The Silk Road, Hacking, and the 4th Amendment

•November 15, 2015 • 11 Comments

This week I will be talking about the arrest and prosecution of Ross Ulbricht. Ulbricht was convicted for being the Dread Pirate Roberts which was the online persona of the owner and manager of the Silk Road, a black market website. The FBI, through its investigation of The Silk Road, used methods of investigation that could very well have been a violation of Ulbricht’s 4th Amendment rights. The evidence was admitted anyways. In this blog post I will be discussing why that happened and what I think should have been done about it.

You may ask, “Drew, how could evidence that you believe is a Fourth Amendment violation get admitted?” The answer, it’s complicated. The official reason the evidence got in was a technicality. As covered by Andy Greenberg, the Government did not have to prove that they did not violate Ulbricht’s rights because he never claimed to have an ownership interest in the server that was discovered to be hosting the Silk Road. To understand this, you may need a little more background on the story.

The defense team made the strategic decision to deny that Ulbricht was the Dread Pirate Roberts, the persona in charge of the Silk Road.  To achieve this end and to make sure Ulbricht was not open to impeachment on cross examination, the defense team decided to not claim any knowledge much less ownership in the server or electronically stored information held on it.   With this decision, regardless of the strength of the defense’s motion to suppress (and we will get to this next), there was no way to claim a violation of Ulbricht’s rights.

The motion to suppress filed by the defense(the first portion of the file) was very impressive.  They built a very strong case for a violation of Ulbricht’s rights.  It mainly boiled down to an argument that almost all the evidence collected against Ulbricht was fruit of the poisonous tree.  The case that the government presented was based on the server that was previously mentioned found in Iceland.  How exactly did they find this server? It is not exactly clear and, as previously stated, because of defense strategy it did not have to be disclosed.  The server in question would seem to have been impossible to find.  The Silk Road was a website on the darknet and could only be accessed through the TOR browser.  The only payment method accepted on the Silk Road was bitcoin which is a crypto currency that is also supposed to be untraceable. The way that these two emerging technologies were used in tandem should have made the server basically invisible, but the FBI found it and copied all of its file AND used it to infiltrate Ulbricht’s criminal enterprise.

The defense’s argument basically claimed that the FBI hacked the server somehow to collect the evidence that originally pointed to Ulbricht.  They then used that evidence, allegedly illegally obtained, to get new warrants and close in on Ulbricht.  This would seem to be a violation of the Fourth Amendment no matter how you look at it.  Here’s where it gets tricky for me, I do not know what the government could have done to stop the Silk Road.  It is a completely new type of criminality.  It is blatant and operating in the public space, where drugs dealers used to not be able act, and yet it was basically untraceable. The market place allowed for the sale and purchase of weapons of almost any variety, drugs, and even fake government documents including passports, IDs, and Social Security cards. This is definitely a national security threat especially in today’s world with terrorist groups attempting to attack innocent civilians in any place possible. So, while I agree that the government should not be breaking the rules as it appears they did in this investigation, I also do not think that they had any other options in this case.

In their response the government laid out their arguments for a lack of fourth amendment violation. They make interesting arguments for why they do not believe that they violated Ulbricht’s rights Including the fact that they turned the information about the presence of the server over to Iceland and let their own courts settle how to seize the server.  This process would allow them to not have to worry about the violating the Fourth Amendment, but it still begs the question of how they possibly knew of the server in the first place?

Finally, it has recently come out that the FBI may have paid Carnegie Mellon to break the TOR browser encryption.  This would be an interesting end around on the Fourth Amendment again because it would be a private entity breaking the law not the government. As a strong advocate for a free and open internet, I do not know how I feel about this either.  This is especially true when it was not broken only to see criminals, but actually any and every person on the Tor browser.

I clearly do not know what we should do to fix a situation with such blatant almost mocking criminality in the future.  I also do not know if Ulbricht’s conviction will stand.  I currently am leaning towards the feeling that it will be overturned.  Either way I am excited to see what you guys think about this problem and read the solutions you can come up with as well.

Surveillance, Virtual Financial Crimes, Digital Currencies and Privacy

•November 2, 2015 • 20 Comments


This week we will be shifting gears from human trafficking, which crime was virtualized with the help of backpage and begin to discuss the dark web which intersects with and augments much of what we have been discussing over the last couple months. Because a personal matter took me out of school for over a week and I fell behind in my classes, I was unable to enjoy the myriad fun activities around me this weekend. I was so focused on getting caught up in my classes that yesterday I asked my fiancée if I could put out a basket of candy with a sign instead of passing it out while she attended the party I couldn’t make. She approved of this sign which she located for me on pinterest:

Halloween Sign

Little did I know I was beginning a sociology experiment.

We recently installed new security cameras on our property and they come with a handy app for your smartphone, so you can check on your property at any time. We can even hear in real time. Since our camera is right next to the candy basket (but unfortunately too close to see into the basket), I decided to stream the security system on my phone as I continued to draft this blog just 1 flight of stairs above the camera and candy basket. I figured if I kept an eye and ear on the camera it would give me a chance to grab my lawfully acquired assault weapon in case it looked like a ghoul or goblin was going to take over my property. And enjoy the Halloween costumes. I feel like it turned into an episode of “What Would You Do” except I was John Quinones and I never got to catch up with any of the unknowing participants.

I didn’t connect the dots when some teenage boys showed up as some poorly done skeletons and I heard “One. One. One. One. One. One.” but even more times in rapid succession – apparently their interpretation of the sign, as I would learn. I thought it was strange they hovered over the basket for so long. They were oblivious to the camera. The next group of kids helped me out though and let me know it was time to refill the basket when a kid that reminded me of this YouTube personality announced, “Someone dumped your candy basket! I see that camera! Don’t let anybody take advantage of you!” I wish I could have made it down in time to thank him, but I refilled the basket for a second take at this experiment that I was now weirdly invested in. His insight is fortuitous with respect to this blog post.

It was around the height of the trick-or-treating and there was a steady flow of trick or treaters that seemed to really mind the sign, even though the vast majority were oblivious to the camera. The rare exceptions gave me something to chuckle about when one princess said to her partner in crime, “There’s a security camera,” seeming to offer up a friendly reminder just in case the sign wasn’t clear enough. The other girl nervously replied, “I know. That’s why I’m really nervous I took two.” No worries little girl, as long as you don’t dump and run like those foolish skeletons then you saved me a trip downstairs. Eventually the basket ran out again after I heard a parent console their kid that it wasn’t a big deal the basket was empty. I was almost disappointed at how quickly my third and final basket refill went. The traffic died down and there were fewer groups coming by. Soon a Darth Vader or some sort of sci-fi looking creature showed up and looked like he had spent more time on his costume and face paint than a bride getting ready on her wedding day. What appeared to be his young kid (around 4 or five) was waiting for him on the end of the driveway. I was shocked to hear the next group say that there was no candy left. I couldn’t believe the father did something like that in front of or for/on behalf of his kid.

Anyway, I didn’t want to open up my blog with a boring story but I do think the anecdote invites us to start thinking about what level of intrusion into our lives is appropriate and by whom?   Does the government have a compelling interest in surveilling our financial transactions? Should they have a blanket right? What about the companies we do business with? Our insurers? Our employers? Does or should our federal/state constitution protect us? What about privacy in our transactions over the Internet? We are all so individual and our actions, even based on a simple halloween sign, vary wildly.   The overarching theme to me was that while surveillance seemed to make one more cautious, in the end, one will accomplish whatever he sets out to do, be it engage in human trafficking, exploiting children, or driving to chick-fil-a for an ice dream. But I digress…

The dark web is often misconstrued as dominating the deep web, which is that portion of the web that can’t be crawled by Google.   It represents sites that require authentication or passwords to access like our bank accounts and email. This is the overwhelming majority of the deep web. The more nefarious activities that occur on the dark web are different. The dark web is accessed anonymously over what is known as a Tor network, and represents less than .01% of the web!

Further, the dark web isn’t all bad per se. Wikileaks is one such example of the less-dark web. Besides being accessed anonymously, services can also choose to be hosted anonymously on the Tor network. These onion services can only be accessed by using a tor browser. The browser makes anonymous a users browsing and, for those services that are hosted on the tor network, makes anonymous the service.

But just how far does the dark web reach? Not very far, at least since last November, 2014,  when Operation Onymous represented yet another huge takedown of services hosted on the Tor network, or onion sites.

The multinational operation, mainly between the United States Department of Homeland Security’s Immigration and Customs Enforcement Cybercrime Division as well as the European Union’s Europol (E3) Cybercrime Division, shut down 400 tor-hosted services that resulted in the seizure of over $1MM worth of bitcoin, the anonymous digital currency that is believed to facilitate much of the dark web, and its newer off-shoots like Litecoin and Dogecoin.

Bitcoin is largely believed to be what put Silk Road on the map, before its leader, known as Dread Pirate Roberts, was arrested after years of government surveillance.  Drew is going to talk more about the SilkRoad case next week, but for an introduction, Dread Pirate Roberts later became identified as Ross Ulbricht. Ulbricht had some unique ideas about economic theory that culminated from his post-graduate studies. I found this article particularly interesting in explaining Ulbricht’s theory that Ulbricht wished to address the systemic use of threat and force and that prohibition was a root cause of the physical harms that are associated with crimes related to human trafficking, child pornography, and drugs. This coalesces with the NYU law study I have referenced in my comments the preceding two weeks which hypothesizes that addressing coercion and force that leads to so many victims moreso than the underlying crime the victims are participating in does a better job, as a matter of policy, in reducing the coercion and force.

Speaking boldly about his disbelief in prohibition, Ulbricht stated about his creation, “It makes drug buying and selling so smooth that it’s easy to forget what kinds of violent fuckers drug dealers can be. That’s the whole point of Silk Road. It totally takes evil pieces of shit out of the drug equation. Whether they’re vicious drug dealers or bloodthirsty narcotics cops, both sides of that coin suck and end pretty much the same way. Death, despair, madness, prison, etc. Thanks to decentralization and powerful encryption, we’re able to operate in a digital world that is almost free from prohibition and the violence it causes.”

So although it appears the dark web is often criticized as being a breeding ground for weapons, child pornography, and stolen credit card numbers, it seems that Ulbricht’s brainchild was meant to facilitate non-violent drug transaction between an anonymous willing seller and an anonymous willing buyer. I wonder to what extent the result for Ulbricht may have been different if the myriad seemingly less innocuous inventory never became part of silk road?

Like the many world empires that have risen and fallen just like Silk Road, so too have the successors to the dubious marketplaces. After Operation Onymous, which took down Silk Road 2.0 and DPR’s “defcon,” there were few left standing, but as time progressed, the market has seemed to come to a screeching halt. One of the few remaining tor-hosted services was the “Evolution Market,” but it vanished in an exit scam just months before Ulbricht received his life sentence. Over $12MM vanished overnight. The market that was poised to succeed Evolution Market was Agora. But as recently as August, even Agora voluntarily “suspended operations.”  It appears a study released in July exposed a vulnerability in the Tor network that, in theory, could have allowed the government to deanonymize Tor traffic. Apparently fearing some sort of Operation Onymous 2.0, Agora took itself offline before anyone else could. Some speculate that the federal government did not conduct some sort of mass deanonymization effort, but instead just continued to use good old fashioned police detective work.

Irrespective of the means, one thing is for sure: it appears that the dark web has fallen on the darkest of times in recent memory as activity seems to be at an all time low. But, asides from the old fashioned detective work and perhaps some vulnerabilities in the Tor system, what does the federal government have in its arsenal to address these types of virtual crimes?

The Bank Secrecy Act. The Bank Secrecy Act of 2000 (31 USC Sec. 5311-5330) reduces a citizen’s right to privacy concerning banking information. Financial institutions are required by the federal government to monitor customers, maintain records, and report personal financial transactions that “have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings.” 12 USC Sec. 1951. Suspicious Activity Reports must be filed with Treasury Department’s Financial Crimes Enforcement Network, commonly known as FINCEN. 31 USC 5318(g)(1).

Financial institutions report these things secretly, without the consent or knowledge of its customers. The Reports are available electronically to every United States Prosecuting Attorney, over 59 law enforcement agencies including the FBI and Secret Service. The regulations make clear that these agencies need not suspect an actual crime before accessing a report, nor is a warrant or subpoena necessary.

It is clear then that the government has deputized banks to be its eyes and ears in the financial markets. Our policies ensure that our markets are centralized and all of our transactions go through the banking system. It is easy to see the threat imposed by the advent of Bitcoin et al. They are decentralized and are not transacted through financial institutions, but rather the internet.

Was the government more worried about the underlying transactions on the dark web or more about the fact that the cryptocurrencies made it difficult for them to be in the know? I believe it was the latter, and I think that is was led to FINCEN guidance in 2013 which were regulations designed to apply the Bank Secrecy Act implementing regulations to those using virtual currencies.

It appears the regulations were directed at Mt. Gox which at the time handled 70% of the bitcoin exchanges each day. In the months following the regulations, Mt. Gox’s market share actually ballooned to 90% until the Department of Homeland security swooped in with charges of violating the FINCEN regulations requiring it to register as a money-transmitter. It obtained the required license just shortly before effectively shutting down by halting United States Dollar withdrawals. The official demise came months later when it officially shut down and filed for bankruptcy after being “unable to recover from a significant bitcoin theft” that was equal to 6% of Bictoin in circulation at the time. Call me crazy, and Mt. Gox can call it theft, but it sounds like the kind of illiquidity than only a government or large market maker can effect, if the treasury markets are any indication.

Around the same time FINCEN stepped up efforts to slow the progress of virtual decentralized currencies, the US enacted FATCA which is known as the Foreign Account Tax Compliance Act. It created mandatory reporting requirements of foreign institutions of US account holders. It also required individuals to disclose foreign assets on tax forms, irrespective of whether or not there was income associated with the asset. Seen as a scourge by many with dual citizenship, Americans forever renouncing their citizenship have been on the rise, many because of the onerous requirements under FATCA.

So fellow classmates, what do you think this is all about? Is the government sincerely interested in shutting down the teeny-tiny dark web that is, no pun intended, seemingly on its last leg? Is it part of the United State’s war on drugs? Is it about the US wanting to have unlimited amounts of information about its citizens and their financial activity? Certainly the events of September 11, 2001 and terrorism subsequent to then give the government a very compelling interest in preventing and detecting terrorism, (and protecting against its financing and money-laundering related to terrorism) but just how much privacy must we give up in the interest of security? In Florida there is Constitutional right to privacy written into our constitution. Fla. Const. art. I, Sec. 23. The right has been held to be fundamental and thus requires a compelling state interest to use the least intrusive means to further the interest. Knowing this, States can provide leadership in the privacy arena because of the Constitutional options available. Would recognition of such a right at the federal level have changed the course of investigation into Silk Road and its successors? Or if California had a similar fundamental right? I don’t think it would have changed the investigation, but I do think it would have given Ulbricht unique constitutional arguments that could have changed the outcome of his sentence.

What about States where federally illegal drugs have been legalized and businesses are still effectively oustered from the banking system. Should they be forced to carry bags of cash? Doesn’t digital currency make more sense for these more vulnerable companies? They can’t seem to operate with or without the government, very much begging for federal attention to address the issue.  The fed hasn’t answered the call though and the only progress that has been made on the fed/state dichotomy issue is the Cole memo, issued in 2013 by the US Dept. of Justice. What more can be done to allow states to serve as the laboratories for democracy?

Ben Franklin wrote “They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” Has the United States struck the correct balance between privacy, security, and liberty? I very much look forward to your comments and our discussion on Wednesday.

Peer-to-Peer File Sharing of Copyrighted Materials

•November 1, 2015 • 11 Comments

I am writing my paper on peer to peer file sharing and how the current and proposed criminal laws are deterring (and failing to deter) future sharing of copyrighted materials. For those who do not know, a peer-to-peer (P2P) network is a network that allows users to search and access files from other end-users computers “peers”. The files will be download by a user directly from the other peers’ hard drives. These P2P networks are usually run through a program or a website, but that program or website does not hold the actual files.

In this blog post I talk about two of the biggest recent take downs of Peer to peer file sharing services, Megaupload and Grooveshark. These two takedowns were rather successful at stopping the copyright infringement that the sites were promoting. In my paper I focus on BitTorrent which presents some different problems then these two services. The kind of search and seizure that happened to these two sites is not very effective in stopping infringing material being shared through the BitTorrent protocol. The reason that Megaupload and Grooveshark were able to be taken down was because their P2P users needed to use Megaupload and Grooveshark’s servers to share files with one another. BitTorrent files called .torrent files cannot be stopped so easily because the P2P network is decentralized. This means the shutting down a website (such as Pirates Bay was), does not stop the files promoted on the site from being shared. Megaupload and Grooveshark have both been shut down but there were and still are many legal wrenches in the United States attempts to do so.

On January 20, 2012, New Zealand authorities raided Kim Dotcom’s mansion as part of the American-led global shutdown of his Hong Kong based file sharing company MegaUpload. Dotcom still faces 13 American criminal charges including: copyright infringement, racketeering, wire fraud, and money laundering. The United States filed a formal extradition request with New Zealand prosecutors to get Dotcom in front of a federal judge in Virginia. The US indictment states that Megaupload does not meet the criteria for safe harbor under the Digital Millennium Copyright Act (DMCA) because they were “willfully infringing copyrights themselves on their systems”. The indictment claims that Megaupload employees knew full well that the site’s main purpose was to distribute infringing content, and they encouraged it. A reason that the US prosecutors believe that the employees knew and encouraged this was because of email that they recovered between employees. The emails explain how Megaupload’s “uploader rewards” program worked. This program gave uploaders cash for uploading DVD quality movies and other files in demand. An email recovered from 2008 from an employee says that, their business is that of “modern day pirates.” The US also claims that the sites “abuse tool”, that could be sued by owners of copyrighted material US prosecutors claim that the site has earned more than $175 mostly through copyright infringement.

Dotcom has still not been extradited in the last three years because his lawyers have been able to continue to have the extradition hearing delayed by challenging the validity of the warrant executed to search his business and estate. It has currently been rescheduled ten times. However, Dotcom and his Co-defendants have lost their most recent bid to delay the extradition hearing scheduled for September 21, 2015. Of course this ruling will be appealed and we will have to see if this date will get pushed back again. Dotcom is currently living in his mansion in New Zealand where he has been out on bail

A major reason that Dotcom has not been extradited yet is because copyright infringement is not an extraditable offense. Of the 13 counts that Dotcom has been charged with, only two, racketeering and money laundering, fall under the extradition treaty between the US and New Zealand.

One of the Defendants in Dotcom’s copyright case, a program developer, was arrested in Virginia in February 2015, after being extradited from the Netherlands. He has pleaded guilty to felony copyright infringement and was sentenced to a year and a day in US federal prison. In his plea agreement, the developer admitted that he was aware that copyright-infringing content was stored on the website. Prosecutors hope to use his admission to help the extradite process with Dotcom.

Grooveshark was another P2P file sharing service that had 35million users at its peak. Grooveshark provided streaming access to a library of millions of songs. Grooveshark had one several lawsuits by The Recording Industry Association of America (RIAA), until in Federal judge in New York, ruled that it infringed on thousands of RIAA copyrights. Grooveshark’s defense had been that it complied with the DMCA’s requirement to respond to takedown notices from copyright holders. A reason for the ruling was because many Grooveshark employees had uploaded a total of 5,977 songs without their label’s permission. Because of this and other lawsuits that Grooveshark was involved in, it shut down in 2015.

Technology advances much faster than government can pass new laws and while the United States is still trying to prosecute Kim Dotcom other P2P methods have already taken over. There are obviously many obstacles in shutting down websites that are based in other countries. I think that the only way for the US to be able to stop the P2P sharing of copyrighted material in the US, the government must make strict criminal laws for the users downloading these copyrighted files. Currently, almost all internet service providers use what is called a six strike policy. This is where groups like the RIAA and MPAA monitor P2P networks and send the IP address of users who share or download copyrighted material to their internet service providers (ISP). The ISP’s then take a series of steps to inform their subscriber they are breaking the law. If subscribers ignore the many warnings the worst ramifications that they will receive is getting their internet throttled. ISP’s will not give up their subscriber’s information unless there is a subpoena or a warrant. I think making a law around this system to criminally punish continued infringers is the best way of stopping it in the US.

Let me know what you guys think!

Human Trafficking Influenced by Digital Media

•October 24, 2015 • 13 Comments

Alicia Kozakiewicz was just twelve years old when a human trafficker abducted her. Alicia began talking to someone over the Internet whom she believed was a teenager. Alicia’s mom knew her daughter was engaging in online discussions with someone, but she thought it was harmless. Alicia’s mom never considered the potential dangers that the Internet posed to her daughter. On New Years day 2012, Alicia’s mother called her daughter to come down from her room to have dinner, but she never responded. Alicia was taken to the online predator’s house and immediately raped. His intentions were to sex traffic her. This predator videotaped the abuse that he inflicted and posted it online in a video chat room for his friends to watch. Fortunately, one of his own friends reported the video to the police. The FBI quickly responded and rescued Alicia from a dungeon where she was found naked with a chain around her neck.

However, many don’t get a second chance at life like Alicia was afforded. The reality is that many of these victims end up trafficked by the person they met online and are never seen again.

Human Trafficking has existed throughout human history and continues to this day. In today’s world, trafficking is often facilitated by the use of the Internet, which allows for the human trafficking industry to process its human chattel at a quicker rate than ever before. People now can remotely log online from anywhere in the world and pretend to be anyone, such as the ostensible teenager/predator in Alicia’s case. The lack of regulatory controls in the online realm has allowed traffickers to buy and sell people with only a minimal fear of prosecution.

The most common site for human traffickers to utilize is known as Backpage, a website that allows pimps to advertise their victims anonymously. Backpages clients are able to pay for services in a non-traditional way, which makes them untraceable to law enforcement. They often use prepaid cards or other methods of payments that conceal their identity. When reading this information I asked myself, “Why doesn’t Backpage shut its website down or do more to prevent this from happening?” The truth is that even if Backpage were to shut its website down, it would only make a minimal difference because these criminals would just find another platform to use. Backpage says that its website has people who are constantly filtering out postings and flagging those posts that they deem suspicious and those that appear to be obviously illegal. I think one of the problems that law enforcement faces with Backpage is that it often only cooperates when presented with court documents, such as subpoenas, mandating it to turn over information. I think that if Backpage would work together with law enforcement it would make their jobs easier and these human traffickers would be caught faster. When reading articles about this topic, I scrolled down to the comments and one in particular stood out to me because it was so disturbing. Someone posted, “So-called ‘human trafficking’ is barely a problem worth our attention at all. The vast majority of it is just plain old adult prostitution, which is not only not a social problem but is a social solution. The phrase gets lots of play time because news outlets, just like movie producers and advertisers, recognize the value of the sensationalism of sex as a way to sell things. By conflating ‘human trafficking’ with prostitution some disingenuous people are confusing those unable to evaluate facts for themselves into thinking that prostitution is never a voluntary choice, and that all sex workers are some kind of slaves. That’s just not true.” It’s attitudes like these that allow for human trafficking victims to not be recognized as victims and as a result, many turn the other way when witnessing trafficking because they think its just prostitution. I think this topic needs to be further discussed and people need to spread more awareness on this issue so that society’s mindset can change. Often times, people think that human trafficking victims chose this for themselves and can leave at anytime which is not the case at all.

Another important legal issue that inhibits the prosecution of human traffickers is the fact that the means to track them down often run afoul of other basic rights. In a recent case in a U.S. District Court in Massachusetts, Judge Stern stated, “a free and open Internet is more important than thwarting traffickers at all costs.” This case came about when plaintiffs sued Backpage and argued that they—the plaintiffs—were forced into selling sex and were found by their traffickers online through the Backpage website. They claimed that Backpage should be held liable for what they endured because the website allowed for their exploitation. However, the court ruled that the mere existence of an escort section is not illegal and the website was not at fault for their trafficking. While judges are not jumping to help the victims of human trafficking, there have been some congressional attempts to help. One example is The Justice for Victims Trafficking Act.

Congressional attempts to curb human trafficking, such as The Justice for Victims of Trafficking Act, are likely to help because it imposes harsher penalties for human traffickers and provides greater funds for law enforcement to combat trafficking.

The Justice for Victims of Trafficking Act was recently amended and I have highlighted some of the changes. The bill amended the federal criminal code to prohibit knowingly: (1) advertising commercial sex acts involving a minor or an individual engaged in such an act through force, fraud, or coercion; or (2) benefitting financially from this advertising knowing that the person involved was a minor or victim of force, fraud, or coercion. The act also establishes the Domestic Trafficking Victims funds, which awards grants to law enforcement to provide protection for trafficking victims, to come up with methods to combat trafficking, and to provide services for child pornography victims.

I think that this law is a great start but perhaps stops a little short of its goal because it does little in the way of making website owners responsible for the postings of these victims. I absolutely think they should be held criminally liable because their postings allowed human traffickers to find their victims and later exploit them. Although the Internet is difficult to regulate, I believe there has to be some limitation to what people are allowed to post. In particular, because Backpage is so commonly used among human traffickers, a greater effort needs to be made by the website. According to After sex-trafficking arrest, under fire, Backpage charges a higher amount for adult ads than any other listing. Though Backpage tells its users that certain words are not allowed, human traffickers still find ways around that and use other code words such as donation or gifts to advertise people. Backpage as of now is not even required to verify the age of its users. Maybe Backpage is profiting at greater amounts because of human traffickers so they turn the other way and ignore it or just don’t care. The bottom line is that human trafficking through the Internet is a huge issue and websites like Backpage just make it easier for people to fall into the hands of these predators.

Reading about Backpage and its disappointing efforts in cooperating with domestic law enforcement impelled me to think about other countries. I wanted to compare the United States with other countries to see what the difference was in combating this issue. In order to compare the differences and similarities of how human trafficking is handled worldwide, I needed to look at the Trafficking Victims Protection Act (TVPA).

The TVPA act was enacted in 2000 in an attempt to stop human trafficking. The TVPA Act considers any person under the age of 18 who performs a commercial sex act, a victim of human trafficking, regardless of whether force, fraud, or coercion was used. In addition, the act provides benefits and protections to trafficking victims and enhances pre-existing criminal penalties in other laws dealing with human trafficking. This act categorizes every country and state in separate tiers based on whether they have complied with the regulations set in place. It compares the differences in how law enforcement handles human trafficking, highlights the protections and benefits that are afforded to human trafficking victims, and examines how prosecutors deal with these types of cases.

Tier 1 encompasses countries whose governments fully comply with the TVPA regulations, which includes the United States. Tier 2 are countries whose governments do not fully comply with the TVPA regulations but are making a good faith effort to be up to par with the standards. Tier 2 Watchlist incorporates all of Tier 2 but also includes the fact that their human trafficking numbers are rapidly increasing, they are failing to provide consistent effort to comply, and they are not committed to take future steps to prevent human trafficking from occurring. Lastly, Tier 3 includes countries whose governments are not making an effort to comply and have not complied with the minimum standards set forth in the TVPA act. Since the United States falls under Tier 1, I wanted to compare two countries from other Tiers. I chose Colombia, which falls under Tier 2 and Russia, which falls under Tier 3.

In Colombia people who have disabilities, are Afro Colombians, and are in areas where there are armed criminals pose a greater risk of being trafficked. In Colombia only one prosecutor was responsible for all of the transnational human trafficking cases in the entire country. Their prosecutors—or should I say sole prosecutor—has a heavy workload, and it is physically impossible for one person to do all of the work. The country has acknowledged needing more prosecutors to handle these issues but have not done much since.

Russia falls under Tier 3. The percentage of Human Trafficking that occurs in Russia continues to grow annually, yet Russia has contributed very little efforts to correct the issue. In Russia, there have been documented cases where Russian officials have facilitated human trafficking.

There are a lot of inhibitors to why human trafficking is not dealt with appropriately in other countries. Many law enforcement officials, like in Colombia and the United States, are not very educated on human trafficking and do not know much about it. There have been a plethora of prosecutors known to use the wrong criminal statutes to prosecute human traffickers, resulting in a lesser sentence. Agencies do not cooperate with each other and therefore do not have the authority to investigate human trafficking cases. For Example, the Federal Migration Service does not have the authority to investigate these types of cases. As a result, when they find someone that they suspect is a victim of human trafficking, they often arrest the victim for prostitution.

Finally, the United States falls under Tier 1. Women and children pose a higher risk of becoming victims of trafficking compared to that of Colombia and Russia. Similar to Colombia and Russia, the United States needs to make law enforcement more aware on how to recognize human-trafficking victims, but it is by far more committed to the eradication of human trafficking than both of the other countries. The United States prosecutes more human traffickers and encourages its agencies to work together to combat this problem. Unfortunately, the United States, like in Russia and Colombia, have arrested government officials for engaging in human trafficking—though not at the rate that the other two countries have.

When I started this post I was confused as to why the United States doesn’t do more about human trafficking. However, when comparing the United States with other countries I was taken aback. I think that we still have lots to accomplish and lots to learn but I do think that the issue is taken more seriously here than it is in other places. What do you guys think about human trafficking online? How do you think it can be stopped?


I look forward to our discussion on Wednesday!

Human Trafficking and the Evolution of the Mann Act

•October 18, 2015 • 11 Comments

When I think of the phrase “human trafficking” I think of the movie “Taken” where teenage girls are kidnapped in Europe and sold into prostitution.  The first time I watched the movie I couldn’t imagine that things like this actually happen but I have come to learn that the plot is not entirely over the top.  Holly Austin Smith was 14 years old when lured into prostitution by a man that she met at the mall.  This man exchanged phone numbers with Holly. He got to know her, made her feel special, and promised her a life of glamour.  Within hours of running away with the man he coerced her into working Pacific Avenue in Atlantic City, NJ until dawn of the next day.  Thankfully, the following night and officer recognized Holly as being underage and arrested her. Many of the stories of trafficking victims do not end this quickly.

Until I started working on my paper I did not fully understand what human trafficking actually meant.  According to the United Nations Office on Drugs and Crimes, the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as, “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” There are three elements to the crime.  The act: the recruitment or transportation, the means: Threat or use of force, coercion, abduction, etc, and the purpose: sexual exploitation.

The first domestic attempt at addressing the problem of human trafficking was in 1910. The Mann Act, or “The White Slave Traffic Act,” made it a felony to transport women across state lines for “the purpose of prostitution or debauchery, or for any other immoral purpose.” The purpose of the Act was to combat prostitution, immorality, and human trafficking. The Act was named after its sponsor, James Mann, who introduced the act because prosecutors in Chicago believed that pimps were forcing girls into prostitution. The Court upheld the constitutionality of the Mann Act in Hoke v. U.S.  The Court stated that while Congress can not prohibit the manufacture of an article in a State, Congress can prohibit it’s transportation between the States. It would be an invasion of state’s powers to regulate prostitution, but Congress can regulate interstate travel for the purposes of prostitution because “Congress has power over transportation ‘among the several states…’” In addition to this power, Congress has the ability to exercise this power by means that are convenient. An individuals right to travel is not infringed upon by this Act, but commercialized sexual activity is curtailed.

The Mann Act had far reaching consequences that extended to consensual sexual activity. The Act not only made it a crime to engage in prostitution with commercial intention, it also extended to non-commercial sexual activity. The Act became a tool to persecute couples engaging in pre-marital affairs and men engaging in extra-marital affairs. In 1913, Drew Caminetti and Maury Diggs took their mistresses from Sacramento, California to Reno, Nevada and were arrested in Reno after their wives informed the police. Caminetti was convicted of one count of “transporting a certain woman from Sacramento, California, to Reno, Nevada, in interstate commerce, for the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid woman should be and become his mistress and concubine.” Caminetti was sentenced to eighteen months imprisonment and fined $1,500. Diggs was indicted on six counts and convicted of four of them. Diggs was convicted for transporting and purchasing a ticket with the intent she should become his mistresses not only for his mistress, but for Caminetti’s mistress as well. Upon being convicted, Diggs was sentenced to two years imprisonment and was fined $2,000. It was argued that the Mann Act was intended to reach only trafficking of women for monetary gain, not the kind of behavior Caminetti engaged in. The Court found that Caminetti’s conduct was well within the plain language of statute; specifically transporting a woman across state lines for an immoral purpose. The court stated that, “the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.” This was the only evidence considered in making the ruling and the effect of this decision drastically changed the scope of the act. “The Court concluded that Congress intended to prevent the use of interstate commerce to promote sexual immorality,” rather than the initial belief that it was intended to prevent prostitution and trafficking.

In addition to prosecuting people engaged in extra-marital affairs, the Mann Act was also used to prosecute interracial couples. Jack Johnson, the country’s first black heavyweight boxing champ, was also one of the first African Americans prosecuted under the Mann Act. Johnson was convicted and given the maximum sentence for transporting a “prostitute” from Pittsburgh to Chicago.  This “prostitute” was his white girlfriend.  Johnson was sentenced to a year and a day, the maximum sentence at that time.  Johnson is only one of the many African Americans that were prosecuted for their relationships with white females.  The Act has since been amended and as the article says, the government has gotten out of the business of “legislating morality.”

The first amendment to the Mann Act came in 1978, and 18 U.S.C. § 2423 was enacted. This amendment updated the definition of “transportation” as well as added protections for the exploitation of minors, and these new amendments were gender neutral.In 1986, the Act was again amended, and the amendments made the entire act gender neutral. The phrases “debauchery” and “immoral purpose” were replaced with “any sexual activity for which any person can be charged with a criminal offense,” creating the current statute. This is one of the statutes New York Governor Eliot Spitzer could be prosecuted under.  Spitzer was caught on a federal wiretap arranging to meet with a high-priced prostitute in Washington D.C. Spitzer arranged for an Emproror’s Club VIP employee to travel by train from New York to Washington D.C. to engage in illegal sex.  This conduct is almost identical to the Caminetti case and if Spitzer paid for the train ticket his actions would almost certainly fall within conduct that is prohibited by the Mann Act.

Part of the challenge lawmakers face when drafting new legislation is the making the legislation effective without infringing upon first amendment rights. There have been first amendment challenges to § 2422(b) regarding adjudication for attempt charges. The court’s have unanimously held that the statue “does not infringe on protected speech and is not unconstitutionally vague or overbroad.”  In Ashcroft v. Free Speech Coalition, 535 U.S 234, 255 (2002), the Supreme Court held that “the over breadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Every Circuit Court of Appeal that has had to decide on this issue has held that “§ 2422(b) is not overbroad because there is no First Amendment right to persuade minors to engage in illegal sex acts.”  United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). The court went on to say that, “speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.”

A statute is void for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.”  Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)In United States v. Tykarsky , 446 F.3d 458, 473 (2d Cir. 2006) the Third Circuit Court of Appeals held that  § 2422(b) is not unconstitutionally vague because even though the statute does not define the terms “persuade,” “induce,” “entice,” and “coerce,” they “have a plain and ordinary meaning that does not need further technical explanation.”   The court stated that, “the absence of definitions for these terms poses no danger of chilling legitimate speech.” § 2422(b) regulates only conduct, not speech.  “No otherwise legitimate speech is jeopardized by § 2422(b) because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity.  Speech is merely the vehicle through which a pedophile ensnares the victim. Moreover, the scienter and intent requirements of the statute sufficiently limit criminal culpability to reach only conduct outside the protection of the First Amendment.” The court went on to say that, “any ambiguity in § 2422(b) is no greater than that found in many criminal statutes.”   § 2422(b) does not prohibit all communications with a minor; nor does it prohibit all communications that relate to illegal sexual activity. It only prohibits communications that actually or attempt to knowingly “persuade,” “induce,” “entice” or “coerce” a minor to engage in illicit sexual activity.  The statute only affects those who intend to target minors. It does not punish legitimate speech and it does not punish those who inadvertently speak with minors.  These terms are sufficiently clear to give a person of common intelligence, fair notice as to what is permitted and what is prohibited and to prevent arbitrary enforcement.

There has been significant improvement in human trafficking legislation over the years but there is still much more that needs to be done.  Part of the challenge, as with all the topics we have discussed, is that it is difficult for the law to keep up with rapidly changing technology.  A bill that recently advanced through the Senate is the Justice for Victims of Trafficking Act. the bill established a Cyber Crimes Center, which operates through the Department of Homeland Security within U.S. Customs and Immigration Enforcement to provide investigative assistance for cyber related crimes. Within the Cyber Crimes Center, a Computer Forensics Unit and a Cyber Crimes Unit is to be operated by DHS. This would be a huge step in the right direction to help with the online aspect of trafficking that we have had difficulty combating in the past.

3D-Printed Firearms: The Return of the Wild West (Episode XV)

•October 11, 2015 • 11 Comments

“Mathematical precision by the Legislature is not constitutionally required.”

      Over the past few weeks, since being set loose on our research, whenever I tried communicating what I’d learned to anyone, whether they be laymen, laywomen, or fellow debt-enslaved law students, I consistently found the need to explain what 3D-printing even was. Only then, could they accept the fact that 3D-printed firearms were a thing (they are; the internet told me).

      As such, here is the ‘quick and dirty’ on 3D-printers: Firstly, it is far easier to understand a 3D-printer as an industrial machine, rather than an actual printer sitting in your home office or work space. Instead of squirting ink onto a sheet of paper, 3D-printers utilize a variety of material polymers as their ‘ink’ when forming a 3D object. Though plastic is most commonly used, other markets have utilized food substances, biomaterials, metallic polymers, etc. 3D printing is, now, at a level where different ‘ink’ can provide a variety of uses, depending on the type of 3D-object desired. The process of 3D printing itself is actually conveniently basic to wrap your head around. Once a blueprint of a 3D object has been created, that blueprint is sent to a 3D-printer, which in turn, heats whatever material polymer fed to it and prints the polymer layer-by-layer, one at a time, with each layer cooling quickly atop the other until the object is formed. In order to 3D print a more complex object—say, for example, an object with moving parts (a firearm perhaps?)—the entirety of the firearm is not printed in one sitting. Instead, requisite parts are 3D printed separately, which when assembled, create the actual firearm.

      Now, onto the main course of the evening: The state of 3D-printed firearms has seen a momentous degree of evolution over the past few years, which was initially described as unexpected, but when considering American ingenuity for ‘protecting the home’, I would describe as having been inevitable. When it comes to any sort of new technological development, without fail, you can bet on America to somehow utilize it for the production of food, weaponry, and pornography (probably in that order, possibly at the same time).

      News coverage of 3D-printed firearms and overall public attention was incredibly scarce until a non-profit firm known as Defense Distributed shot into the spotlight when it released the “Liberator” in 2013. The firm proclaims itself as being organized to “…defend the human and civil right to keep and bear arms…[and]…produce, publish, and distribute to the public…information and knowledge related to the digital manufacture of arms.” When the “Liberator” hit the market in 2013, its’ blueprints were downloaded over 100,000 times in two days, at which point the State Department sent Defense Distributed a letter, forcing them to take the files down. The ‘damage’, however, had already been done, for the files still exist to this day on torrent sites such as Pirate Bay. (Caution: this link is just to illustrate the availability of the file. I would highly advise not downloading it. Also, Pirate Bay ads can be NSFW.)

      After a series of further developments, Defense Distributed filed suit against the State Department, with the most recent development having been a denial of Defense Distributed’s motion for preliminary injunction. To put the analysis of the court bluntly, when considering the language of various legislations and regulations, Defense Distributed was more than easily informed of the fact that its acts of placing blueprints for a 3D-printed firearm online, for free, clearly classifies as an export and as such, falls within the government’s reach as Defense Distributed applies for export licensing, regardless of the firms constitutional complaints. Amongst the various legislations and regulations involved in the State Department’s letter to Defense Distributed, the lawsuit itself, and other 3D-printed firearm related issues, the Undetectable Firearms Modernization Act (UFMA) has been the latest and most covered legislative activity to address such issues. Though the proposed legislation by Rep. Israel (D-NY) has yet to survive a vote, and the text itself makes no mention of 3D-printed firearms whatsoever, it is clear that the intent is to address 3D-printing advancements, as well as unknown future developments.

      For example, the proposed legislation seeks to eliminate text in the original legislation which prohibits any firearm that doesn’t set off x-ray machines, commonly used in airport security, and replace it with text prohibiting a firearm that does not set off common detection devices used in airport security screening. The elimination of the original specificity for x-ray machines allows a broader curtain to encompass other kinds of security detection that may be implemented at some point in the future (a likely possibility given the pervasiveness of plastic polymers utilized in 3D-printing generally, and more specifically in the “Liberator”).

      Given the lack of legal activity surrounding 3D-printing firearms, I have had to branch out a bit into how the law has handled other kinds of firearm related issues that don’t fall within traditional or historical approaches. Among the list of readings that Professor Jacobs sent me was a case in Massachusetts involving a statute banning stun guns. When reading through the case and news articles surrounding it, what kept coming to my mind was, ”Uh oh.” In short, a woman consented to a police search of her purse when they found a stun gun inside it, which is currently banned by MA state law. The woman claimed her possession of it for self-defense against a former abusive boyfriend and raised a 2nd Amendment defense. The court responded by essentially saying that stun guns do not fall within the historical constitutional framework of what the 2nd Amendment means. It went on about how even though modern firearm weaponry exists on a level far beyond what has existed historically, their overall functionality has remained largely unchanged (i.e. how a bullet is fired is how a bullet is fired, regardless of how often, how precise, or during what year). In the courts mind, a stun gun, which sends out electrical volts causing injury or death, does not fall within any sort of historical context; thus a ban on such weapons was not found to be unconstitutional.

      The obvious response to this decision has been a highlighting of how stun guns are notably less dangerous than any firearm. In fact, that they were designed to be less dangerous holds no credence whatsoever in the courts analysis. And as the quote at the start of this blog post suggests, if this decision is representative of the effectiveness of the law in new areas of technological advancements, we future generations of legal professionals are going to have mountains of thick sludge to get through before complex issues such as 3D-printed firearms will be intelligently and precisely addressed.

(If anything in this post was the least bit intriguing, stay tuned for Episode VII, which I will be sure to make available for anyone interested, after our semester of research has finished.)

A Brief Examination of Child Pornography and the Modern Legal System

•October 4, 2015 • 10 Comments

Let me preface this posting by saying that I in no way endorse or support child pornography or the people who view and distribute it; however, this is a volatile area of the law and it needs to be explored. I personally believe that people who are struggling with pedophilia need to find the professional help that they badly need, and the law needs to be refined in such a way that allows them to get help while still being just in its enforcement. This post will examine the problem of child pornography in this country, and how the legal system interacts with the rapidly changing environment child pornography flourishes in: the Internet.

Child pornography (CP) is on the rise in the United States. Statistics show that there has been a huge increase in CP-related arrests; in 2009, there were 4,901 arrests made for CP, almost triple the amount of arrests made in 2000. While this may be because law enforcement is getting better at finding people involved in CP, the opposite may be true. The evolving technologies surrounding the Internet are actually making CP easier to access, while simultaneously making it harder for law enforcement to find and successfully arrest perpetrators.

The rapid growth of the Internet, while a positive factor in many ways, has made it easier for people to access, view, download, and distribute CP somewhat undetectably. Peer-to-Peer file sharing is one arena which has allowed CP to flourish; P2P, as its called, allows a “seeder” to share pieces of a file with downloaders, who then becoming seeders as well. It is a decentralized network; because no one is sharing a complete file, it is harder to track. Coupled with the use of proxies (fake servers that help disguise a users IP address) tracking down CP distributors is several orders of magnitude harder than it was thirty years ago.

One of the ways in which CP distributors are caught, however, lies in their communities. Like many fetishes, CP consumers often band together to share their collections, fantasies, and tastes. Unlike many fetishes, however, there aren’t many safe spaces in the real world for people who like CP to get together and talk about child abuse. The anonymity of the Internet provides the perfect place for CP consumers to “meet up” and find a community that shares in their predilections.

The Cache was one such community. The Cache was a collection of forums in which users posted and shared explicit photos of underage girls. In 2008, the DOJ brought down the Cache in an operation called Operation Nest Egg. At its completion, charges were filed against the individuals involved in the Cache, but namely against the Cache’s creator/admin, Roger Loughry. At his trial, the prosecution, seeking a guilty verdict, showed several incredibly graphic videos of CP to the jury. The jury then returned a guilty verdict. But then something went wrong: Roger Loughry appealed, and won.

On appeal, the Seventh Circuit Court of Appeals found that there was a problem with the videos shown to the jury at trial: they were not videos that were posted on the forum, but were actually from Loughry’s private stash. Rather, the prosecution’s usage of the CP videos was only to inflame the jury against him, as the videos were not related to the charges being brought against Loughry. The court held that the unfair prejudice outweighed the “minimal probative value” of the videos, and reversed, remanding for a new trial. Loughry was still convicted at his new trial, but his case raises an interesting question: whether the showing of any CP to a jury has probative value, and whether that probative value is ever higher than the monumental prejudice that showing CP in court has on a defendant’s case.

To review: it is getting harder and harder to catch CP consumers and distributers. But conversely, it is easy to convict them. In 2007, 2,197 individuals were defendants in CP-related cases; 9 out of 10 of them were convicted, an increase in the rate of conviction since 2006, where it was only 8 out of 10. Because of the lack of clear charging guidelines, prosecutors have almost unfettered discretion in what charges they can bring. Some prosecutors (52% of those surveyed) have expressed a desire for clearer guidelines. Most courts have to adopt either a case-by-case basis for CP sentencing, or have to strictly follow the guidelines. The federal sentencing guidelines call for a minimum mandatory of 5 years without parole for downloading CP, but require 15 to 20 years for “large amounts” of CP. However, they never set a numbered guideline for what constitutes a large amount, which results in huge discrepancies in sentences for similar cases.

Child pornography is a difficult area of the law as it is; just as law enforcement struggles to keep up with the rapidly evolving landscape in which CP thrives, the law struggles to keep pace with changing times. CP is deplorable, and prosecuting those who exploit children is a laudable goal. But the laws as written allow for gross discrepancies in sentences, abuse of prosecutorial discretion, and conviction regardless of actual evidence or proper procedure at trial. I do not endorse people who consume or distribute child pornography, but there needs to be a change in the laws to ensure that everyone has their fair day in court.


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