In our previous article, we gave a general introduction to the dark web. In this article, we analyse the relationship between the dark web and the law. The first question we answer is, ‘Is using the dark web legal?’. Next, we have a look at lawyers on the dark web. Then, we focus on the different efforts to fight crime on the dark web. Finally, we look at the need for dark web lawyers.
Is using the dark web legal?
With all the criminal activity taking place on the dark web, one could wonder whether it is even legal to access the dark web. The short answer is that accessing the dark web is perfectly legal in most countries. In more than 130 countries, the right to privacy is a constitutional right. And browsing the dark web to maintain anonymity is one way of exercising that right. In our previous article, we also pointed to the many positive uses there are for the dark web.
But there are some caveats. While access to the dark web may be legal, what you do on there is what counts. Your actions on the dark web must respect the laws of the country you are in. If you buy contraband or pirated goods on a black market, e.g., that is illegal. Also keep in mind that accessing the dark web is not legal everywhere. There are several countries where access to the Internet is restricted and accessing the dark web in those countries may very well be criminalized. Using a VPN or the TOR network typically is illegal as well in those countries. They include, but are not limited to China, Russia, Iran, Saudi Arabia, and Venezuela. If you are visiting those countries, using TOR or a VPN is illegal.
Lawyers on the dark web
There are several legitimate reasons for lawyers too to use the dark web. Because all information is encrypted, using the Tor browser and the dark web can be a safe way for lawyers and their clients to communicate. As such, it helps protect client and attorney information.
Another legitimate reason to use the dark web is to conduct legal research. The dark web can be useful in the discovery process to collect evidence. Lawyers can communicate anonymously with whistleblowers, including corporate ones. Or they can build a case against infringements of intellectual property, of which there are plenty on the dark web. Human rights lawyers often need the anonymity of the dark web to communicate about and to collect evidence of human rights violations. Lawyers can also ask other lawyers for anonymous advice.
Another area where law firms may use the dark web is to test and enhance their cybersecurity.
Finally, when you, as a lawyer, access the dark web, make sure you abide by your code of ethics. If something is not allowed on the surface web, it also will not be allowed on the dark web.
Efforts to fight crime on the dark web
The dark web provides anonymity, and many transactions are paid for with untraceable cybercurrencies. The combination of both – anonymity and untraceable payments – make the dark irresistible to criminals. Any type of crime with covert transactions can be committed on the dark web. These include murder for hire, blackmail and extortion, illegal sales of drugs and arms, sex trafficking, terrorism, child pornography, etc.
The abovementioned combination of anonymizing technologies and the use of cryptocurrencies to hide transactions also poses serious challenges for law enforcement. The transactions are hidden by design. Law enforcement agencies may therefore very well be unaware of their existence. Gathering evidence that would stand in court poses additional challenges.
So, how does one fight crime on the dark web? Several techniques have been used. A common and successful strategy is to go undercover online. In cases where no cryptocurrencies are used, following the money also has been successfully used. And while transactions may be hidden, any goods that are being traded must be shipped. Monitoring shipping procedures therefore is another useful strategy. Finally, using sophisticated technology and hacking techniques has also been successful. Often, this is done in combination with a so-called honeypot trap, where law enforcement agencies set up a dark web site that pretends to be involved in illicit activities. The moment visitors access the trap website, tools are used to undo the anonymity of the visitors. If they commit a crime or conspire to commit a crime, they can be identified.
The article on the US National Institute of Justice, listed below, provides a summary of a 2017 Report on “Identifying Law Enforcement Needs for Conducting Criminal Investigations Involving Evidence on the Dark Web”. The report identified 40 problems or opportunities, and 46 potential solutions. It also gave a series of high-level recommendations for law enforcement agencies on training, information sharing, new structures for cooperation, new laws for package inspection, and research on crime connections.
The need for dark web lawyers
By now, it has become clear that there is a growing need for lawyers who are familiar with the dark web. The ever-increasing number of cybercrime incidents that originate from the dark web (hacking, data leaks, extortion, malware, ransomware, …) is testimony to that. Another bonus is that if your law firm is familiar with the dark web, that will give you a competitive advantage.
Most cases where there is a need for a dark web lawyer are criminal cases. But that is not necessarily the case. There are developers and lawyers who are offering perfectly legal services. And there are legal markets, too. (Though they are by far outnumbered by the black marketplaces, where “caveat emptor” is even more applicable than usual). In all of these, issues may arise where the services of lawyers are needed. We also mentioned before that there are cases where lawyers may need to rely on the dark web to collect evidence like witness testimony or tipoffs, etc.
Still, at present most cases involving the dark web where lawyers are needed are criminal cases. Your client may be the victim or the perpetrator. Victims of hacking, data breaches and data leaks, ransomware attacks, etc. need the assistance of lawyers as well as of cybersecurity experts. Sometimes, these victims may face additional problems. These days, companies and organizations who fall victim to data leaks, e.g., may face substantial fines because information about their clients has been leaked. In all those cases, the assistance of a dark web lawyer is recommended.
Your client may also be the suspect of crimes committed on the dark web. Lawyers defending suspects of dark web cybercrimes often face additional obstacles. One of those is that de facto the assumption of innocence is undermined when it comes to dark web crimes. Prosecutors as well as jury members see the dark web as a place where crime thrives and just being on the dark web may come across as suspicious. Getting a fair trial often becomes an extra challenge.