? Really?

    I want you to be right. Please tell me why you are.

    Edit: Editing works. David you da man.

  21. Jim Tyre says:

    I screwed up:

    In Doe v. MySpace, the underlying charges were state law violations, not federal criminal law violations. 230 immunity didn't apply to the former, does to the charges (with your hypo) here.

    Damn, the new edit function is cool, but I wasn't paying attention. 230 immunity would apply to the state charges in MySpace, but not to the federal charges here.

    And, of course, Ken is right that the posts are evidence of the crime, not the crime itself.

  22. wgering says:

    The forum post merely memorializes the illegal agreement. It's evidence of the crime, not the crime itself.

    Thanks Ken, that clears things up. Small words good for my non-lawyer brain-meat.

    I was under the (obviously incorrect) impression that the narcotics trafficking charge was solely a result of Ulbricht administering SR.

    I really should wait until I have time to read everything before I ask questions. I feel shame as a minor action.

  23. eddie says:

    @SirWired – I agree with everything you've said here about BitCoin.

    About the only real use that real people are really using it for is the anonymous near-realtime internet-based funds transfer. As a currency it's a terrible failure and probably will remain so. Everything is priced in dollars and conversion is done at the time of sale.

    The really hilarious thing is that it's not actually anonymous, and to make it even kind of anonymous requires a significant infrastructure bolted on after the fact. And even the transfer part has some issues (like the impending blocksize catastrophe and the inherent latency, which you mentioned). There are other crypto-cash schemes which handle anonymity and transfer much more effectively. But they never caught on.

    Still. It works. Mostly well enough, probably. Maybe. It'll be interesting to see if BitCoin played any role in breaking DPR's anonymity. My guess is no.

    I bet we can blame that on PHP. :)

  24. Allen says:

    I read this several times and yet I remain confused. Perhaps it's because of my assumptions.

    If an accused person is charged with Federal crimes why is there a jurisdictional issue?

    My basic assumption was that any Federal Court, or US Attorney, would be a cognizant authority.

    Or, is it one giant ……. match?

  25. wgering says:

    @Jim Tyre:

    230 immunity would apply to the state charges in MySpace, but not to the federal charges here.

    Please be patient with me, IANAL.

    Do you mean the actual charges or are you still referring to my hypothetical?

  26. eddie says:

    I was under the (obviously incorrect) impression that the narcotics trafficking charge was solely a result of Ulbricht administering SR.

    Part of that administration involved taking a cut of every sale and getting insanely rich from doing so. Not that there's anything wrong with that. But I'm betting it is a crime.

  27. ketchup says:

    I'll be your obligatory ancap Devil's advocate

    Clark, in order to be a good Devil's advocate, you have to do more than make a vague provocative statement and then disappear for an hour and a half. You need to stick around and defend, or at least explain, your point.

  28. eddie says:

    Recently I explained Attorney General Eric Holder's memorandum giving prosecutors discretion to refrain from triggering mandatory minimum sentences; this is not a case where such discretion would be exercised.

    You crack me up.

  29. Brunstock Thickwad says:

    The agents showed ULBRICHT a photo of one of the sized counterfiet identity documents, which was a California driver's license bearing ULBRICHT's photo and true date of brith, but bearing a name other than his. ULBRIGHT generally refused to answer any questions pertaining to the purchase of this or other counterfeit identity documents. However, ULBRIGHT volunteered that "hypothetically" anyone could go onto a website named "Silk Road" on "Tor" and purchase any drugs or fake identity documents the person wanted.

    Hypothetically.

  30. wgering says:

    @eddie: I understand that; I chose my words poorly.

    What I should have said was: I was under the (obviously incorrect) impression that the narcotics trafficking charge was solely a result of Ulbricht providing SR as a marketplace.

    I view this as distinct from his participation in/profit from the transactions that occur there.

  31. Jim Tyre says:

    @wgering

    Please be patient with me, IANAL.

    Do you mean the actual charges or are you still referring to my hypothetical?

    No problem. Your hypo, with the further hypo that that posts weren't made by Ulbricht himself. 230 applies (when no carve out) to third party user generated content, not to content by the apparent site owner.

  32. Nicholas Weaver says:

    Actually, I found the complaint quite justifiable.

    Speaking as a practitioner of the art (including general computer security and specifically a paper on the resulting database analysis of captured bad guy sites [1]), the "by my experience" etc are all right on: given the evidence described, if I had access to the actual evidence I'd almost certainly reach the same conclusions.

    E.g. I was able to independently find the "altoid" job request posting (although the original Silk Road add posting was removed by the time I was searching for it).

    In particular, most of the complaint involves technical analysis of a captured server and other such things, so "the bank teller told me" would be "the technician told me" hearsay. To my (non-lawyer, but computer security) viewpoint, this is better.

    Finally, in the NY complaint, are they setting up to do 3 separate drug charges, one each for Cocaine, Heroin, and Meth? That would mandatory-minimum to 30 years…

    [1] I'd love to get my hands on a copy of the captured Silk Road server…

  33. eddie says:

    @wgering – I take your point. I do suspect, though, that even if DPR had run SR as a free service and had had no participation, financial or otherwise, in any specific individual transaction… the Feds would STILL have tried to bust him for conspiracy to traffic in narcotics, notwithstanding that they might conceivably have difficulty proving that "(2) the defendant knew of the agreement, and (3) the defendant intentionally joined the agreement".

    Why do I think that?

    Because I hate cops.

  34. Andromeda says:

    media says that I should lose my sleep: I bought some marijuana candies on SR like, 10 times over 2 years. Did not bother to use encription. will I be indicted and locked for 300 years?

  35. wgering says:

    @Jim Tyre:

    So 230(e)(1) leaves Ulbricht (as a "provider" of an "interactive computer service") open to criminal liability for posts by other people because those posts were evidence of a federal crime, regardless of whether Ulbricht was involved in the crime itself?

  36. Nicholas Weaver says:

    In fact, the biggest weakness of the complaint (which is not something that really needs to be answered here, but will need to be answered in court) is how the Silk Road server was discovered.

    I would suspect that, since it was imaged without being noticed that what happened is the FBI (with a warrant) hacked the site sufficient to discover the site's IP by generating a non-Tor phone-home, and then contacted the country of the hosting provider which then got the server imaged.

    Yet since the server imaging didn't involve taking the server down or disrupting service sufficient to spook Mr DPR into taking his bitcoins and running, I suspect that this was some virtual-machine hosting provider.

  37. Salty says:

    Having read the entire New York complaint, I'll be your obligatory ancap Devil's advocate, and say that Ulbircht has done nothing immoral, and the only thing that he's done that's illegal, under the Constitution, is request a murder (and that should be a state-level crime, not a federal one)

    He's requested more than just one murder. Is that defensible?

  38. eddie says:

    I agree with Nicholas Weaver's suppositions about the Silk Road server.

  39. Ben Gordon says:

    I hope you continue to provide this level of coverage as the case progresses.

    I think it is an easy bet that his laptop will yield evidence that greatly strengthens the link between Ulbrict and DPR. He was probably connected to SR at the time he was arrested.

  40. amblingon says:

    Don't ya'll know that murder-for-hire is just how the free market corrects for extortion?

    Incidentally, Clark, I'm profoundly interested in how your localism is compatible with a world in which I could hop on a plane, murder someone in California, and then fly back to Boston the next hour (or, say, Tokyo).

  41. Bernard King says:

    The weakest part of this entire case is the thin, circumstantial grounds for concluding that Ulricht is the person (or one of the persons) operating under the DPR moniker.

  42. Erik Carlseen says:

    Argh… I can't believe I'm bringing this up and this is something I would have rolled my eyes at a year ago… but… to be all tin-foil-hatty (which my computer tried to autocorrect to tin-foil-batty)… there were some stories the other month from reasonably credible sources about the NSA intercepting communications to locate people involved in the drug trade, then handing those to prosecuting agencies who would then study the subjects and reverse-engineer a case from evidence that could be obtained legally. Considering that this guy hid behind a fair amount of very good but theoretically imperfect obfuscation technology (it's surmised that with enough traffic analysis a highly popular TOR host could be uncovered, and it's also known that under certain circumstances transactions can be traced through the Bitcoin blockchain)… one wonders if this is one of "those" cases and if any doubt could be cast on the prosecution's story from that angle.

    http://www.forbes.com/sites/jennifergranick/2013/08/14/nsa-dea-irs-lie-about-fact-that-americans-are-routinely-spied-on-by-our-government-time-for-a-special-prosecutor-2/

  43. MCB says:

    Erik,

    If they built the case on "reverse engineering" illegal fourth amendment searches, then they would have put the entire case at risk. If they lied about building the case on "reverse engineering" illegal fourth amendment searches, the AUSAs would be putting their careers at risk. Consequently, I'm skeptical that they did that.

  44. Sure, Not says:

    You asked how they found it? Here's one way the FBI is finding people on TOR

    http://www.wired.com/threatlevel/2013/09/freedom-hosting-fbi/

    If that is how they found him, by planting malware, what kind of defense would he have?

  45. jb says:

    MCB,
    Prosecutors going after people for whom there is actual evidence of wrongdoing are putting their careers at risk? Seriously? When even the most egregious of railroadings of totally innocent people don't hurt their careers? Do you even read this blog?

  46. Dave Crisp says:

    SFAIAA, if you're not a representative of some level of government, there are actually only three things you can do that are directly illegal "under the constitution" rather than under some subordinate statute:

    • Treason against the United States (Art. III s. 3)
    • Keeping slaves (Am. XIII s.1)
    • Transportation of alcohol across State lines in violation of the concerned State's liquor laws (Am. XXI s. 2)

    Spot the obvious wart in that set :)

  47. Mike says:

    Erik and MCB: if the server was in another country, the 4th amendment analysis is a little more complicated.

    Ken: Could you go into a little more detail about the money laundering charge? Money laundering seems to be tacked onto a lot of federal charges that involve commerce. It's my understanding from other places that Silk Road acted as a bitcoin tumbler in order to obfuscate which bitcoins went where, and not simply that they accepted bitcoins.

  48. Clark says:

    @Ken White

    Clark:

    I take it your proposition is that it is not immoral to try to have an extortionist murdered.

    In general, no, I don't think it is moral.

    If person X, say, commits adultery in public, and person Y sees it and says to X "I gathered freely available information and took pictures while standing on a public sidewalk and am thinking of starting a blog, nudge nugdge, wink wink", I think that there is no valid reason for X to initiate force against Y.

    If, on the other hand, person X reads a thoughtcrime book in public and person Y says "I intend to put you in a cage in my basement torture dungeon for 20 years for your thoughtcrime", I think that it is morally legitimate for person X to defend himself from that enslavement with violence.

    On the gripping hand, if person X reads a thoughtcrime book in public and person Y says "I intend to call person Z and have him put you in a cage in his basement torture dungeon for 20 years for your thoughtcrime", I think that it is morally legitimate for person X to defend himself from that enslavement with violence.

    And then, on the fourth hand, if person X facilitates a sale of thoughtcrime books and person Y says "I intend to call person Z and have him put your customers in a cage in his basement torture dungeon for 20 years for your thoughtcrime", I think that it is morally legitimate for person X to defend his customers from that enslavement with violence.

    Reading the New York complaint, I see that we have the fourth situation – an extortionist is not threatening the release of information per se, but is threatening to have consenting adults caged in torture dungeons.

    Thus, I consider that the Dread Pirate Robert's most moral response is defend his customers by ordering – and paying for – the hit on the extortionist.

  49. Clark says:

    @ketchup

    Clark, in order to be a good Devil's advocate, you have to do more than make a vague provocative statement and then disappear for an hour and a half. You need to stick around and defend, or at least explain, your point.

    Sorry, Ketchup – I didn't realize that my duties here supersceded those as a host to my dinner guests or as a husband to Mrs. Clark.

  50. Clark says:

    @amblingon

    Incidentally, Clark, I'm profoundly interested in how your localism is compatible with a world in which I could hop on a plane, murder someone in California, and then fly back to Boston the next hour (or, say, Tokyo).

    First, I do not assert that voluntaryism / agorism / ancapistan is perfect, merely that it is better than what we have.

    It might very well be that in my ideal decentralized world the rate of people flying from location X to Y to kill someone would be 20% higher than it is now. Incidentally, what is the rate now? And what is the rate at which murders are solved?

    Anyway, if 500 more Americans were murdered every year, but 10 million fewer Americans were jailed every year for victimless crimes, I think that we as a society would be better off. Certainly if I were an unformed being on the far side of the Rawlsian Veil of Ignorance, I'd prefer to live in that world than this.

    Second, to address your question: how is it that phone calls placed from in California right now reach Boston or Tokyo (as per your example) ? Or for that matter, how do airplanes that launch from LA manage to land in Boston or Tokyo? Or how do bills of lading wherein corporation X in Beijing consigns a shipment of cargo containers to, say,
    APL for delivery in Oakland CA work? Or how does a person who commits vandalism (a state crime in New York) get arrested in Maryland and shipped back?

    Answer: peering agreements.

  51. Nicholas Weaver says:

    One other bit of random speculation: I almost think that its two separate, parallel investigations that might have stepped on each other's toes.

    The MD investigation seems to be undercover-investigation driven, posing as a dealer to try to get the direct participation of the DPR in drug deals (rather than just relying on a 'he's running the drug market' argument) that also ended up having a murder-for-hire component. It wouldn't surprise me if, this morning, they didn't know who DPR was, and they quickly amended the indictment once they had his identity, as there is no indication in the indictment how they discovered that Ulbricht is DPR.

    While the New York investigation seems very much forensics driven: having obtained an image of the server, and looking at scant external clues, show that Ulbricht is DPR.

    I suspect that neither did parallel construction for the fake driver's licenses, but rather that when looking at the chat logs, the NY FBI asked around and found out about it: the heat from the cops could have very well spooked their target, and with at least $3M in BTC, Mr Ulbricht was probably a big flight risk.

  52. glasnost says:

    I thank Ken for donating his time to educate me about the federal justice system.

    See, in theory, this is simple good manners and a meritable act that I just did. And I did it sincerely!

    But isn't it kind of boring in practice? Wouldn't it be more entertaining and edifying if I had some kind of argumentative criticism to offer? I don't, though, since I'm not nearly educated enough to pull it off.

    #meta #threadjack

  53. Dan Weber says:

    Simplying a bit, whoever has the crypto keys for a wallet has the bitcoins.

    For the Feds to seize bitcoins, they'd have to have _all_ the keys for a wallet. If Ulbricht had a third-party with a backup of those keys, they could transfer all the coins to another wallet despite the Feds having the keys.

    So in order to adequately seize the bitcoins, the Feds would need to transfer the bitcoins to a wallet they created.

    I'm not sure they are allowed to do that. It's probably never come up before. I can't think of an analogue, although someone else may be able to come up with one.

    (Fair warning: I haven't read the indictment yet.)

  54. Mike says:

    Nicholas Weaver: The New York complaint details over 100 drug buys by law enforcement, beginning in November of 2011 (Page 11, Paragraph 20). The investigation began far before they had imaged the server. (Server imaged July 23, 2013 (pg. 28 footnote)).

    The ID's were apparently found during a routine check of packages at the border. (pg 28 paragraph 42(a)(i)).

  55. Christopher Jones says:

    @EPWJ

    It doesn't sound like it was the technology that got him caught. Tor seems to be secure unless you own the end points (or you are the NSA, I suspect ;)), and PGP would protect anything said even if you could prove who was doing the talking. The trouble, as I understand it, is that he didn't always use TOR to access the SR server and didn't encrypt everything he sent (or sent it to undercover agents). Silk Road ran for at least a couple of years without issue and I don't recall hearing of many (any?) dealers getting busted because they were online.

  56. Skip Intro says:

    Having read the entire New York complaint, I'll be your obligatory ancap Devil's advocate, and say that Ulbircht has done nothing immoral, and the only thing that he's done that's illegal, under the Constitution, is request a murder (and that should be a state-level crime, not a federal one).

    I don't think I understand this critique. Ulbricht has not been indicted for immorality, he had been indicted for allegedly committing crimes. The only crime spelled out in the Constitution, to my best knowledge, is treason – other federal crimes are created under the government's expressed and implied powers, such as the ability to regulate interstate commerce. It seems reasonable to me that the federal government can use its ability to regulate interstate commerce to prohibit the interstate arrangement of murder-for-hire.

    Granted, I am neither an ancap nor an attorney, but if this is ancap legal criticism, I guess it is not for me.

  57. Christopher Jones says:

    @Dan Weber

    SR used a tumbler to keep the transactions anonymous. I'm under the (perhaps wrong) impression that the coins that were currently being 'tumbled' is what the feds probably have access to. In that case, they wouldn't need all of the keys, would they? Since technically, those are considered SR's coins until they send them back out to sellers/buyers. (I also have not finished reading the indictment. I'm going off other things I'm been reading about it.)

  58. Another Woman says:

    @Ken

    Thank you for my continuing citizen education. They tell me it fends off senility to learn new things.

    May I suggest devoting a section (tab at the top? If David is not too worn out by all the recent excellent upgrades!) of the blog to, say, The Popehat School of How US Law Actually Works? This would be a collection of the site's Explanatory Posts which could then be easily found. Just think! – Reporters would no longer have a good excuse for bad legal reportage. (Yes, I know they would still do it, but now it would be their own fault!)

  59. Dave Crisp says:

    @Skip Intro: If you count the Amendments, there are actually three things. See my post at 3:37.

  60. Clark says:

    @Skip Intro

    Having read the entire New York complaint, I'll be your obligatory ancap Devil's advocate, and say that Ulbircht has done nothing immoral, and the only thing that he's done that's illegal, under the Constitution, is request a murder (and that should be a state-level crime, not a federal one).

    I don't think I understand this critique. Ulbricht has not been
    indicted for immorality, he had been indicted for allegedly
    committing crimes.

    Indeed. I made two distinct points: one about morality, one about the law. Perhaps you're not interested in the first. That's fine.

    The only crime spelled out in the Constitution,
    to my best knowledge, is treason – other federal crimes are
    created under the government's expressed and implied powers

    And that is exactly the point I am making. I do not believe that under the government's expressed and implied powers, properly understood, anything he did is a federal crime.

    Granted, I am neither an ancap nor an attorney, but if this is ancap legal criticism, I guess it is not for me.

    Perhaps not.

  61. stillnotking says:

    Anyone who kept using Silk Road after the Gawker article was a freaking moron. How could you possibly not realize the feds would be all over it after that, if not before? There are plenty of other ways to get drugs on the internet, if one is so inclined.

  62. Ken White says:

    Thus, I consider that the Dread Pirate Robert's most moral response is defend his customers by ordering – and paying for – the hit on the extortionist.

    If course, the Complaint suggests that the DPR formatted Silk Road to encourage people to purchase murder-for-hire in general, not in morally limited circumstances. Similarly, he organized it to encourage people to offer hacking services, whether the target of that hacking was to be a police department to see how many dogs they shot or a political enemy because you don't like what they wrote and you're mad the state doesn't prohibit it.

    Clark, some libertarians say that one of the few legitimate powers of government is protecting us from actual force and violence (as opposed to hurty words or ideas or market problems) by our fellow citizens. Is it moral for one of our readers to hack Popehat and delete it because they don't like what you write here? Is it moral to sell such hacking services?

  63. sellew says:

    @Ken

    I've just booked one of those crime-scene level cleaning services. If you can sort your fingers out, I'd really like to hear about how the "overt step" clause works when the alleged conspiracy is with an undercover agent. (As for the sun, it gets dark early in these parts anyway.)

  64. Gah, without understanding the significance of the "redandwhite" nickname, it's not possible to make sense of how this played out.

    The "hack" by FriendlyChemist was a setup. The White Rock "murder" was a setup. The ID docs sent by "redandwhite" were a setup.

    They nailed him 'cause he trusted the provenance of that nickname. Once you figure out what it means, and why someone of his background would "figure it out" and thus place heavy trust in it, the rest falls into place.

    https://twitter.com/Baneki/status/385745957704314881

    And, no, I'm not going to explain it. Thanks, I'll pass. But it's not hard to put together. Proper respect to the Club.

    ps: no, there's no way he was running this on a damned VPS. Seriously. Perhaps he was using cpanel to manage services, too? This was a dedicated box, by definition, and someone rooted it – and imaged it – without setting off any of the IDS he was surely running. That's not FBI-level skills, fwiw. It's doable… by the TAO. Obviously.

  65. Also, the site URL in the verify follow email generated by WP is broken; see boldface below:

    To activate, click confirm below. If you believe this is an error, ignore this message and nothing more will happen.

    Blog Name: Popehat
    Blog URL: http://localhost/popehat

    Not a crisis, but one doesn't want to leak anything about WP installs as such leaks have a nasty habit of being used by attackers seeking chinks in the CMS' defenses (directory traversal 'sploits being the obvious starting point in such circumstances)…

  66. ketchup says:

    @ketchup

    Clark, in order to be a good Devil's advocate, you have to do more than make a vague provocative statement and then disappear for an hour and a half. You need to stick around and defend, or at least explain, your point.

    Sorry, Ketchup – I didn't realize that my duties here supersceded those as a host to my dinner guests or as a husband to Mrs. Clark.

    Clark, you are totally correct of course – I was just trying to be snarky about your habit of dropping vague statements that seem to imply a radical position without stating it explicitly. If I implied you were somehow derelict then I apologize.
    But Dave Crisp and I have both posted trying to elucidate what you mean by "illegal according to the Constitution", and I am still curious.
    When you are able to step away from Mrs. Clark, could you explain please?

  67. John Kindley says:

    Ken: Not speaking for Clark, but I did not get from the NY complaint that DPR encouraged or allowed the selling of murder-for-hire services. Rather, it sounds like, although I should maybe read it again, that the Feds found an instance of a vendor offering a conglomeration of general information including info on how to hire a hit man, a la The Anarchist Cookbook. As for hacking, it appears the Gov does it. It can be used for good or evil.

    As for your earlier point that he who imposes sentence should swing the sword, it certainly in this case would have been much smarter. If the allegations be true, it would appear that DPR may have started to lose his grip on the distinction between the internet and IRL.

  68. NS says:

    Yeah, I know. Look, don't blame me if you keep reading.

    Ken, I don't know what you're talking about. I love your in-depth posts.

  69. Nicholas Weaver says:

    Mike: Good point, but the undercover drug buys mentioned were just general buys from what I can tell, but the break in the NY investigation was imaging the server.

    MD was different, it wasn't just random "act like joe user and buy", it was "act like big time seller who's looking for a wholesale deal with a silk road seller"

  70. Dave Crisp says:

    @Ketchup

    But Dave Crisp and I have both posted trying to elucidate what you mean by "illegal according to the Constitution", and I am still curious.

    Oh, I know what Clark meant, I just felt like being slightly nitpicky, and pointing out the obvious incongruity between the first two points and the third.

  71. pillsy says:

    Clark:

    Thus, I consider that the Dread Pirate Robert's most moral response is defend his customers by ordering – and paying for – the hit on the extortionist.

    This really seems to be exactly the justification for the sort of violence justified by US government in the name of anti-terrorism. Sure, the horrible fate they're purporting to protect us from has more to do with being blown up than being locked in a torture dungeon, but it's not like getting blown up is going to do anybody a hell of a lot of good either. Indeed, it seems to feature not only the same justification, but many of the worst features of "War on Terror" violence, including a complete lack of due process protections for the target, the decisions being made in secret by anonymous (or pseudonymous) persons without a hint of accountability and the use of torture as a way to intimidate others into compliance.

  72. Erwin says:

    Thing is…bitcoin is a lousy currency. The deflationary aspect acts as a tax on investment and reduces its transactional utility. But, it is also preferably to many alternatives…

    ….eg….small transactions, where banks simply gouge vendors.
    ….eg….black market goods….
    ….eg….badly run fiat money.

    I see it as a niche currency. Whether or not a similar implementation could become dominant is questionable. I suspect it could, particularly is agreed upon by China and Russia after they become tired of paying the dollar tax.

    –Erwin

  73. Nicholas Weaver says:

    Silk Road "services" included "Hitman" listings. They also used to include guns and ammunition, which they spun off as "The Armory" before folding that altogether, as its hard for a black market to compete with legal sales from sites with names like "Cheaper than Dirt" (yes, a real, LEGAL Internet gun-shop by that name)).

    Black Market Reloaded (one of the competing "me-too" followons) also does guns, and there was a recent arrest of a (not very bright) criminal who was selling guns overseas.

    In general, my attitude on drugs is "Legalize it, regulate it, and tax it to death", as that's the best way to kill the crime and problems associated with illegal sales [1]. But while drugs remain illegal, stomping black markets like Silk Road is a taks that should be done.

    [1] "Save Humboldt County: Keep Pot Illegal"

  74. lelnet says:

    For what it's worth, Ken…if you didn't already know that posts like this (and the "Anatomy of a Scam Investigation" series from a while back) are the reason a lot of us keep reading popehat…well, now you do know.

    So, thank you.

  75. Nicholas Weaver says:

    Erwin: Bitcoin's irreversibility makes #1 of your use cases out. The modern financial system is predicated on "anything electronic and non-trivial in amount must be reversible" in order to enable fraud mitigation.

    Bitcoin is the opposite, it is designed to be irreversible. Thus there can never be a cheap and easy path to turn Dollars into Bitcoins, which means the real cost of a Bitcoin transaction is the cost of moving Dollars to Bitcoins, since Bitcoin is volatile enough that the recipient immediately goes the other way and turns Bitcoins back to Dollars.

    As a consequence, real-word Bitcoin transaction costs should be considered to be 5% or more, in a world where Square charges just 2.75%.

    Thus Bitcoin in the real word is only useful for either those making a political statement, merchants who don't trust their customers and therefore have a over 2% chargeback rate yet can't just say "bring cash", and transactions not supported by the credit card system, namely gambling (Satoshi Dice etc) and drugs.

  76. John Kindley says:

    "Silk Road “services” included 'Hitman' listings."

    I don't think that's true, and I would think that would have been highlighted in the complaint. If it was, I missed it. What's your basis for this assertion?

  77. ketchup says:

    Dave Crisp

    Oh, I know what Clark meant

    So what did he mean? Is he really claiming that most federal criminal statutes are unconstitutional? If so, on what basis?

  78. Nick says:

    I'd really like to clear up the timeline. Which came first? Was Ulbricht identified before the server location was discovered or vice versa?

  79. Dave Crisp says:

    So what did he mean? Is he really claiming that most federal criminal statutes are unconstitutional? If so, on what basis?

    He explains exactly what he meant in his 6:46 post:

    And that is exactly the point I am making. I do not believe that under the government's expressed and implied powers, properly understood, anything he did is a federal crime.

  80. Nicholas Weaver says:

    Page 10 of the complaint.

  81. cpast says:

    Clark: Do you consider hiring a hitman in another state to commit a murder not something within federal jurisdiction? To my eyes, this is exactly a regulation of interstate commerce – hiring someone in another state being interstate commerce, and the federal government is just saying "XYZ interstate commerce is illegal". If this doesn't fall under "interstate commerce", what would?

  82. Ken White says:

    Though Paragraph 25(b) suggests that DPR exercised control over categories, and though the "services" category includes hitmen, it appears the complaint does not reference a separate "hitmen" category. It does have one for forgeries. My mistake if I implied otherwise.

  83. John Kindley says:

    Page 10 of the complaint supports my recollection described above: the Feds found one listing, i.e., one vendor, purporting to offer lists of black market contacts, including a purported list of hit men. That's a little different than a mere Anarchist Cookbook, but it's a lot different than a Hitman services category on the site.

  84. eddie says:

    While I'm not an SR expert, I've read a bit about DPR and his public statements about philosophy, anarchy, libertarianism, and so forth, as well as some statements about the kinds of things he did and did not want traded on SR.

    I seem to recall that murder-for-hire was one of the things that he did NOT want traded on SR.

  85. PonyAdvocate says:

    Clark's comments justifying murder seem to be rooted in his extreme libertarianism. Many intelligent persons passed through a libertarian phase, often around the time they were college sophomores. Most of them, instead of stopping there, continued to grow, and became mature adults. Clark's comments approving murder are a good example of why such adults regard extreme libertarianism, as a philosophy, to be puerile.

  86. Ken White says:

    When does the smug douche stage kick in?

  87. Clark says:

    @PonyAdvocate

    Clark's comments justifying murder seem to be rooted in his extreme libertarianism.

    I don't justify murder; murder is unjustifiable.

    I justify the legitimate use of force in defense of innocents against a violent aggressor.

  88. Clark says:

    @cpast

    Clark: Do you consider hiring a hitman in another state to commit a murder not something within federal jurisdiction? To my eyes, this is exactly a regulation of interstate commerce – hiring someone in another state being interstate commerce, and the federal government is just saying "XYZ interstate commerce is illegal". If this doesn't fall under "interstate commerce", what would?

    I think that is legitimately under federal jurisdiction. I called that out in my very first comment.

  89. amblingon says:

    I don't know, Ken, but in response to "taking out a hit on someone is totally fine" I'm pretty sure 'smug douche' is the kindest of all possible responses.

  90. Clark says:

    @ketchup

    Clark, you are totally correct of course – I was just trying to be
    snarky

    No problem; I'm a connoisseur of suck.

    elucidate what you mean by "illegal according to the Constitution", and I am still curious.

    The short version is that I think that Wickard v. Filburn was incorrectly decided (see also the slaughter house cases).

    I think that there was a silent rolling judicial coup between 1890 and 1940 and we live under an illegitimate corrupt nearly-totalitarian government.

  91. Clark says:

    @amblingon

    I don't know, Ken, but in response to "taking out a hit on someone is totally fine" I'm pretty sure 'smug douche' is the kindest of all possible responses.

    Now you know how I refer to your president.

    Here's the 16 year old American he murdered:

  92. pillsy says:

    @Clark:

    I just don't see why it's terrible when the US government does it in the name of protecting its citizens, and fine when it's a drug dealer doing it in the name of protecting his customers.

  93. PonyAdvocate says:

    @Ken White

    When does the smug douche stage kick in?

    When the audience is larger than can fit comfortably in a dorm room, perhaps?

  94. PonyAdvocate says:

    @Clark

    I don't justify murder; murder is unjustifiable.

    I justify the legitimate use of force in defense of innocents against a violent aggressor.

    Of course, you justify murder, if you're using the word as is commonly understood both legally (except maybe in Florida) and in everyday discourse. If you're using a non-standard definition of the word "murder" (not to mention "legitimate", "defense", "violent", and "aggressor"), you owe it to your interlocutors to make your non-standard definition(s) explicit.

  95. Erwin says:

    @Nick
    #1: a 5% transaction fee is a lot less than I spend sending a few hundred dollars internationally.
    And also a lot less than people experience in _badly_ run fiat money systems – which I'd characterize as having over 100% inflation yearly.
    So, even though you're correct about bitcoin not being useful for large transactions because of lack of reversibility, it still fills a niche.
    –Erwin

  96. MCB says:

    jb,

    Yes. Particularly in a high profile case. The issue isn't going after people on little evidence, they can do that without much consequence. The issue is (a) lying to the court and (b) failing to turn over exculpatory evidence. That absolutely has ended people's careers. See Ted Stevens case.

  97. Skip Intro says:

    Clark, thank you for the reply. I think the heart of my confusion is here:

    And that is exactly the point I am making. I do not believe that under the government's expressed and implied powers, properly understood, anything he did is a federal crime.

    I tried to summarize my layman's understanding of how a federal law against using the internet to arrange a murder for hire made sense to me. I'd love to see an explanation of the understanding that speaks to the contrary.

  98. David C says:

    I think that Wickard v. Filburn was incorrectly decided

    The one where a farmer growing wheat he used himself was declared to be engaging in "interstate commerce"? The average person who thinks that was RIGHTLY decided would ignore it anyway, since they think the "general welfare" clause means the government can do literally anything that doesn't violate one of the three or four amendments they actually like. (And no, the 10th is not ever on their list, they pretend that one doesn't exist.)

  99. MCB says:

    @mike

    I don't know what the Fourth Amendment analysis is in this case. The speculation appeared to me to be that they tried to avoid the Fourth Amendment problems by "reverse engineering" the case. That strikes me as a terrible idea, and I doubt the US Attorneys in the SDNY would be that irresponsible and stupid.

  100. Ken Hamer says:

    Grand Jury? What the hell is that?

    Ok, so I'm a foreigner and all that, so it's probably no surprise that I have no idea what a/the Grand Jury is, in spite of repeated references on TV, in movies, and in the news. It seems to be some type of particularly evil Star Chamber.

    But when I talk to my many American friends and colleauges, they too seem to be mostly in the dark about it/them. To be certain some talk confidently about it, but that's not the same as knowingly. In general, they seem to be every bit as clueless about them a I am.

    So a request… how about a similar in depth post on the who what where when and why of Grand Juries. I think we'd all be better informed.

  101. cpast says:

    @Clark

    I was responding to this comment, where you said that

    And that is exactly the point I am making. I do not believe that under the government's expressed and implied powers, properly understood, anything he did is a federal crime.

    as well as your bit in the first comment saying it should have been a state-level crime, not federal. I'm sort of confused how trying to arrange a murder in another state shouldn't fall under federal jurisdiction.

    Also, which state's laws do you think should apply in that kind of case? Could a state legitimately charge him with an offense, or would it have to be federal (since the murder would have happened in another state)? Or would it have been a Maryland charge, under your logic?

  102. Rich Rostrom says:

    Ken Hamer • Oct 3, 2013 @12:38 pm

    Grand Jury? What the hell is that?

    Long answer.

    Short answer: a panel convened to issue (or not issue) indictments. It has more members than a trial jury, sits for a period rather than a case, and is led by a prosecutor. A GJ may have investigative powers and can compel witnesses to appear and testify. Only the prosecutor presents evidence, and proceedings are sealed.

    GJs generally do whatever the prosecutor wants. It's said that any competent prosecutor can get a GJ to indict a ham sandwich.

    GJs are only used in US federal law and about half the states. They were a feature of English law, and were formerly used in England and parts of the Commonwealth.

  103. Duane R. Olson says:

    A Treatise of
    Corruption and Criminal Fraud!
    October 03, 2013 by Duane R. Olson

    Having done so for more than two hundred years, both Houses of the US Congress presumably know how to write a legal federal criminal statute that will pass constitutional-scrutiny by the US Supreme Court. Yet this was not the case when it came to so-called “laws” regarding substance abuse.
    It appears that President Richard Nixon was instrumental in skewing and cloaking the outcome when he emphasized that; “you have to face the fact that the whole problem is really the blacks…the key is to devise a system that recognizes this while not appearing to do so”.
    Few would argue that the abuse of tobacco, alcohol, aspirin, drugs, narcotics, or the abuse of anything else for that matter, serves as beneficial to the abuser. Webster’s Dictionary defines abuse as “to use wrongly or improperly”. The word abuse is also an oxymoron for the phrase “use as directed”. The primary responsibility of whether or not to abuse anything lies within the realm of the sovereign individual.
    Hundreds of thousands of men and women have been arrested, prosecuted and convicted, and their freedom and liberty denied, by the Executive and Judicial branches of the US government under color of corruption and criminal fraud.
    The central government of the United States has absolutely no enumerated power, identified in Article I., Section 8., of the Constitution, for federal jurisdictional authority over ‘any person’s’ conduct to either smoke tobacco or weeds, drink alcohol or bleach, or put a needle in their arm and ‘shoot-up’ with heroin or chocolate-chip cookies. That responsibility lies with the sovereign individual.
    It would legally and constitutionally require an Amendment to our Constitution for self-government by “WE, the people” to PROHIBIT, FORBID, or make it a FEDERAL-CRIME for ‘any person’ to play Superman and leap from a tall building or try to stop a speeding train with their bare hands. That again, is one of the many responsibilities of the sovereign individual.
    It is essential that the reader understand that this essay does not claim that the Controlled Substance Act itself is unconstitutional. But it is both illegal and unconstitutional to apply the Act to arrest, prosecute, convict, and punish “any person” not registered for federal jurisdiction, to be federally regulated in the closed commercial system of controlled substances by the Executive and Judicial branches of the US government.
    For over forty-years, hundreds of thousands of men and women have been arrested, prosecuted, convicted, imprisoned, and have had their cash and real assets confiscated as “any person” NOT REGULATED for conduct alleged, admitted, or found, to be; “[i]n violation of Title 21, United States Code, Section 841(a)(1)”.
    Careful research and analysis of the bifurcated, cryptic statutes of spurious words utilized by the authors of the COMPREHENSIVE DRUG ABUSE PREVENTION and CONTROL ACT of 1970 reveal that:
    The punishment prescribed by the Ninety-First Congress for conduct in violation of Title 21, United States Code, Section 841(a)(1) is found at Title 21, United States Code, Section 841(b) which specifically and with purpose of intent, restricts, reserves, and limits its prescribed punishment to:
    1. “[a]ny person who violates subsection (a) of this section” referencing Title 21, United States Code, Section 841(a)(1) and;
    2. “(a) Except as authorized by this subchapter” referencing the “Authorized activities” in Title 21, United States Code, Section 822(b) and;
    3. “Persons registered by the Attorney General under this subchapter…are authorized to possess, manufacture, distribute, and dispense such substances
    4. …to the extent authorized by their registration” referencing Title 21, United States Code, Section 821 and;
    5. “The Attorney General is authorized to promulgate rules and regulations…relating to the registration and control of the manufacture, distribution and dispensing of controlled substances” for regulated persons and regulated transactions, thus:
    “any person” NOT REGISTERED by the Attorney General for federal jurisdiction to be federally regulated in the closed commercial system of controlled substances is;
    S T A T U T O R I L Y E X E M P T
    from the ambit of federal jurisdictional authority to enforce the OFFENSES and PENALTIES of Title 21, United States Code, Section 841 upon “any person” not regulated.
    To be precise; the Controlled Substance Act of 1970 IS NOT A FEDERAL CRIME against the “laws of the United States” but rather, the Controlled Substance Act of 1970 is A UNITED STATES REGULATION.
    In other words, federal jurisdictional authority to arrest, prosecute, convict and punish any person whose conduct is alleged, admitted, or found to be “[i]n violation of Title 21, United States Code, Section 841(a)(1)” comes not from any language in the Eighteen Enumerated Powers of the Constitution’s Article I., Section 8., but rather:
    Federal jurisdictional authority to arrest, prosecute, convict, and punish any person whose conduct is alleged, admitted, or found to be: “[i]n violation of Title 21, United States Code, Section 841(a)(1)” comes from a real and binding contractual agreement where money changed hands between the registrant and the Attorney General, creating privileges, obligations, and liabilities, to possess and distribute controlled substances.
    Further, Nixon appointed Lewis F. Powell to the Supreme Court to finish the “corruption and fraud” by penning his constructive implication to the unanimous applause of the entire BURGER Supreme Court that the isolated and truncated phrase “any person” in Title 21, United States Code, Section 841(a) “By its own terms…reaches any person” apparently on this planet or in outer-space, since the statute in question identifies no boundaries of federal jurisdiction.
    Not content with his own constructive implication, Justice Powell then penned his own conclusion of law that: “§841 was reserved for prosecution of those outside the legitimate distribution chain [and] the severe penalties provided for in §841(b) [are] for those seeking to avoid regulation entirely by not registering”!
    There is not one syllable of language in the Legislative History of the Controlled Substance Act that even suggests, much less mandates, that “the severe penalties provided for in §841(b) [are] for those seeking to avoid regulation entirely by not registering”!
    The significance is clear as to the full meaning of the statement in Halderman’s diary attributed to Nixon; “The key is to devise a system that recognizes this while not appearing to”.

  104. lokiwi says:

    @wgering

    The problem with your hypothetical is that Silk Road could not and would not have existed without DPR's financial participation in the drug trades. SR's main function wasn't to be a forum, but to be a reliable escrow service in an otherwise untrustworthy industry. Without the escrow function, there would be no reason for SR to exist.

  105. Gordon Mohr says:

    I think Dan Weber's point about the difficulty of reliably 'seizing' Bitcoin needs more emphasis.

    Even if the Feds have acquired SR's private keys, they can't know for sure that other copies of those keys don't exist elsewhere. A confederate, next-of-kin, or even completely automated 'dead man switch' could transfer those funds away. If a dead-man-switch was preloaded with archived customer balances, it could even issue automated refunds. Only transferring the balances to keys exclusively controlled by the Feds will keep the funds 'seized'.

    And that would leave a public record in the blockchain. I've seen a particular transaction alleged as DPR's hitman payoff. (4a0a5b6036c0da84c3eb9c2a884b6ad72416d1758470e19fb1d2fa2a145b5601). Any recent transactions for around 26,000 BTC?

    Could a FOIA request be used to learn the *public* addresses used by FBI/DoJ for holding seized balances? At some point, the addresses involved (DPR's and thus also indirectly FBI's) will likely be submitted in evidence, when the claim of 26,000 seized is substantiated.

  106. Aaron S. says:

    The New York complaint says that undercover agents have made more than 100 purchases of illegal drugs through Silk Road.

    I'm sure this is true, but I wonder if they made any purchases related to an investigation of Silk Road.

  107. Chris says:

    Reading the New York complaint, I see that we have the fourth situation – an extortionist is not threatening the release of information per se, but is threatening to have consenting adults caged in torture dungeons.

    Thus, I consider that the Dread Pirate Robert's most moral response is defend his customers by ordering – and paying for – the hit on the extortionist.

    What evidence do you have that the 'extortionist' was 'threatening to have consenting adults caged in torture dungeons'?

    More to the point, what evidence did the Dread Pirate Roberts have when he put out the hit? According to the indictment, the Dread Pirate said "now that he's been arrested, I'm afraid he'll give up info" and "considering his arrest, I have to assume he'll sing."

    Is fear that someone might do something sometime in the future enough to make killing him moral? Is it moral to kill someone because you assume that that if you don't kill them they'll do something to justify it?

  108. wgering says:

    @lokiwi: I understand that; my hypothetical is intended to help me understand Section 230 w.r.t. federal crimes in general.

    Perhaps it's best if I divorce it from reality entirely:

    Suppose I run a blog that discusses the finer points of Bronie fanfic. However, some people use the comments section of my blog as a means to communicate with each other about the sale of illegal drugs, the result of which is that sales do indeed occur between said parties.

    As I understand it, I could be held criminally liable under 230(e)(1) for these comments because they are evidence of federal crimes.

    I am wondering if this is a correct interpretation of 230.

  109. melK says:

    > or the agent claims he consented

    Of course he consented! We gave him diesel therapy (ala George Hansen) until he consented!

  110. Mitsugi says:

    Is fear that someone might do something sometime in the future enough to make killing him moral? Is it moral to kill someone because you assume that that if you don't kill them they'll do something to justify it?

    If it's okay to kill someone who might get you sent to prison as long as it's for selling drugs, how many pro-Prohibition politicians and activists was it okay to kill 100 years ago? I mean, their actions led to a lot of people going to prison for drinking, and the prisons were worse in 1927 than now, no?

    Heck, let's say the libertarian paradise magically arrives. Is it then the "most moral" option to whack anyone who agitates for, say, democratic socialism because they might succeed? I mean, then all sorts of things that one might find perfectly acceptable would get people sent to prison. What if their movement starts really gaining support?

  111. Clark says:

    @Mitsugi

    If it's okay to kill someone who might get you sent to prison as long as it's for selling drugs, how many pro-Prohibition politicians and activists was it okay to kill 100 years ago?

    All of them.

    I mean, their actions led to a lot of people going to prison for drinking, and the prisons were worse in 1927 than now, no?

    Yep. Exactly.

    Heck, let's say Clark's libertarian paradise magically arrives. Is it then the "most moral" option to whack anyone who agitates for, say, democratic socialism because they might succeed?

    Arguably.

    This is why I celebrate Pinochet as a hero who saved his countrymen from gulags.

  112. pillsy says:

    @Clark:

    If this is a clever rhetorical gambit to get people arguing that this guy's conduct is unacceptable for all the reasons you usually say that state violence is unacceptable, I have to say it's been brilliantly played.

    If it's not a clever rhetorical gambit, though, then WTF?

  113. Ed says:

    In this case the judge, prosecutor, and plaintiff all work for the so called "government". Therefore, the defendant cannot be guaranteed a fair hearing. End of story.
    Side note: People who initiate threats of violence should expect the possibility of being killed. The defendant did not initiate threats of violence, but did receive threats of violence. Therefore, there can be no charges of murder or attempted murder.

  114. glasnost says:

    This is why I celebrate Pinochet as a hero who saved his countrymen from gulags.

    Either this is a joke, or you are a deeply ignorant fantasist with deeply rooted problems of self-delusion and the dishonest and immoral justification of reprehensible acts.

    This is why Ken is so interesting, because I keep looking and I have yet to find that he believes any of these twisted and way screwed up things. Most libertarians, when you scratch them, turn out to be people living in their own universe of fantasy exemption from real consequences, and even small-c conservative 'do no/minimal harm' ground truth – in short, damaged goods – just like as revealed here.

  115. glasnost says:

    I don't justify murder; murder is unjustifiable.

    I justify the legitimate use of force in defense of innocents against a violent aggressor.

    Your definition of 'violent aggressor' seems to be kind of wildly detached from reality in a way that only serves as an exemplary reminder of why, for societies, letting random people decide what this word means really doesn't work out well for anyone involved.

  116. glasnost says:

    I can't seem to post a live link, so I'll post a dead one and excerpt it here with the benevolent assumption that this is not off topic, nor so lengthy as to be troll-like behavior.

    http://www.independent.co.uk/news/victims-of-pinochets-police-prepare-to-reveal-details-of-rape-and-torture-

    AS THE legal battle over the fate of Augusto Pinochet, former dictator, life senator and alleged mass murderer, reaches its climax in the House of Lords this week, few will be watching with more interest than Christina Godoy-Navarrete and Sara De Witt.
    They are among four former political prisoners of the Chilean military junta who have asked the Attorney General to charge General Pinochet with torture and kidnapping. What happens to that, as well as the extradition request for him from Spain, will depend on whether the Law Lords decide that the general has immunity from prosecution as a former head of state.

    Ms Godoy-Navarrete and Ms De Witt, both now settled in London, know that any future legal action would force them to make public details of the brutality and sadistic sexual degradation to which they were subjected by General Pino-chet's secret police.

    Ms Godoy-Navarrete, a consultant clinical scientist, and Ms De Witt, a social worker, took their decision after talking at length to their families, fellow victims and friends. It involved having to tell their children fully for the first time what they had gone through.

    When General Pinochet overthrew Salvador Allende's democratically elected government in September 1973 the women were student activists aged 20 and 22. Ms Godoy-Navarrete was arrested shortly afterwards. Hundreds had already been killed, but she was comparatively lucky, released after being beaten and given electric shock treatment. Ms De Witt escaped the first wave of arrests.

    But with the creation of the secret police force, Dina, and their specialist torture centres came a new sweep. Ms Godoy-Navarrete was picked up in December 1974 and Ms De Witt a few months later. They ended up in two of the most notorious of the torture houses, Jose Domingo Canas and the Villa Grimaldi. Their families did not know where they were. Ms Godoy- Navarrete's husband, Roberto, also wanted, was in hiding.

    Prisoners at both centres were subjected to electric shocks, severe beatings, suspensions from ceilings until their wrists tore, and rapes.

    Ms Godoy-Navarrete recalled: "The torture took place daily. We would be blindfolded, strapped to beds and then it would begin. There were electric shocks administered to all over our bodies, and then there would be a rape.

    "Although we were blindfolded we found ways of taking a look. In particular, some of the women including, myself, recognised one of the men who raped us. He is still in Chile, he is free. The living conditions were awful. There was just one toilet for over 100 people. Instead of toilet paper we were given pages from books by writers and philosophers to use. The secret police wanted to show their contempt for ideas. They thought ideas were dangerous.

  117. Ken White says:

    This is why I celebrate Pinochet as a hero who saved his countrymen from gulags.

    That one made me throw up in my mouth, whatever it's meant to be.

  118. Ken White says:

    @Clark

    All of them.

    Question.

    I am walking down the street and observe you engaging in a mutually voluntary exchange of money and cocaine. Assume you and I both believe this should not be illegal.

    You're charged with drug dealing.

    The prosecution wants to call me as a witness.

    1. Do you believe I am morally obligated to refuse to testify and go to jail for contempt? Or am I morally obligated to lie on the stand? How do I choose, morally, which of those options I am obligated to do?

    2. If I decide I won't risk jail and that I will testify truthfully about what I observed, are you morally entitled to hire someone to murder me?

    3. What if you don't know what I am going to do? What if I don't know yet? are you morally entitled to hire someone to murder me just in case? How late in the game, morally, do you have to wait for me to make up my mind?

  119. Lizard says:

    So, Clark, he says, knowing he will regret this… some hypothetical on this murder vs. killing thing.

    I let my home-made tzatziki sit a few days too long, and have become, hypothetically, quite mad from spoiled yogurt. I start reading Daily Kos non-ironically and conclude that it is moral to torture people for 20 years for thoughtcrime. I decide to report you to the authorities for thoughtcrime. I do not extort you or demand anything; you just find out I'm going to do it. My motive is my moral conviction you're a bad man who thinks bad thoughts; I will receive no remuneration other than the glow of self-worth that comes from being a good person who sees that bad people get what they deserve. Is it moral to kill me before I can tell the authorities?

    If I discover you plan to kill me, is it moral for me to hire someone to kill you first?

    You've commented many times that you're a believing Catholic. Catholic doctrine is that a fertilized egg is human, with all human rights. Is it moral to use deadly force to prevent abortion? Would it be moral, if I knew a woman was planning to have an abortion, and could not kill the doctor who would perform it, for me to kidnap the woman and hold her in my not-torture dungeon, until the child was born, at which point, I would free her?

    Would it be moral for someone to kill me to prevent me doing this, assuming no lesser force was possible?

    I didn't say "legal" anywhere above. I said "moral".

    (Personally, I have no moral objections to adults buying or selling any drugs, or using any agreed-upon form of currency to do so. Ending the "war on drugs", medicinal as well as recreational, would save millions of lives. My main objection to Silk Road, et al, is that most of the money used on it is stolen money, which IS immoral. On a purely personal level, the more profitable it is to be a cybercriminal, the more spam, phishing, gold farmers, phone calls from Peggy who tell me my computer has a special virus, oh no, it is very bad one indeed, and we must be fixing it, etc. This wastes my time and annoys me, and that IS a killing offense. Silk Road enables spammers. That's crime enough for me. If I were judge, jury, and executioner, everyone in the chain of commerce that ends up with me getting a "Ur akount in game u dont owen haz bin hakked plx logg in 2 fix kthxbai" email would be fed into woodchippers feet first. But that's just me. I'm shallow and petty — and self-aware enough to recognize that's part of why I'm not generally allowed to decide for myself who gets to get shot. The bullet cost alone would bankrupt me.)

  120. Ken White says:

    On the other hand, in the interest of balance, and to avoid piling on Clark, I give you these government actors.

  121. Lizard says:

    All of them.

    So, to be clear, you're arguing that it is moral to use violence against people expressing ideas which you believe might lead to violence.

    So, on what basis do you oppose hate crime laws, other than that they're enforced by the state? Would you say it would be moral for private, non-state-funded, anti-racist activists to use deadly force against those who express ideas which they (the activists) sincerely believe could lead to violence? This is, after all, the standard argument — that someone speaking in a way that might justify a crime could lead to someone else committing that crime, and preventing them from speaking thus prevents a crime. Likewise, I must assume you consider the killing of pro-choice advocates to be justified. Taken not too far to the extreme, if I told a pregnant woman, "I think it would be a good choice for you to have an abortion, given your current life circumstances and the consequences of not doing so", you would find it moral to kill me, to prevent me from advocating what you consider to be a violent act against a human being.

    I support your right to advocate these ideas, of course, without being threatened with violence. Your unwillingness to extend that same courtesy to me is irrelevant to that. I do wonder, however, on what grounds you call yourself any flavor of libertarian, since you advocate the initiation of force against those who have merely expressed ideas about the circumstances under which the use of force could be justified. ("I believe people should not be allowed to drink!" is an idea. When you respond with "People might heed that idea, and then use force. I'll just shoot you now to prevent that." you remove yourself from any brand of libertarianism I have ever heard of. Have you considered left-anarchism? Breaking eggs, making omelets, that sort of thing?)

  122. Lizard says:

    @Ken: They were acting to prevent a hypothetical future use of force. Any use of lethal force NOW is justified to prevent some possible future use of force, per Clarkism.

    Detroit barrister Thomas Lavigne, who works on cannabis issues, was blunt.

    He he. "blunt". Heh.

  123. pillsy says:

    I'm actually kind of consumed by curiousity over why firing someone for expressing views you disagree with is so deeply problematic, but firing a gun at someone for expressing views you disagree with is not so bad.

  124. Lizard says:

    @Pillsy: The uncharitable might suggest it has something to do with whether one believes one is likely to be on the giving end or the receiving end. (As it turns out, this determines people's positions on all manner of things, including positions, if you know what I mean, wink wink, say no more.)

    If, for example, one might postulate the thought process runs like this: "People who tend to agree with me tend to own guns; people who tend to disagree with me tend to conduct boycotts; therefore, I support the use of guns to establish social norms, but not the use of boycotts."

    But, as I noted, that would be uncharitable, and I am as charitable as I am athletic.

  125. David says:
    This is why I celebrate Pinochet as a hero who saved his countrymen from gulags.

    That one made me throw up in my mouth, whatever it's meant to be.

    Ken, dude…. You need to get with the pogrom!

  126. John Kindley says:

    It would be awful if the so-called "tyrant" of Eumeswil (a 1977 novel by my hero Ernst Juenger), the Condor, who like Pinochet overthrew the previously reigning "democratic" "tribunes" in a military coup, was named after the Operation Condor so infamously associated with Pinochet. But unless Juenger was himself directly involved in the implementation of Operation Condor or psychic the dates are off, as Operation Condor was clandestine and implemented in 1975. Moreover, unlike Pinochet, the Condor of Eumeswil tolerated a lot of dissidence.

    Pinochet strikes me as the most vulgar of all "vulgar 'libertarians.'"

    The smidgen of truth in Clark's ill-advised invocation of Pinochet is that "democracy" is in fact illegitimate and dangerous. (A large part of its danger is that it purports to confer a legitimacy that is in fact illusory.) The governing are not morally obligated to cede power, or even a vote in government, to, e.g., communists, even if the communists are a majority. On the other hand, prudence and justice dictates that as many as possible be admitted to the ranks of the governing, and have a say in government, so long as those admitted intend only what is within the bounds of the moral law.

    The governing are ultimately judged by their justice. The rock-bottom principle of justice is the Presumption of Innocence (and its corollary, the Rule of Lenity). A government like Pinochet's that feels the need to imprison and torture dissidents, even if those dissidents espouse pernicious and dangerous ideas like communism or democracy, has lost all legitimacy.

    As for how to deal with snitches: there's a big difference between an innocent bystander witness and a former partner in crime. I'd hope that I'd have the fortitude to do 6 months in jail for contempt for refusing to testify, even against a total stranger I saw engaging in a peaceful and voluntary transaction. But if I was that stranger I don't think I'd have a right to inflict harm on an innocent bystander who was going to testify against me. (But what if instead of a modern drug deal we're talking about an "innocent" witness in Nazi Germany who's about to give up the hiding place of Jews, or an "innocent" witness in pre-Civil War America who's going to give up escaped slaves.) A betrayer, a former partner in crime, is a different story, as is a blackmailer. I've read a reference somewhere, which was news to me, that, besides the blackmailer, DPR planned to have a former employee of his whacked simply because that former employee had been arrested and DPR feared he was "likely" to snitch, without knowing for sure he was going to snitch. That, of course, would be completely unjustifiable, and if true, would make me think DPR deserves everything he's likely to get.

  127. lokiwi says:

    @wgering
    I don't think there would be any criminal liability under your hypothetical. 230(e)(1) wouldn't provide a safe harbor, but you wouldn't be breaking any other federal laws. There has to be some kind of intent to aid to get you as an accomplice, and that intent doesn't exist in your hypo.

    It's not perfect (because it's a civil case), but I think the Napster case is a good analogy. The liability was based on the fact that Napster was designed to be used for illegal activity. If you hosted a Bronie forum, and simply didn't police it closely, you shouldn't be any more liable than the owner of a food court where a drug deal takes place. If you hosted a forum expressly for the purpose of users making anonymous drug deals, you would be in trouble.

    The interesting question is when the line is crossed. If your Bronie forum became completely overrun with drug deals, and you still did nothing, you are probably toeing the line of criminality.

  128. amblingon says:

    "This is why I celebrate Pinochet as a hero who saved his countrymen from gulags."

    You know, when your politics are so fucked up nobody can tell if this is a joke or not, you're doing something wrong.

  129. Lizard says:

    @amblingon: FWIW, I often run into articles on Salon, Slate, and others of their ilk where I have no clue if the article is brilliantly Swiftian satire or is actually what the author believes. I need little South Park style subtitles. "THIS IS WHAT THE AUTHOR ACTUALLY BELIEVES".

    (There's also the case of Schrodinger's Satire. A controversial post is both sincere and satirical until the author sees the feedback. If it is mostly positive, the article was sincere. If it is mostly negative, it was satire. Until then, it is in a state where it is both and neither. The truly skilled can declare to one audience that it was sincere,and to the other that it was satire, and be confident that so many people are locked into echo chambers that there's no audience crossover.)

  130. Mr. Wow says:

    By what authority does the US have to confiscate money BTC from those in foreign countries. I know nothing about laws but it seems there should be a federal law suit filed to find out how they can confiscate monies without due process from citizens of the world.

  131. dontfeedthetrolls says:

    Clark is a disturbed individual. Pro-murder, pro-Al Qaeda, pro-Pinochet. I bet he even likes Rand Paul?

    LOL.

  132. 494142 says:

    So, hundreds of comments later…. And much commentary later.

    The GCHQ and NSA documentation indicated less stupid people, luck, exploits which TOR or others can recognize and fix…. For the most part TOR is somewhat safe, correct?

    So specifically was he caught? will we have to wait to his trial? Will it be "sealed"? Will we know sooner? Do we know now?

  133. Trent says:

    It will be interesting how the Fed's explain how they found the server. Like other posters I'm willing to bet that the NSA was involved in a "parallel construction" incident. I'd like to see some prosecutor and cops taken to the wringer for these "parallel construction" incidents.

    We know they exist and have occurred through the snowden leaks and we know they were using them for Drug interdiction because that was the example in the training literature. This case screams of illegal NSA searches that are then used to find secondary evidence to back justify. I think people should be in jail for this just like I think there should be NSA agents in jail for taping their wives and girlfriends and all the other abuses we KNOW are occurring.

    DPR probably deserves to be in jail but if one iota of the evidence used to find him came from the NSA everyone involved in the investigation should be fired and/or jailed.

  134. Nicholas Weaver says:

    I actually bet that the feds have a pretty easy explanation: They got a warrant to install, using whatever technical means required, an implementation of a Computer and Internet Protocol Address Verifier, aka a small piece of code that pretty much just gather some information about the host (hostname, MAC address, private IP address) and sends the results back to the FBI.

    Its hacking and spyware, but its remarkably limited hacking and spyware: only gathering the necessary information for the FBI to then talk to the (Latvian/Icelandic/Malaysian) local authorities to get a image of the server itself.

    In general, even for the NSA, it would be far easier to hack the silk road webserver rather than trying to detect a hidden service under Tor.

  135. different Jess says:

    This episode calls to mind a rule of thumb, much like "if you're arrested, shut up". Even if one is convinced one should hire a hitter, if the only hitter available was sourced online, one shouldn't.

    Something to keep in mind, Clark!

  136. rollingdany says:

    "This affidavit isn't as bad as, say, the Zimmerman affidavit, but it's pretty bad — it relies on generic "based on my knowledge" and "based on my familiarity" and "based on an analysis" statements rather than more specific statements."

    As a non-legal-expert and a non-english-native I thought the affidavit was pretty well written.
    All the technical parts about what are Tor, Bitcoin, Silkroad… are very clear and understandable.
    I appreciate the fact that he says "in my experience". It means it's something he has checked by himself instead of a hearsay that might not be true or not totally accurate. Basically, what he says is "Mr Judge, stackoverflow is a website where computer programmers ask for help. If you don't trust me go and see by yourself and you'll see I'm right."

    I agree with Nicholas Weaver.

  137. PonyAdvocate says:

    Ken White said

    to avoid piling on Clark

    Clark may deserve a pile-on. I very much doubt that any genuine libertarian would approve of Pinochet. Conceivably, Clark said this simply in order to call attention to himself, or to troll. If he sincerely believes what he said about Pinochet, I think he's flirting with genuine evil.

  138. PonyAdvocate says:

    @Clark

    Add this to Ken White's list of hypotheticals:

    4. Mr. White is walking by with his [hypothetical] six year-old daughter when he witnesses your drug deal go down. He hates drug dealers, and yells at you, "I'm gonna rat you out to the cops, you drug-dealing scum!" Because he is almost certainly likely to cause your incarceration, you pull out your .38 and (to you, justifiably) shoot and kill him. The daughter does not witness the drug deal (let's say her back was turned), but she does witness your shooting her father. For some reason (let's say your acquainted with the White family), you know that she is precocious and observant, and she would be an unimpeachable and sympathetic witness to the homicide if you were tried. She is, therefore, likely to cause your incarceration for what is, to you, a justifiable act. Are you justified in now killing the daughter?

  139. mike says:

    what was with the cynical comment at the beginning of the article.I guess it went over my head.

  140. Drew says:

    Legalization would end all of this practically overnight and by that I mean everything. I know a lot of people don't like that view, but as long as alcohol is legal my view will remain.

    Drug cartels
    -They murder men, women, & children to protect their empire.
    –Out of those murders the majority are unthinkably gruesome to instill fear.
    -They extort, kidnap, or anything else that leads to profit.
    Drug dealer related murder,violence, and extortion – No more
    Drug carrying charges that lead to prison – No more
    -We spend absurd amounts of cash to keep people that has committed victimless crimes in prison.
    DEA – No need
    Taxes – We'd be out of debt overnight. /s
    Just like alcohol we can still punish people who break the law.

    Yes I'm an addict and I always will be and if there was no Methadone clinic I'd still be using illegal narcotics. I'm not saying that's a good thing, but for me it is. I was always missing something in life and I don't even know what it is, but narcotics fill my void and allow me to function normally.

    Drugs saved my life when I was on the brink of self destruction. I went about these issues the correct way at first trying so many anti-depressants that often made things worse then I tried suicide. "Luckily I'm not very good at it."
    As for the drugs themselves it was a complete accident caused from a severe sunburn. "The kind that ends with puss and blood."
    I was handed a Vicodin hoping it would end the pain. Yes it worked as advertised, but something incredible happened as well. My depression ended, I was alive, and I felt normal or at least how I imagined normal should feel.

    Not gonna lie it's a hard game in the underground, but everything is a breeze now since I'm getting my Methadone legally. Makes me wish I found out about them fifteen years ago. I'd have zero felonies due to victimless crimes.
    I tried to tell them I was the victim and I'm not pressing charges. Even the judge laughed, but I know the law is the law and I broke it. Still he's the one that told me about Methadone clinics and for that I'm eternally grateful.

    SR should have never been needed.

    Yeah Sundays are boring.

  141. Pete says:

    If someone regularly transfers money in large amounts from anonymous payers to anonymous beneficiaries, then it is money laundering by definition, isn't it?

  142. Some Random Guy says:

    Now that Clark is back, it seems that he may have conveniently "forgotten" about this post, its comments thread, and his posts therein.

    I'd be very interested to see his response to Ken and PonyAdvocate.

    I wonder if he'll notice this…

  143. David Schwartz says:

    @KenWhite

    One can trivially create these moral problems when one lives in a society that is unjust. Do you think that somehow refute's Clark's argument? Do you think a consistent moral position must make difficult dilemmas impossible and must have a simple formula answer to each?

    You live in Nazi Germany. Your neighbor is hiding some Jews. The Nazis point a gun to your son's head and ask you if any of your neighbors are hiding any Jews. Are you morally obligated to risk your son's life by saying you don't know of any?

    Yes, one can face complex moral dilemmas where different moral principles weigh in different directions and there are no good choices. I would just say that we can't expect people to be perfect and should generally support any reasonable decision in such horrible situations and reserve our moral outrage for those who knowingly create the situations, not those who do their best to respond to them.

  144. Ken White says:

    @David:

    One can trivially create these moral problems when one lives in a society that is unjust. Do you think that somehow refute's Clark's argument?

    The problem with Clark's argument is (1) it's not clear to what extent Clark is trolling, and (2) the position that it is morally acceptable to murder people who are witnesses against you in criminal proceedings you believe to be unjust is fundamentally unworkable well before we get to the Nazis-at-the-door case.

  145. David Schwartz says:

    @KenWhite

    I agree. I just don't think your moral dilemma argument weighs against Clark's position even the slightest. Short of "do whatever you want", every moral system will leave complex dilemmas.

    Also, I think it's important to point out when judging people who respond to moral dilemmas that are in part created by injustices for which they are not responsible, we should place more blame on those who created the injustice than on those who did their best to respond to them. We should not expect people to respond perfectly to moral dilemmas and certainly a fair criminal justice system should probably accept any reasonable response to such a dilemma.

    You may or may not think this reduces the culpability of Ross Ulbricht. You can believe it reduces his culpability without believing it is okay to make the choices he is accused of making.

  146. Ken White says:

    @David:

    I once assisted, tangentially, in the prosecution of anti-government activists who committed bank robberies to fund their "war against the government" and then plotted to murder bystander witnesses, reasoning that murdering witnesses was justified because the bank robbery was justified because the war against the government was justified.

  147. David Schwartz says:

    @Ken White

    No matter how much you might disagree with the government or how badly it wrongs you, waging a war against it funded by bank robberies doesn't seem like a reasonable response. The initial moral dilemma is not their fault, but an unreasonable response to one is. Of course "other people mistreated me" is not a moral blank check.

  148. Clark says:

    @Ken White

    I once assisted, tangentially, in the prosecution of anti-government activists who committed bank robberies to fund their "war against the government"

    I'm already fairly off the bus.

    The reason that I dislike the government is that it makes moral calculations like this all the time and it thinks that it's entirely legitimate to do such things. ("Firebomb Dresden and murder 25,000 civilians? Sure! After all, that will hurt the enemy government!")

    With out getting deep into philosophical discussions like the "trolley problem", my short version is that utilitarianism is that harming bystanders is really really bad.

    and then plotted to murder bystander witnesses, reasoning that murdering witnesses was justified because the bank robbery was justified because the war against the government was justified.

    Jesus.

    Hope they all got sent away for a long time.

    My thought: show the populace who the good guys are by acting like the good guys. Don't murder witnesses. Don't shoot dogs. Don't entrap autistic children. Etc.

  149. Clark says:

    @Ken White

    I am walking down the street and observe you engaging in a mutually voluntary exchange of money and cocaine. Assume you and I both believe this should not be illegal.

    You're charged with drug dealing.

    The prosecution wants to call me as a witness.

    1. Do you believe I am morally obligated to refuse to testify and go to jail for contempt? Or am I morally obligated to lie on the stand? How do I choose, morally, which of those options I am obligated to do?

    Good question.

    First, I suggest that the question should have the exact same answer when reformulated this way:

    You are walking down the street and observe me kissing another man. You and I both believe this should not be illegal.

    The religious police charge me with drug dealing.

    The prosecution wants you as a witness.

    I've reformulated it so that we removed the libertine / druggy element and replaced it with something else that "reads" better for progressives.

    I suggest that, yes, in either of these cases you have the ethical duty to avoid assisting in my prosecution.

    2. If I decide I won't risk jail and that I will testify truthfully about what I observed, are you morally entitled to hire someone to murder me?

    By calling it murder, you've loaded the question. Let's call it "killing" instead.

    It depends on a few factors. First, what is the punishment I'm likely to receive? If I'm likely to go to jail for life, there's a stronger case to use violence in effective "self defense" against the State and collaborators. If I'm likely to get a $100 fine, then there's absolutely no case. A human life is worth infinitely more.

    Another factor is the care I have put into not being observed, or should have put into it. There's a big Thomas Schelling based argument to be had here about the game theory: I should take reasonable care not to be seen. To put Ken in this situation is immoral of me if I can avoid it easily.

    But what if I'm likely to be sentenced to half of my natural life span? Three quarters?

    It gets trickier.

    I'm not sure that my answer is "yes, it's moral", but let me play fair and give you the win here: yes, it seems possible that I would conclude that killing a collaborator who is helping to put an innocent man in jail for decades is legitimate.

    3. What if you don't know what I am going to do? What if I don't know yet? are you morally entitled to hire someone to murder me just in case? How late in the game, morally, do you have to wait for me to make up my mind?

    Excellent questions which I do not have preforumulated answers to. I'll think about it.

    @PonyAdvocate

    4. Mr. White is walking by with his [hypothetical] six year-old daughter when he witnesses your drug deal go down. He hates drug dealers, and yells at you, "I'm gonna rat you out to the cops, you drug-dealing scum!" Because he is almost certainly likely to cause your incarceration, you pull out your .38 and (to you, justifiably) shoot and kill him.

    Yep. Seems moral to me so far.

    The daughter does not witness the drug deal (let's say her back was turned), but she does witness your shooting her father. For some reason (let's say your acquainted with the White family), you know that she is precocious and observant, and she would be an unimpeachable and sympathetic witness to the homicide if you were tried. She is, therefore, likely to cause your incarceration for what is, to you, a justifiable act. Are you justified in now killing the daughter?

    No. I don't have a fully worked out ethical explanation for why – at least not yet. I will work to figure out the framework, but any argument that allows me to kill a six year old innocent is ipso facto illegitimate, therefore I can guarantee that the final system will still answer no.

  150. David Schwartz says:

    @Clark What about a circumstance where if you don't kill a six year old innocent, a dozen six year old innocents will die?

    This is why I don't think these moral dilemmas are particular useful criticisms of ethical systems. You can always construct a situation where a person has only a few choices and most of them are bad. Realistically, this most commonly happens when the circumstances are set up by the evils of others. The important thing is to focus on the evils of those who set these situations up and put as much of the blame on them as possible.

    We can recognize that the death of a six year old innocent is a horrible thing, but we should also recognize that if we have to choose between evils, often the best we can do is choose the lesser.

    "Your moral system is bad because it can justify the killing of an innocent child" is not a very powerful argument if the situation in which it does that is one in which the alternative is one the system judges worse evil unless you can argue that the system gets the weighing of the relative evil wrong.

  151. Justin Kittredge says:

    @Clark,
    It feels like if I wanted to answer this comprehensively (as in point out every flaw on your side or justify the other side) it may take a week, so I will bring out one point instead.

    No one is trapping you here in America. There is no big brother that will stop you from getting a passport (assuming you are not on parole), applying for citizenship to Portugal (where drugs are decriminalized) and awaiting your paperwork to go through and legally leave this place. Your premise of ethically being able to shoot someone who witnesses and testifies about your breaking of laws you deem unjust falls apart for many reasons, one of which is that you choose to live here. If America was the only place on Earth, or it disallowed people from leaving, then MAYBE this PARTICULAR flaw would cease to exist.

    In short: You are not justified to shoot the witnesses of any crime when you break the laws of a country you -CHOOSE- to live in/visit.

    If you want to argue you already have a house here, or you'd end up broke, or it is inconvenient, or you'd lose lots of money, I never said it was an easy choice, but as you are free to make it, killing a man is not justified because of mistakes you make with your choices.

  152. Ken White says:

    @Clark:

    I'm assuming that the killing-is-justified stance you're suggesting is based on a particular set of values, and not purely subjective.

    In other words, I assume you're saying "it's justified to kill humans if they bear witness against you for this particular set of unjust "crimes" I will define," and not "it's justified to kill humans if they bear witness against you for doing things you believe to be morally justified or a right."

    After all, we live in a highly pluralistic society where people believe wildly different things. Some people think honor killings are justified and would probably be happy to knock off witnesses to that. Some people think killing anyone who works for a facility that provides abortions should be killed. Some people think anyone who draws Mohammed should be killed. And so forth.

  153. David Schwartz says:

    @Ken White

    Almost everyone believes that killing a person is justified under some circumstances. There is no alternative to the fact that people might occasionally have to make decisions whether to kill other people or not.

    Yes, there are people who believe that force is justified under circumstances where Clark thinks force is not justified. Yes, Clark believes force is justified under circumstances where others think force is not justified.

    Rational people should have debates over when the use of force is justified. Clark has taken a position that he believes is correct (assuming he's not trolling). Your criticism seems to be that because he's taken a position, that means other people will take positions that we all agree are incorrect. So then …. what? We shouldn't have the debate at all?

    Or was this not supposed to be a criticism of his position?

  154. Ken White says:

    @David:

    Clark has not merely taken a position that some people think that killing people is sometimes justified. That position would be banal. Short of unusual pacifists, most people agree that killing people is sometimes justified. Most people, for instance, support self-defense against a direct threat of violence, though they may disagree about how immediate and forceful the threat must be.

    Clark's position seems to be a little edgier: that it is legitimate to kill people who are not currently threatening you with direct violence, but who are cooperating to some degree or other with state authorities seeking to enforce some set of laws against you.

    I am exploring that, from the sensibility that it is probably an unworkable recipe for free-for-all killings when imposed on a pluralistic society with diverse values.

  155. PonyAdvocate says:

    @Clark

    No. I don't have a fully worked out ethical explanation for why – at least not yet. I will work to figure out the framework, but any argument that allows me to kill a six year old innocent is ipso facto illegitimate, therefore I can guarantee that the final system will still answer no.

    I'm not sure that any notion of innocence (or of six-year-oldness, for that matter) is germane. Instead, it seems to me, your justification for killing a witness to your drug deal rests on some notion of self-defense against the witness's ability to or intention of causing your incarceration for what is, to you, behavior you should be free to engage in. If you are, by your lights, free to kill a witness to your drug deal because said witness can cause your incarceration, why are you not similarly justified in killing a witness to your (to you, justifiable) elimination of said witness? Let's say it's not a six year old girl: suppose it is a homeless addict living in the squalid alley where you conduct your drug trade who sees you kill Mr. White, and who will, for the sake of argument, be an unassailable witness. To put it baldly, you seem to be equally blithe about drug dealing and killing a witness thereto. So what, to you, is so different between drug dealing and killing a witness thereto that you are perfectly comfortable eliminating a witness to the first, but seem less certain about eliminating a witness to the second?

  156. David Schwartz says:

    @Ken White

    I am exploring that, from the sensibility that it is probably an unworkable recipe for free-for-all killings when imposed on a pluralistic society with diverse values.

    But that's not fair. You're splitting his position in half and then showing the danger of the first position in the absence of the second. He's not suggesting that they apply independently.

    Suppose I said, "A person should do what they think is right. I think it's right to refrain from killing innocent people." Would you complain that my first position, "A person should do what they think is right" is unworkable in a pluralistic society with diverse values because some people think it's right to kill people for drawing Mohammed?

    Perhaps the argument you want is more along these lines: Unless a society is fundamentally broken, people should respect that society's rules for the use of force. This may mean that you can't use force even when you think it is justified and you are right, but in return, other people will refrain from using force they think is justified when they are wrong. This is the price for living in a pluralist society — the rules for the use of force are turned over to society and we must respect them even when society gets it wrong. At least until we're talking about hiding Jews from Nazis.

    Clark may respond by arguing that our society is fundamentally broken.

  157. cpast says:

    I'm not sure Clark is saying that it's unjustifiable to kill the six-year-old girl because the crime she saw was you killing a witness/her father. I think he's saying that it's unjustifiable to kill her because she's a six-year-old girl who did nothing wrong. If she just came from an anti-drug assembly at school, sees you dealing drugs (which she was just told is evil), and will be an (unimpeachable) witness against you for dealing drugs, it seems like Clark would say it's still unjustified to kill her.

    @Clark: What would you say if it isn't the six-year-old daughter, but instead the guy's best friend? Would it be justifiable to shoot him? Why? What, exactly, did he do wrong, other than see you kill his friend?

  158. David Schwartz says:

    @cpast, I think the difference for Clark is not so much the age but the innocence. In the case of killing a person who is blackmailing you, you are killing a person who bears a lot of the responsibility for the moral dilemma you face and who chose to put themselves in the position of breaking the law as well as acting immorally. While you have the right to act in your own defense, killing an innocent is a pretty significant evil, so it would be the most highly extraordinary case where one could justifiably kill an innocent in one's own self-defense.

  159. John Kindley says:

    Indeed, the difficulties of moral judgments highlight the primacy of the Presumption of Innocence in both the moral and legal sphere. One should not kill another person, even another person who intends to rat you out for a victimless crime, unless one is convinced beyond a reasonable doubt that doing so is necessary and morally justified. But if the Presumption of Innocence was operative in the Government in the first place, victimless crimes wouldn't have been crimes.

  160. anonymous says:

    the thing is though, its still going on as we speak. silk road was only a part. And most people are and will get away with it.

  161. john thomas says:

    Why does the ending say "My Head Hurts

    I did warn you."

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