So Close, Yet So Far: FBI Access to Silk Road Bitcoin Fortune May be Blocked by the Fifth Amendment

The government's quest for a password-protected bitcoin fortune from the Silk Road shutdown may lead to a Fifth Amendment battle over whether a constitutional right against self-incrimination can protect the website's founder from compulsion of data.

Last week, the government managed to link the illegal drug purchasing website, Silk Road, to the so-called mastermind Ross Ulbricht. The site allowed purchasers to retain anonymity by making illegal drug transactions using bitcoin currency. During the takeover, the FBI seized 26,000 bitcoins (which translates into about $3.2 million dollars) from the site's servers in the form of files comprised of long lists of "digital signatures of previous owners." Although it is unclear as of yet how the government managed to find the site's servers, some say that the FBI's hacking into Silk Road's servers is unprecedented, and that's it's unlikely that the FBI gained entrance by placing pressure on insider administrators. 

Now, the FBI is after Ulbrict's private bitcoin fortune allegedly worth over 600,000 bitcoins, or almost $74 million USD, all of which is contained in a password-protected digitial wallet. Although $74 million may seem like an impressive haul for the government, the millions are currently more of a theoretical treasure trove. That's because in order to truly seize the bitcoins, the FBI will need to obtain Ulbricht's bitcoin private key information. Bitcoin private key information essentially functions as a password into Ulbricht's secure bitcoin account. 

Bitcoins are an entirely online currency. The earliest method of acquiring the currency was through a mining process wherein computer software was used to crack complicated math problems. As bitcoins became more popular, the math equations necessarily became more difficult, causing the value of bitcoins to rise. Currently, 1 bitcoin is equal to $121.30 USD and can be purchased online.

A criminal complaint against Ulbricht has been filed in the Southern District of New York and charges him with narcotics trafficking, computer hacking, and money laundering. The complaint details the illegal nature of the Silk Road website and outlines the site's bitcoin payment system.

If Ulbricht, also known by his online alias "Dread Pirate Roberts," is unwilling to hand over his private key information over and the government is unsuccessful in finding the information through other means, the prosecution may attempt to compel the private key information through a court order. In his defense, Ulbricht could claim a Fifth Amendment privilege, citing protection from handing over the key information as it may be self-incriminating.

United States courts have had few cases dealing with the issue of data decryption and the Fifth Amendment. The cases that do approach this issue deal with password blocks on laptops, computers, storage devices, and cell phones. The two main cases cited in this developing body of law -- United States v. Fricosu in the United States District Court for the District of Colorado and re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 in the United States Court of Appeals for the Eleventh Circuit -- have reached opposite conclusions over whether the Fifth Amendment ca