1 - Ulbricht has never asserted the server belonged to him, as such, he has no assumption of privacy for whatever is on the servers. He could have claimed the servers belonged to him in order to challenge the search, which his legal team opted not to do.
2 - By running a site which engages in criminal activity (legally speaking of course) he violated the 3rd paty hosting companies terms of service, which invalidates his right to privacy for anything located on said server.
3 - Since the site was trafficking drugs (which is defined as criminal activity) the hacking of the site would still be legal since the FBI doesn't need warrants for such a search:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...
The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 264-275.
Pretty sure this request will be denied since his legal team didn't assert the information on the server belonged to him in the first place, regardless if the FBI hacked it or not.
No one's quite sure why the FBI would be logging exit node traffic in an investigation aimed at the SR1 hidden service.
I mean, I have only a very basic understanding of it and still understand that exit nodes will have a lot of visibility into traffic, so I had better consider that before sending data over Tor. They've even made PSAs about this (I looked it up just now):
https://blog.torproject.org/blog/plaintext-over-tor-still-pl...
Seems plausible to me.
In fact, some of these arguments are waived on appeal if not made in a post-trial motion.
What you're saying is accurate but it's not the point. They are basing their new argument on "fresh evidence". To be successful, an appeal must be based on a legal argument and not on new evidence.
Source: http://www.americanbar.org/groups/public_education/resources...
The appeals courts do not usually consider new witnesses or new evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure or errors in the judge's interpretation of the law.
> Records of the investigation that were made available to
> Ulbricht only just before his trial in January ... show
> thatIf you made such a motion and the judge denied it, then that becomes the basis of an appeal in that the judge erred by not allowing the extra time. On the other hand, if you never made such an argument and then try to introduce new evidence in a post-trial motion or appeal, you will not be very successful.
Yea right? Tor was hacked, or was finally given the backdoor key by the NSA? I imagine the NSA held off for years, but finally knew the FBI would never stop the site--so they reluctantly helped out the FBI? I do wonder why the CIA didn't just assassinate Ross? (Personally, I think it was a mistake to let Terrorists question the security of TOR?)