By Adi Robertson on Email @thedextriarchy
Ross Ulbricht, who stands accused of running the Silk Road black market under the name "Dread Pirate Roberts," says that new federal bitcoin laws
make the charges against him invalid. In a filing over the weekend,
Ulbricht's lawyers defended him against charges of hacking, narcotics
trafficking, operating a criminal conspiracy, and money laundering. The
first three charges, his lawyers argue, are "unconstitutionally broad"
and can't be applied to the normal operation of a website, even one
whose business is illegal goods. And the last charge, they say, makes no
sense if there isn't actual money involved — a possibility implied by a
recent IRS decision.
Ulbricht's defense against the
first three charges largely amounts to an abdication of responsibility
over what users did on the site: any actual drug trafficking would have
been done by users of Silk Road, not the site's operator. Using the
comparison of a landlord whose tenants operate a crack den, or a search
engine that allows users to find illegal content, they argue that only
civil penalties should apply, not the criminal ones federal prosecutors
are seeking. "At worst, Mr. Ulbricht allegedly acted as a conduit or
facilitator for those engaging in illegal activity," not as a drug
"kingpin." And a hacking conspiracy charge, they say, is based only on
the sale of malicious software through the site, not anything Ulbricht
himself did.
Recent IRS guidelines tax bitcoin as property
The fourth charge, however, is
based on interpreting what bitcoin itself is. Or, more precisely, it's
based on the most recent legal interpretation of what bitcoin is:
property, not currency. In late March, the IRS finally issued rules on
virtual currency, saying that it should be taxed as an investment rather
than money. "In some environments, virtual currency operates like
'real' currency," said a notice, "but it does not have legal tender
status in any jurisdiction." Picking this up, Ulbricht's lawyers say
it's the latest in a series of government statements that treat bitcoin
as something other than a currency. It doesn't, therefore, fit the exact
definition of "funds" or "monetary instruments" used in laws against
money laundering.
Silk Road has always occupied
an outsized role in discussion of bitcoin, and Ulbricht's arrest marked
one of the currency's biggest brushes with the law. As it proceeds,
governments are still working through how to classify bitcoin,
especially after the recent bankruptcy of prominent bitcoin exchange Mt. Gox. Friends and family of Ulbricht, meanwhile, have mounted a defense
unrelated to the vagaries of virtual currency laws: that the drug
kingpin described in the charges couldn't be the man they know.