Scales of Injustice – Silk Road’s SSBD

SSBD had no role to play in the Silk Road marketplace where drugs were bought and sold.  He was a moderator of the Silk Road discussion forum, which had its own URL and was hosted on a different server to the marketplace. So why is the US so determined to extradite someone who may or may not be him?

Peter Philip Nash has been sitting in a Brisbane jail cell since 20 December 2013.

He is facing extradition to the United States to face allegations of narcotics conspiracy (maximum sentence of life in prison and a mandatory minimum sentence of 10 years); conspiracy to commit computer hacking (maximum 5 years) and money laundering conspiracy, which carries a maximum sentence of 20 years in prison.

According to the US Indictment, Nash was known online as “samesamebutdifferent”, better known to Silk Road members as SSBD. SSBD was a well-loved moderator of the now defunct Silk Road discussion forums (new forums, colloquially known as SR2, have replaced the old). His job was to answer questions, explain the rules, move posts to their proper forum (with over a million posts, many were bound to wind up in the wrong place) and generally attend to banal administrative tasks.

In any event, Nash may or may not be SSBD.  But even if he is. What exactly was SSBD’s crime?

All I have to go on is the indictment. I don’t know what other information the authorities have, but if all they have is what is in the indictment, it would be a travesty if Australia was to agree to deport him.

SSBD had no role to play in the Silk Road marketplace where drugs were bought and sold.  He was a moderator of the Silk Road discussion forum, which had its own URL and was hosted on a different server to the marketplace. His job was confined to that site.

Two others who were arrested concurrently – Andrew Jones (aka Inigo) and Gary Davis (Libertas) – were immediately released on bail under the laws of the USA and Ireland respectively. According to the Indictment, Inigo and Libertas did have roles on the marketplace as well as the forums. The indictment differentiates the two where it says:

“Inigo”… worked as a site administrator on Silk Road

“Libertas” ”… worked as a site administrator on Silk Road

“Samesamebutdifferent”… worked as the primary moderator on the Silk Road discussion forums (my emphasis)

Nash was not granted bail because under the Australian Extradition Act 1988, ‘A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand’. It seems Nash could not fulfil the “special circumstances” requirement.

Next Wednesday, Nash is due back in court for a magistrate to determine whether he is “eligible for surrender” to the US. If so, Nash will be remanded in custody until the next phase of the proceedings – surrender or review (or he can consent to extradition).

Under s.19 of the Act, he will be eligible for surrender to US authorities if the magistrate is satisfied:

(a)  the supporting documents in relation to the offence have been produced to the magistrate or Judge;

(b)   any additional requirements imposed by the US-Australia Extradition Treaty are satisfied

(c)  the conduct would have constituted an extradition offence if it had occurred in Australia, and

(d)  there are no substantial grounds for believing that there is an extradition objection in relation to the offence

Now, a disclaimer. Although I was a lawyer in my deep dark past, I have zero experience with either crime or extradition law. So I don’t know any more than anyone else. These are simply my uninformed opinions after looking at the Act and extradition treaty, and knowing from two years of investigating Silk Road what SSBD’s role consisted of.

19(b) – any additional requirements imposed by the US-Australia Extradition Treaty are satisfied

Article VI of the Treaty says: ‘Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory’

Like I said, I don’t know what evidence they have, so I can only go on the Indictment. It seems to me “evidence” is pretty lacking in that document.

First, I have no idea what evidence the US authorities have that Nash is SSBD. They may have found some correspondence on the Silk Road servers between he and the site’s owner, Dread Pirate Roberts. Or perhaps Ross Ulbricht, the man accused of being Dread Pirate Roberts, provided his details in an attempt at a plea bargain. Ulbricht, it should be noted, has denied being DPR, and has denied all charges, so this seems unlikely. The indictment claims SSBD was paid around $50,000 per year. This presumably was paid in Bitcoin. It is possible, though again unlikely, that the Bitcoin trail was followed to Nash’s bank account.

Most likely, the “evidence” is an email from an anonymous email account or a message through an anonymous private claiming that SSBD’s real name is Peter Nash. Not too compelling.

This requirement for evidence is also relevant to the next two stipulations.

19(c) – the conduct would have constituted an extradition offence if it had occurred in Australia

The wording says “conduct” not “crimes of which the person is accused”. The only conduct I could find attributed to SSBD in the indictment was:

(1)   in relation to the narcotics charge: sent a message to Dread Pirate Roberts, owner of Silk Road, summarising the actions he had taken during the previous week in his capacity as the primary forum moderator on the Silk Road discussion forums.

–        I doubt that sending a message from one anonymous online account to another anonymous online account constitutes an extradition offence

–        The narcotics charge is the only charge to have any “overt acts” (which sounds similar to “conduct” to me) listed underneath the charges attributable to SSBD

(2)   in relation to the hacking charge: intentionally accessed computers without authorisation for commercial advantage and private financial gain, and in furtherance of criminal and tortious acts

–        no “overt acts” were listed under this charge; the above was a general accusation aimed at all three defendants; this does not sound like it could be considered “conduct of the person constituting the offence,” which is what the Act requires

–        I would be interested to see what evidence they have that SSBD accessed computers without authorisation. There would certainly be no need to do so in order to carry out his functions of moderating a discussion forum. He would have carried out his duties on his own computer, logging in to the Silk Road administration panel (at least the small part he had access to), completely authorised to do so.

(3)   in relation to the money laundering charge: conduct and attempt to conduct such financial transactions which in fact involved the proceeds of specified unlawful activity, to wit, narcotics trafficking and computer hacking

–        no “overt acts” were listed under this charge; the above was a general accusation aimed at all three defendants; this does not sound like it could be considered “conduct of the person constituting the offence,” which is what the Act requires

–        again, I would be interested to see what evidence they have that SSBD conducted or attempted to conduct illegal financial transactions – especially as conducting any transactions whatsoever was explicitly banned on the Silk Road forums, the only site SSBD had access to in any sort of administrative capacity. Not surprisingly, Dread Pirate Roberts wanted to keep all financial transactions on the marketplace, where he received a commission for each one

19(d)  there are no substantial grounds for believing that there is an extradition objection in relation to the offence

“Extradition objections” (s.7) include:

“(b)  the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions …; or

(c)  on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions;”

(my emphasis)

This probably isn’t much of a legal argument, but in the real world, this whole extradition attempt smacks of politics. It’s all show so that politicians can trumpet a win on their long-doomed War on Drugs. Spending this sort of taxpayers’ money to extradite a man who may or may not have been paid a paltry $50K a year to perform mundane administration tasks on what was purely a website for discussions? There is no suggestion that Nash sold drugs himself. Hell, there’s not even a suggestion that he bought drugs. Just these trumped-up charges so conservatives can parade him in front of the media, claiming they’ve brought down some sort of evil drug cartel.

According to the Attorney-General’s Department Annual Reports, most extradition requests are to return ex-pats, not Australian citizens. They tend to be for fugitives that have escaped with hundreds of millions of fraudulently-obtained funds, or child sex predators of the most heinous kind.

The United States requests extradition of two to four people from Australia a year. Should Peter Nash really be one of them?