Those following the Ross Ulbricht case understand that it is an attempt by the federal government to usher in the passage of terrible laws curbing free speech and internet freedom by holding website owners responsible for the content posted by third parties. Paul Joseph Watson of InfoWars writes:
Although media coverage surrounding the case has almost exclusively focused on the accusation that Silk Road was a haven for criminals and drug dealers, the much larger issue of how the federal government is exploiting the case to set a dangerous precedent for laws which would crush basic Internet and financial freedoms has been overlooked.
The fact remains that Ulbricht is guilty for none of the charges leveled against him, only for allegedly running a website on which such activities were alleged to have taken place. As the Free Ross Ulbricht website notes, “If Ulbricht is convicted, it opens the door for the censure and erosion of a free Internet. Under present law, website hosts are not held responsible in civil cases for illegal actions on their sites. This case could set precedent for criminal liability for web hosts.”
In an interview with Julia Tourianski, Ulbricht’s mother Lyn Ulbricht explains why the case poses the biggest threat to the future of the Internet since SOPA and PIPA.
“This case will pave the way for new laws and new interpretations of law,” said Ulbricht, adding that Ross Ulbricht’s attorney Joshua Dratel emphasized the fact that the government often uses high profile cases to enact draconian legislation.
Court rulings set precedents for cases in the future, which is why judges write opinions to explain their reasoning. Future cases take these opinions into account so that judges have something to work with when presented with a new or nuanced case. This is how common law, the basis for law developed out of Britain and then to its colonies, is developed.
To overturn a precedent, especially one that has been confirmed multiple times over, would require significant proof against its prima facie validity. It would therefore be improper to rule against a defendant in a case where precedent is fairly clear.
Last week, I attended my first Liberty on the Rocks meetup in Philadelphia where the guest speaker was Maggie McNeill of The Honest Courtesan. She talked about how the government uses propaganda to manipulate the discourse about prostitution, making it easier to pass harsh laws that favor control. One case she mentioned was a law passed in the state of Washington, SB 6251, which claimed to take aim at child prostitution, stating:
A person commits the offense of advertising commercial sexual abuse of a minor if he or she knowingly sells or offers to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be commercial sexual abuse of a minor, if occurring in this state.
Nearly all of us are against the sexual abuse of children, so who would be against a law that prosecutes people who aid the sick desires of active pedophiles? The law on its face may seem okay until you see who could be prosecuted under it:
In a prosecution under this statute it is not a defense that the defendant did not know the age of the minor depicted in the advertisement. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor appearing in the advertisement by requiring, prior to publication of the advertisement, production of a driver’s license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement and did not rely solely on oral or written allegations of the minor’s age or the apparent age of the minor.
The law was written vaguely enough so that not only those who provide direct advertising services could find themselves in hot water over posted material in violation of SB 6251 but also services that simply provide users access to information across the internet. It would not be too far of a stretch of the imagination to see Google prosecuted under this law because someone used the site to search for one of these advertisements. This law would have the potential to destroy the internet.
As such, Backpage.com, the Internet Archive (IA), and the Electronic Frontier Foundation (EFF) joined together to fight the law in Backpage.com v. McKenna, et al in 2012. Backpage.com had a section of their website that hosted adult classified ads, which sometimes featured advertisements for underage children despite Backpage.com’s policy and efforts to block them. The Internet Archive was “concerned that as part of its online repository, it could cache a sex ad, and then be liable under this new law.” They charged that it violated, along with the Commerce Clause and First, Fifth, and Fourteenth Amendments, Section 230 of the Communications Decency Act (CDA), which states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Presiding federal Judge Ricardo Martinez ruled that a permanent injunction be granted in favor of the plaintiff, blocking SB 6251 on the grounds that it was unconstitutional and a violation of federal law. The parallels to the case of Ross Ulbricht are strong and undeniable. It would make perfect sense to apply this ruling to Ross.
Backpage.com and IA had argued that compliance to the law would require them to take unfair costly measures. The judge agreed in his opinion:
A credible threat of prosecution exists when the challenged law “is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392 (1988) (allowing booksellers to bring pre-enforcement challenge to law that would make it unlawful to knowingly display obscene material).
Does ignorance or the lack of monitoring bring blame to the host of the online content? Martinez says no:
Given the nature of IA’s service, and the fact that it currently does not monitor the majority of the content that it provides through its Wayback Machine, a criminal statute that imposed strict liability on IA would be costly indeed.
Compliance with SB 6251 would require the owners of the internet service to prevent any and all illicit activities from being posted through them. Even though the service itself is perfectly legal on its own, to remain compliant with the law would more or less require the service to be shut down since it would be nearly impossible to achieve the goal of zero illicit content.
But what if the owners of the service do not even try to block the content? Surely their inaction would constitute illegal action, right? Judge Martinez makes it clear that this is not the case:
“The message to website operators is clear: if you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.” Id. at 1175. Further, the Ninth Circuit acknowledges that “there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality.” Id. at 1174. “Such close cases … must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to – the illegality of third parties.” Id.
He later reiterates this point:
Second, SB 6251 is inconsistent with Section 230 because it criminalizes the “knowing” publication, dissemination, or display of specified content. In doing so, it creates an incentive for online service providers not to monitor the content that passes through its channels. This was precisely the situation that the CDA was enacted to remedy. See Batzel, 333 F.3d at 1029.
Judge Martinez then goes on to explain how SB 6251 violated the Commerce Clause and the First, Fifth, and Fourteenth Amendments, all of which can be applied to Ross Ulbricht’s case as well.
The conclusion is clear: the government has a legal obligation to allow Ross Ulbricht to enjoy immunity from prosecution for simply knowing that illegal activity was happening on (allegedly) his website. This was confirmed in a case even when the apparent goal of the struck down law was to prevent people from having sex with children. The unfortunate reality is that it is all but certain that the prosecutors in Ross Ulbricht’s case understand this but are willing to violate their own laws anyway to push their own agenda.