BY: Terry M. Brown, Jr., Guest Contributor
Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his International Business Litigation and Arbitration seminar the opportunity to have their research papers published with the CLO. The following article is one of many guest contributions from Campbell Law students to be published over the Spring 2015 semester.
In the twenty-first century we have grown accustomed to having a world of information instantly available at the swipe of a finger. In a single minute on the Internet, 2.4 million Google searches are conducted, 230 million e-mails are sent, and over $400,000 is spent in online shops. These daily tasks are only done on the surface of the World Wide Web. If you were to delve deeper than merely buying books on Amazon and looking at yet another picture of your neighbor’s cat on Facebook, you would find a completely different Internet—the Dark Web.
The Internet in Layers
It is best to think about information stored on the World Wide Web as if it were our own planet. The Earth’s crust and thinnest level of the planet would be the “Surface Web.” Just like we live, play, and spend our time on the Earth’s crust, the average Internet user lives on the Surface Web. The Surface Web is made up of the websites we commonly visit like Google and other search engines that comb the Internet for index data. The surface web is generally any website that isn’t hidden behind a password or a pay wall. These are sites that are readily visible and are indexed by search engines.
The Surface Web makes up less than one percent of the Internet. As Michael Bergman, a prominent Deep Web scholar, wrote in a white paper (pdf) on the topic, “Searching on the Internet today can be compared to dragging a net across the surface of the ocean. While a great deal may be caught in the net, there is still a wealth of information that is deep, and therefore, missed.” The deep web makes up the bulk of the rest of the Internet. Private tweets, hidden LinkedIn Pages, and private Internet servers all make up the Deep Web. The majority of all scholarly scientific and academic journals are stuck in the Deep Web, often hidden behind pay walls. While the exact number varies, the Deep Web is generally considered be 400 to 550 times larger than the Surface Web.
While most people spend the majority of their time skimming the surface of the Internet and occasionally digging deeper into the Deep Web, most never touch the deepest level of the Internet—the Dark Web. The Dark Web is like the Earth’s core, dark, expansive and potentially dangerous. The Dark Web cannot be accessed by using Safari, Internet Explorer, Google Chrome or any other traditional web browser. The Dark Web is accessible only by using The Onion Router or “Tor,” free software that gives its users not only the ability to access the deepest darkest corners of the Internet, but also protects those users’ anonymity. Tor works by routing the Internet traffic of individual users through multiple volunteer servers around the world before finally delivering the user to their requested content.
The term “Deep Web” is often used to discuss Tor and other aspects of the “Dark Web.” Unlike the Dark Web, the Deep Web is fairly innocuous—filed with personal and business websites that receive little to no traffic and private servers and websites hidden behind login screens. The Dark Web is a part of the Deep Web, but not everything in the Deep Web is a part of the Dark Web. The two terms are often incorrectly used interchangeably but they are very different. For our purposes the term “Deep Web” will only be used to refer to the aspects of the Internet right below the surface, while “Dark Web” will be used to refer to the portion of the Internet only accessible via Tor.
The Good, The Bad, and the Unregulated
International law consists of rules and principles governing the relations and dealings of nations with each other. This somewhat antiquated way of thinking is problematic when it comes to the Internet. The legal issues that typically arise around the Internet rarely involve disputes between nations and their dealings, but often do involve individuals of different nationalities. The problem is compounded when dealing with the Dark Web, where users route their address through multiple servers to stay anonymous and undetected. It is virtually impossible to tell in which country a user of Tor is located.
Foreign nationals are not subject to courts in United States due to lack of personal jurisdiction. There are two categories of personal jurisdiction, general and specific. General jurisdiction exists when a defendant has “continuous and systematic” contacts with a state. Specific jurisdiction can be shown by proving that the claims asserted in a particular case arose from or are related to the defendant’s actions or contacts with that state. Specific jurisdiction can only be exercised when the defendant has minimum contacts with the forum state.
However, on the Internet data can easily enter any sovereign territory undetected. There are no borders on the Internet and no customs officers protecting entry. One tool used to establish jurisdiction on an international defendant is the federal long-arm statute.1 Under the Federal Rules of Civil Procedure, a foreign national that is not amenable to personal jurisdiction in a state in the United States may be subject to jurisdiction in federal court if the foreign national has contacts with the United States sufficient to satisfy the requirements of due process.
The Federal Long Arm Statute has three requirements. First it must be established that there is a cause of action arising under federal law. Second, the defendant is not subject to the courts of any state. Finally it must be established that the Defendant had contacts with the United States so as to satisfy the requirements of due process. Courts have held that specific jurisdiction in the Internet context can be based on an international defendant’s activity directed at the forum state. For the activity to count, it must be directly aimed at the forum state.
The problem is not only whether the Dark Web be regulated, but how can it be regulated? One common way for international law to be regulated is through treaties. In 2012 the United Nations intended to pass a treaty on telecommunications and the Internet. The treaty proposed by the United Nations International Telecoms Union (“ITU”) was aimed at giving national governments control of the Internet. The ITU is a United Nations organization responsible for working with telecoms use around the world.
The proposed treaty sought to “de-fragment” the Internet and help the Internet run more effectively through the use of Government oversight. The treaty sought to establish that governments have an international legal right to access international telecommunication services, something not previously part of international law on telecommunications.
Ultimately the United States, along with a coalition of other nations including; The United Kingdom, Canada, New Zealand, Egypt, the Czech Republic, and Qatar, voted against the treaty causing it to fail. The United States cited the benefit that the unregulated Internet has given the world since its inception and an unwillingness to muddy those waters.
With no treaty and no regulation, the Internet has been left a world without borders and without regulations. It is a bountiful world filed with limitless information, but it has its dark corners.
The Silk Road: We Found Drugs in A Lawless Place
The most legally murky and publicly vilified aspect of the Dark Web is Silk Road. During the Han Chinese Dynasty, the Silk Road was the name of a series of trade and cultural transmission routes spanning from China to India.2 The original Silk Road was used to carry goods, religions, and technologies across the Asian Continent. Now the electronic Silk Road (“Silk Road”) is a trade route of a different sort—operating in the Dark Web as an online marketplace where users could buy drugs, guns, and a multitude of other illegal items.
Before it was shut down by the FBI, if Silk Road’s web address were typed into a traditional web browser it would return an error message.3 With Tor installed on your computer, you could to experience what’s been referred to as “Amazon for Drugs.” Silk Road was similar to traditional online entities the average Internet user is familiar with like eBay and Craigslist. Vendors would pay money to set up a digital storefront. When a new user logged on to the Silk Road a blank screen would pop up prompting them to create a user name and password. Instead of having to verify an age like many websites, Silk Road made users select a country of origin. While the country information was not verified, it presented interesting jurisdictional and legal issues for Silk Road users.
Once on Silk Road users were treated to a familiar e-commerce layout. There were sections for frequently asked questions, message boards for feedback, and even customer service. Purchases were made using the cryptocurrency bitcoin. Bitcoin is a decentralized electronic form of currency that was created and is distributed independent of banks or government. User’s “traditional” currency is converted to bitcoin and the bitcoin is linked to an electronic numerical wallet making it difficult to trace purchases.
Silk Road was created by a user going by the name “Dread Pirate Roberts” in early 2011. By that summer, members of the U.S. Senate were calling for the Drug Enforcement Administration and Department of Justice to step in and shut the website down. Shutting down Silk Road created several international problems for United States law enforcement agencies. Since the Dark Web uses encryption to make its users and their locations anonymous it is difficult to determine exactly who has the jurisdiction to physically or digitally take suspects and servers into custody. Australian police and DEA agents have targeted several Silk Road users and made arrests but have had a difficult time getting convictions. The first person in the world actually convicted of a Silk Road related crime was an Australian cocaine and MDMA dealer in February 2013—two years after the website’s inception.
In October 2013, Ross William Ulbricht was arrested in San Francisco, California and accused of being “Dread Pirate Roberts.” In conjunction with his arrest, the FBI seized 26,000 BTC from Silk Road accounts which were worth $3.6 million and an additional 144,000 BTC ($28.5 million) that allegedly belonged to Ulbricht. On February 3, 2014, a grand jury in Manhattan indicted Ulbricht on counts of participation in a narcotic trafficking conspiracy, a continuing criminal enterprise, a computer hacking conspiracy, and a money laundering conspiracy. The case went to trial in early 2015.
Ulbricht could be charged because he was an American citizen, but what happens when the culprits are foreign nationals? In 2014, the Federal Bureau of Investigation and Department of Homeland Security headed up a task force along with Europol—the leading European law enforcement agency—to crack down on Dark Web drug and weapons dealers around the world. Over 400 Dark Web services were taken down and Europol seized $1 million worth of bitcoin as well as €180,000 in cash. Raids were carried out in Bulgaria, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Latvia, Lithuania, Luxembourg, the Netherlands, Romania, Spain, Sweden, Switzerland, the United Kingdom, and the United States.
Silk Road is not the only dangerous area of the Dark Web that the legal system is scrambling to find ways to combat. EuroArms is a similar Dark Web exchange site that sells and delivers weapons for Bitcoins. Child pornography is commonplace all over the Dark Web and there are even websites where a hit man can be hired at the press of a button.
The Dark Web is not just a haven for drug dealers and pornographers. For people living in countries controlled by oppressive regimes, the Dark Web offers a sense of community and offers an outlet to speak out. In places where a government official or militant leader can monitor incoming and outgoing tweets—and in some cases block Twitter access all together—the Dark Web provides a degree of safety and anonymity. Researchers at the University of Luxembourg determined that along with expected activities like illegal sales, human rights and freedom of information materials are some of the most commonly accessed files (pdf) on the Dark Web.
Where Do We Go Now?
Something needs to be done to combat the darker aspects of the Dark Web, but what exactly can be done? Silk Road and the Dark Web are so new that case law, scholarly articles, and even the legal system have not caught up yet. The best way to understand the problems the Dark Web presents is through the lens of public policy. The Dark Web is not inherently bad, but it is a classic example of the “one rotten apple spoils the whole bunch” scenario where if the negative aspects of the Dark Web have the potential to ruin the whole thing if they are not properly controlled.
The first legal problem is dealing with those who are swept up in the Department of Justice’s nets. Since all Silk Road purchases are delivered via United States Postal Service, the purchaser of illegal drugs can be found and tried relatively easily. While these individual purchasers are certainly guilty of various crimes, arresting them does nothing to stop the bigger problem. It is the people who sell illegal drugs and weapons on the Internet who are the real source of trouble. If the supply is cut off then there is no way for the Silk Road black market to continue. The sellers are by and large foreign citizens who typically fall outside the reach of the United States justice system.
If law enforcement officials were able to actually locate foreign buyers and sellers of illegal goods on the Dark Web, courts would have jurisdiction under the federal long arm statute. Trafficking in illegal drugs is a recognizable cause of action under federal law. Foreign nationals would not typically be subject to jurisdiction in an American court, but selling goods directly to American citizens and shipping goods through the U.S. Postal Service would count as sufficient contacts. These contacts would give American courts the jurisdiction to try international Silk Road buyers and sellers.
This is easier said than done however, given the level of protection and anonymity offered by Tor and the Dark Web. The problem lies in finding the real criminals of the Dark Web. For every website that is shut down—as of November 2014 the Silk Road was on version four—a new one pops up in its place. For every Ross Ulbricht that is arrested there are hundreds more lurking in the bowels of the Dark Web. How can the legal system fight an enemy that it can’t even find? One of the easiest ways to curtail illegal activity on the Dark Web is through regulation. As demonstrated by the failure of the proposed ITU treaty, regulation is not on the horizon any time soon.
Since its inception the Internet has been all things to all people, primarily because the government has not stepped in to regulate the Internet. The Internet is more than just a collection of ideas—it is an ideal. Regulating the World Wide Web would not just constrict the criminal element lurking in the Dark Web, but it would also infringe on the freedom and creativity that is enjoyed by even the most casual visitor of the Surface Web. The language proposed in the ITU treaty was especially troubling because it had the potential to stifle all speech on the Internet and would give the government too much power over what individuals and businesses say and do on the internet. The best option to combat the Dark Web is for nations to continue to ban together and learn to use the Dark Web themselves to target and flush out the sellers and creators of this malicious aspect of the Internet.
As the law currently stands, the legal system cannot do much to combat the darker elements of the Dark Web. It is clear that some regulation must be put into place. There are aspects of the Dark Web that present real danger to our society and the law is not equipped to handle them at the current juncture.
However, the Dark Web is not all bad. In 2013, heavy metal band Iron Maiden used the Dark Web to determine what areas of the world digitally pirated their music the most. Instead of suing the pirating fans like bands in the past, Iron Maiden set off on a world tour focusing on these regions. Iron Maiden was under the assumption that these areas clearly have fans and that while downloading an album is easy, it is still impossible to download a concert. The plan worked in Iron Maiden’s favor; the concert in their most-downloaded city grossed $2.58 million, proving that even the darkest web can have a silver lining.
Terry M. Brown, Jr. is a 3L student and will graduate from Campbell Law School in May 2015. He may be reached by email at firstname.lastname@example.org.