Saturday, May 30, 2015

Ross Ulbricht should not spend one day in prison*

*(unless he is tried and convicted for something else entirely. See my note at the end of this post for why that might happen).

For those who don’t know what or who I’m talking about, Ross Ulbricht is the creator of a now-defunct online marketplace called the Silk Road, which used Bitcoin and sophisticated Tor technologies to allow people to exchange illicit goods anonymously. Contrary to popular myth, the website’s terms of service explicitly prohibited the sale of assassination, weapons of any kind, child pornography, and “anything who's purpose is to harm or defraud.” 70% of the items sold on the Silk Road were illegal drugs, but not everything sold there was illegal – much of it was merely taboo or embarrassing, like erotica.

On Friday, Ulbricht was sentenced to life in prison, without the possibility of parole.

Apparently, Ulbricht’s creation and maintenance of the Silk Road made him guilty of the following seven crimes:
1. Narcotics trafficking
2. Distribution of narcotics by means of the Internet
3. Narcotics trafficking conspiracy
4. Continuing criminal enterprise
5. Conspiracy to aid and abet computer hacking
6. Conspiracy to traffic in fraudulent identity documents
7. Money laundering conspiracy.

But so far as I can tell, Ulbricht didn’t do any of those things. For the duration of time the prosecution examined, he never trafficked narcotics (by means of the internet or otherwise), nor conspired to do so. It is possible Ulbricht initially sold some psychedelic mushrooms he grew himself (which are mostly harmless unless you have a mental illness, and should certainly be legal anyway), but as Reason’s Brian Doherty writes “[n]one of the charges were related to personally selling an illegal substance to anyone—Ulbricht merely ran a website that facilitated it—and none were related to causing direct harm to anyone's life or property.” Charge #4 is a catch-all statute designed to target drug kingpins, but Ulbricht was not a drug kingpin – just a website manager, who took commission off anything that happened to be sold on his website, including drugs. Computer hacking equipment was sold on his website by others, and his website probably aided and abetted its eventual use. But Ulbricht was not an active conspirator in those purchases, much less in the actual hacking. The same goes for the fake ID’s. Money laundering has never before applied to Bitcoin, which the government does not accept as payment for debts or taxation. But even if he is guilty of money laundering, it’s only because it was necessary to avoid detection and prosecution on the aforementioned BS charges.

In Doherty’s words, “he didn't do any of those things, but merely helped manage a website that allowed people to do them.” That’s a critical distinction, that should concern all of us. By analogy, drugs could presumably be sold on Craigslist as well, or Ebay or Amazon or even Facebook. Prostitution already is. Should the creators of those websites also be criminally liable? The Communication’s Decency Act of 1996 is supposed to protect web hosts from criminal liability, but now you can apparently imprisoned for merely creating a website.

Of course, the anonymous nature of the Silk Road invited those with reason to hide from law enforcement, and Ulbricht surely knew this. Maybe knowingly tolerating crimes committed by others should be a separate charge. But it’s hardly equivalent to committing them yourself, and from my view, it doesn’t warrant jail time. And since narcotics trafficking should not be a crime anyway, Ulbricht shouldn’t be in jail anyway.

What it boils down to is that a 31 year old man was given a life sentence for creating a safe space for buying and selling things; a wholly peaceful, wholly voluntary forum for the exchange of goods people demand. It was, in the purest sense, a free market.

It was not the only market, however for the items it sold. Drugs, in particular, are sold on many other markets across the world, whether or not they happen to be legal. What separated Ulbricht’s market from those other markets was one important feature: complete and total safety.

In every other illicit market before his, the sale of drugs required in-person meetings between criminals in secluded locations, for which no police supervision was possible. These markets featured turf wars between rival gangs delineating their territory. They required intimate knowledge of which blocks which dealers were and were not allowed to sell on, and risked running afoul of the wrong people for violating those unwritten rules. They required you to trust rumors on the street about whose product was pure, and whose was phony. In short, those who wished to buy drugs were in danger of being hurt or stolen from by the dealer, or the dealer’s rivals, or others on the street. Once they had acquired the drugs, they were at risk of their drugs being laced with less effective, more addictive or more dangerous substances than the one they had ordered.

The Silk Road solved all of these problems. Payment was in crypto-currency, not cash that could be lost or stolen. Drugs were shipped in the mail and arrived at your doorstep, eliminating any need for in-person meetings. Just like eBay or Amazon, the Silk Road featured verified buyer reviews of each seller profile, so sellers had incentive to deliver what they promised, and buyers could read someone’s ratings instead of investing their trust in an unknown entity. And crucially, it helped users avoid detection from the authorities, which should be seen as an enormously good thing for everyone involved. It was a plus for the seller, who profited without harming anyone. It was a plus for the buyer, who was free to live as s/he pleased without fear of violent retribution (at the hands of the state or anyone else) that likely would have worsened their life far more than drug use ever did. It was a plus for the taxpayer, who no longer had to incarcerate these victimless criminals. It was a plus for the policemen freed to focus on crimes with actual victims, and freed from the pointless danger of chasing drug dealers on the street. It was a plus for inmates, whose prisons were less overcrowded than they would have otherwise been.

The Silk Road did not invent the drug trade, but it did make it decidedly more peaceful, and the world decidedly better. Doherty explains:

“Silk Road was undoubtedly a net positive for the health, safety, and liberty of most of its customers and sellers…[it] gave users and sellers of illegal drugs something amazingly useful they never had before: a forum where they could deal with each other in anonymity and safety, where a concerned community could provide the sort of "regulation" governments can only dream about: open communication about product and seller probity, and useful advice about product use safety. Silk Road was, for those who care about the health and safety of drug users, a harm reduction dream…

If you delve into the world of Silk Road forums and fans, as I did in researching my December Reason feature, talk to some of its users, study the academic work on it, you realize Silk Road was a place that helped eliminate fear, uncertainty and danger; that made quality and customer satisfaction a more powerful incentive to succeed in drug dealing than violent defense of turf or money.”

So, what’s the problem? The arguments in favor of the sentence were absurd.

US Attorney Preet Bharara told the press that “Ulbricht bears responsibility for the overdoses, addictions, and other foreseeable repercussions of the illegal drugs sold on Silk Road.” That’s like saying the CEO’s of McDonalds and Coca Cola are morally culpable – in a way that warrants a life sentence! – when people die of heart attacks or diabetes after abusing their products. Any 8th grader should be able to detect the enormous leap of illogic in that argument: you can’t skip over the agency of the person making the decision to actually use those products! If drink myself to death one night, a whole host of factors may have contributed to that eventual outcome. Maybe I was depressed. Maybe I got fired, or my girlfriend dumped me, and I turned to drink out of despondency. Maybe I had a biological predisposition to alcoholism, or was peer-pressured into drinking too much at college. Studying this vast web of interconnected factors may be interesting and helpful at the macro level. But it should still be obvious that nobody is morally to BLAME for my death except me! I’m the bozo who drank myself into a comatose stupor – not Budweiser, and certainly not the shipping company that agreed to carry Budweiser from the seller to the buyer.

“But by that logic,” objects Business Insider’s Shane Ferro while arguing for harsh punishment, “no individual ever accused of facilitating drug sales should be punished.”

Well, yeah! That’s pretty much the gist of it. The notion that helping people buy things the government thinks are bad should not warrant lengthy imprisonment is not some “gotcha!” reduction into obvious absurdity: it’s what common sense notions of human decency demand. It isn’t that “the internet gives us some detachment from our actions,” which animates libertarian outrage at this sentence, it’s that selling people things they want to buy for peaceful purposes is not an unjust action through any medium.

One of the prosecution’s legal filings argued for a severe sentence “in light of the seriousness of the offense and the need for general deterrence”. Leave aside for now that there was nothing the government ought be in the business of deterring. If the 45 year old War on Drugs proves anything, it’s that deterrence clearly doesn’t work regarding what people choose to put in their bodies.

Prosecutors also asked the judge to “send a message” in sentencing Ulbricht. Doherty’s summary of that message is more eloquent than anything I could write myself, so I’ll conclude with it here:

“That message is that if you dare try to make life better by creating a realm of liberty, anonymity, and reliable information surrounding something they've forbidden, they will destroy you. That message will not work, in that other people are trying to and will continue to try to emulate Ulbricht's model. After the October 2013 takedown of the original Silk road, the sale of drugs through Silk-Road-like methods has far from stopped and is more than double in listing volume than it was then. The techniques are too useful and too good to ignore, no matter how much the government tries to wreck them.

Ulbricht and Silk Road, despite his grim fate, sent out a more powerful message than the one the government wanted Judge Forrest to send: that ingenuity and technology and effort can create wonderfully helpful realms of freedom in markets and behavior.
It's a powerful and optimistic message that speaks well for the human future. The government's message that malign thugs will try to wreck your life for doing so is ugly and outmoded. Thanks to the bravery and intelligence of the likes of Ross Ulbricht, we may yet live to see the government's message die a deserved death, and Ulbricht's message continue to inspire those who value human liberty.”

*Afterword about the caveat with which I began this post:

It is important to note that there are rumors – with some evidence – that while Ulbricht was running the Silk Road, he paid a hitman to assassinate six people who had either defrauded Silk Road users or blackmailed Ulbricht for money. This evidence includes a macabre transcript of online communications from early 2013 (shortly before Silk Road was taken down) between a site administrator named Dread Pirate Roberts (allegedly Ulbricht’s account) and one named redandwhite, who claimed to be a member of Hell’s Angels. In the transcript, Roberts negotiates and pays for four killings, though apparently none of them were ever carried out (ironically, it appears redandwhite was himself a con-artist, who made up the victims, convinced Roberts they needed to be taken out, and faked their deaths in exchange for some $650,000 USD equivalent of Bitcoin).

Ulbricht’s defense insists their defendant had nothing to do with those communications: they claim he “got out early” after the site’s creation, and passed on maintenance of Silk Road to another anonymous individual well before this exchange took place. I have no idea whether that is true or not. If he did try to have someone killed, he of course deserves to be in prison for a very long time, and all my talk about him being a heroic martyr for libertarian idealism is moot.

But as those accusations swirl, it is equally important to clarify that this is NOT what Ulbricht was sentenced to life in prison for. Ulbricht was never even tried for attempting to hire an assassin. Until such time as he is, and is found guilty, he deserves the presumption of innocence. And even then, he should be sentenced with consideration for the unique particularities of that case – that he was trying to defend himself from blackmailers and thieves as a last resort, and that no killings were ever actually conducted – independent of all the Drug-War mandatory minimums from February’s convictions.

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