Cybercrime: The Borderless Crime Protected by Constitutional Loopholes
Jennifer Barnard
Wilmington University
Abstract
The deep web also sometimes referred to as the dark web is a part of the internet beneath the surface web; an area of the internet in which one is unable to research without a specific browser. Although the deep web and dark web are parts of different layers of the internet, they will be used interchangeably throughout the paper. However, there is no discussion regarding the different layers of the internet. The history of the deep web is discussed along with the notorious silk road. Moreover, how the silk road helps to establish more dark markets throughout the dark web. The deep web is a cesspool for anonymous crimes. Due to the internet not having jurisdictional borders, there are many legal loopholes that criminals use to get away with their crimes, naturally causing problems later on during litigation. Additionally, constitutional loopholes often make it difficult for law enforcement to make an arrest. Several cases will show examples of constitutional loopholes in both Amendments One and Four, that allow the perpetrators to get away with their crimes. Unlike traditional crimes where the litigation is being held in the same state or country of the crime, crimes such as child pornography, human trafficking, and dark markets, jurisdiction may become gray, due to different laws in different states as well as countries.
Keywords: cyberlaw, deep web, dark web, cybercrime, law enforcement
Introduction and Background
When committing a severe crime, it is safe to say that there will be consequences upon arrest. For the most part, crimes are seemingly cut and dry; a perpetrator commits a crime and is fined or sometimes even imprisoned. However, what about the crimes without borders? What about cybercrimes? What happens when a crime is committed outside of its jurisdiction?
Crimes on the deep web are often untouched due to anonymity and legalities such rights protected by the Constitution (Gehl, 2018). Terrorism, child pornography, drug trafficking, and human trafficking happen every day on the deep web. The question is, what is being done about it. The dark web is below the surface of the Clearnet ( known as the world wide web or surface web), where terrorism, drug trafficking, human trafficking, weapon trafficking, and child pornography are readily available to anyone who knows how to find it.
Since the beginning of time, there have been crimes. Crimes have been going on for so long that it is written about in the bible. In the book of Genesis Chapter 4, murder is recorded between two brothers Cain and Able (Zondervan, 1985). Indeed, the punishments for such crimes have changed since biblical times, but murder is murder and is still a crime. However, Cybercrime is a new type of crime. Cybercrime until recently was never thought of, and it is a crime that was beyond the American forefather's imagination. Although most cybercrimes such as child pornography, kidnapping, and terrorism have the equivalent consequences as the traditional crimes, it is much harder to investigate and charge the offenders with those crimes. Moreover, there seems to be public ignorance regarding the complexities of cybercrimes and their charges.
In many cases, cybercrimes happen over something called the deep web, also referred to as the dark web. What is the deep or dark web? The deep and dark web is below the surface of the internet, also referred to as the Clearnet. When people think of the dark web, some may think that it is a massive place, perhaps even more extensive than the surface internet. However, the deep web only has tens of thousands of websites oppose to the Clearnet, which has billions (Gehl, 2018).
Contrary to popular belief though crime does happen on the deep web, the deep web is not all about crime. One can find sites such as cooking recipes, blogs, forums, and even Facebook and Twitter. The deep web is about anonymity, being able to surf the internet without being tracked by the government. It is also used for whistleblowers to release information without fear of retaliation (Gehl, 2018). Though it is important to note that not everyone on the deep or dark web is on it for malicious purposes, Cybercrime and the lack of action taken by law enforcement due to lack of awareness and anonymity must be addressed.
Indeed, there have been some successes and attempts of catching the virtual criminal with software such as Darpa's Memex in addition to law enforcement planting honeypots (virtual traps) throughout both the Clearnet and the dark web (Mendel & Sharapov, 2016). However, as in real life, the cybercriminal is on top of law enforcement tactics. They use both physical and technological techniques to help prevent themselves from being apprehended (Eneman, 2009). Moreover, one of the biggest challenges is charging a perpetrator with their crime.
Cybercrimes are crimes without borders. In the United States, crimes and their penalty depend on where the jurisdiction lies. Depending on where the crime is perpetrated depends on which laws will be enforced. The same rule applies to cybercrimes at international levels (Craig, 2013). In addition to the jurisdictional problems of cybercrimes, there are also constitutional issues that come into play while investigating cybercrimes. Even though the internet is without borders, Americans still have the same constitutional rights as they would typically have in the prosecution of a crime. Most of the time, criminals will use the defense that either their First Amendment (freedom of religion, speech, and press) or their Fourth Amendment (unreasonable search and seizure) were infringed upon (Craig, 2013). Indeed, these laws are a necessity and what the United States was founded on. However, these laws are also making it challenging for law enforcement to do their jobs and prevent more cybercrimes from happening adequately.
Another major issue with cybercrimes is anonymity. Like traditional perpetrators, cybercriminals do not want to be found. Not being discovered is easier than ever due to the ability of anonymity. Although the deep web can still give away one's location and is not entirely foolproof, there are other methods to ensure anonymity such as VPNs (Virtual Private Networks) (Gehl, 2018). Due to the dark webs primary focus being on anonymity, it is making it even more difficult for law enforcement to find cybercriminals. Furthermore, the dark web is mostly a mystery to the public and something seen on crime tv shows. With the dark web seemingly being fictional, people are more likely to leave themselves open to attacks leaving the public free to vulnerabilities.
Though Clearnet (World Wide Web) has been around since the late 1980s, the deep web has only been around since 2000. Freenet is an innovative browser that allows access to the deep web. Freenet was founded by Ian Clarke, who was a computer scientist. Ian Clarke set the Freenet browser up to be a peer to peer network (Gehl, 2018). According to the book Weaving the Dark Web, Freenet's nodes (central connecting points) are in a world topology and connect to a small number of nodes, which are both neighbor and random distant nodes. Additionally, "none of the nodes have a complete map of the network" (Gehl, 2018, p.55), which means that it would be difficult for one to trace back to the sending source or the person who is using Freenet.
Another popular browser that is often used is Tor (The Onion Router). The infamous Tor, also known as "The Free Haven Project," was in the invention stage in 1999. However, there were some coding opportunities, and Tor beta was not released until 2002. Though the beta was released, coding was still a challenge with Tor, which caused the release date to be moved back to 2003. Even with the premature beta release in 2002, there were still complications with Tors coding. Mathewson and Dingledine came up with something called "rendezvous points," which allowed the anonymous hosting, and hidden services were born (Gehl, 2018). The Tor project was founded by both the Naval research lab and by David Molnar, and Michal Freedman. The purpose of Tor was to protect people's identities from governmental surveillance (Gehl, 2018).
Lastly, I2P was invented by Lance James, who also went by the aliases nop, no operation, 0x90. James's inspiration was based on Freenet; however, frustrated with how slow Freenet was, James decided to invent I2P. James recruited Jrandom, who began working on I2P. In order to help fix the frustratingly low latency of Freenet, he decided to use relay chat, allowing multiple users to use it. With I2P, people were able to access the dark web with a browser configured to HTTP and configured to the I2P router. Unlike the Clearnet, people did not have to pay a web host if they wanted a website. Instead, they were able to add too what they called "eepsites" by adding HTML and CSS on their computers. I2P was released to the public in 2003. In 2007, Jrandom decided to leave I2P, and zzz is now leading I2P (Gehl, 2018).
When people think about cybercrimes, it seems as though most think about hacking and viruses. Whereas hacking and viruses impact just about everyone with a Wi-Fi connection, it is not the only Cybercrime that happens. Many other crimes happen on the dark web. One of the most notorious deep websites is the silk road. The silk road was a known drug trafficking website and was founded by Ross Ulbricht or "Dread Pirate Roberts." (Trend Micro, 2015). The Silk Road was originally designed to sell illegal drugs anonymously without having to meet up with a drug dealer. However, the silk road was also used to sell other illegal services such as hacked accounts, pirated content, fake passports, and fake driver licenses. Before being his arrest, Ulbricht was even considering trafficking weapons through the silk road. Ulbricht was detained in San Francisco on October 1, 2013 (Olson, 2013). Though The silk road is no longer in existence, the underground market has grown, criminals have gotten smarter, and access to anything illegal has become significantly simplistic. Moreover, there are legal loopholes that allow this criminal activity to continue. While Cybercrimes are most definitely illegal, between anonymity and legalities, finding the right tools to commit the crime is painfully easy and is easier to carry out.
When connecting a computer or any device to the internet, the device becomes vulnerable to threats that can harm the device. For this reason, people spend lots of money on antivirus and malware software to protect their computers. Where hacking, spoofing, and sending viruses are considered cybercrimes, cybercrimes are more than just a computer crime. Traditional crimes such as terrorism, human trafficking, drug trafficking, weapon trafficking, and child pornography are happening with just a stroke of a key. These crimes are not only happening throughout the world wide web but also on the deep web.
One of the most prevalent cybercrimes happening today on the deep web is the market industry. The silk road proved the demand for drugs, fake IDs, hackers for hire, and access to endless child pornography. By signing up for an anonymous email address such as protonmail and coming up with a handle and a purchase of bitcoin (Cryptocurrency), people were able to purchase whatever they want without a trace. Even after the government seized the silk road, the deep web market boomed. With the Silkroad at the forefront of the news, the silk road brought attention to the deep web inadvertently, increasing the number of tor users (Dolliver et al., 2018).
When signing onto the deep web, there is a wide variety of markets. While searching the deep web, it is relatively easy to find Sites such as Whitehouse, silk road 3, and the deep market. Similar to websites such as Amazon, eBay, or other .com sites, there are categories of items listed on the side of the page that help people navigate to whatever illegal product they would like to buy. Additionally, there is a section for the consumer to pick which vendor they would prefer to purchase from. For the most part, deep markets are focused on selling illegal drugs such as heroin, cocaine, marijuana, and prescription drugs. Also, like online shopping sites, illegal products have to be distributed physically to the location of the buyer. By trafficking illegal products online, this makes the united states post office almost a carrier of the illegal drug market. Though there is some risk of getting caught during the transport phase, it is still less of a risk than actually meeting up with a drug or weapon dealer (Dolliver et al., 2018).
In the Journal A Geographical Analysis of Drug Trafficking Patterns on the Tor network, (Dolliver et al., 2018) discuss the different patterns of drug trafficking and the countries with the most distribution of the drugs. They base their research on the crypto market agora, which at the time was the most prevalent market on the deep web. They found that the major contributing countries were the United States, the United Kingdom, Australia, France, and the Netherlands. Their findings that prescription drugs were sold more than non-prescription drugs, and that "Out of a total of 20,742 active listings on the site, 14,210 were drug items" (Dolliver et al., 2018, p.54). The drug lords of the deep web also noted that they had the option to mark their packages worldwide or undeclared, allowing themselves to remain anonymous during the transport of the drugs. The statistics were provided from a website that no longer exists and voluntarily shutdown in 2015 (Dolliver et al., 2018). However, one must wonder how much the statistics have changed with so many more deep web markets now available to the public? With anonymous buying, transporting, and easy access to drugs all over the world, it is no wonder that the world is under a drug epidemic.
Another significant problem on the deep web is human trafficking and child pornography. Both of these crimes are indeed sick and more disturbing than drug and weapon trafficking. However, like traditional criminals' cybercriminals are staying on top of ways to evade the police.
Disturbingly child pornography is nothing new. Additionally, it is relatively easy to find on both the Clearnet and the deep web. In order to avoid arrest, child predators use phrases such as "cheese pizza or cheese pizza with or without sausage" with the pieces of pizza indicating age preference on public forums to advertise their interest. Likewise, human trafficking is booming all over the world. It is not only being done in person but also over the web through hidden links that are in plain sight, such as advertisements on websites (Mendel, & Sharapov, 2016). Surprisingly finding information regarding human trafficking on the dark web has been a challenge. However, Black Death is a website on the dark web that allows recruiting and sex labor trafficking (Kaur, & Randhawa, 2020). Digging deep into the dark web will bring up not just human trafficking websites but murder for hire, human experiments, and human organ trade. The sites are often hard to find, and the legitimacy of the websites is debatable.
With child pornography being a high-risk crime, some people may think that getting arrested would be on the minds of the child predators. It is indeed on their minds; however, the majority think that they will never be caught. Moreover, some admit that their addiction to child pornography outweighs the risk of arrest. Eneman (2009) did a study with several convicts in prison and in mental facilities that had been convicted of child pornography. The consensus was that the pleasure of watching child pornography was far more important to them than the risk. Some even made the comment that though they often thought about getting caught, they always assumed that it would never happen to them. When Eneman asked them what they did to avoid being apprehended, they admitted that the child pornography community has stringent rules and guidelines that needed to be abided be followed. Moreover, the child predators admitted that they were able to tell who the police were by their language, and the child pornography community would communicate with each other. They would, in a sense, compare notes with regarding other users. Additionally, the child pornographers admitted to using encryption techniques and programs that allowed them to use anonymity (Eneman, 2009). With the deep web making child predators able to hide under anonymity. Law enforcement is having an even harder time catching these criminals.
Child pornography is indeed a massive problem within not only the United States but all over the world. With the deep web making child predators able to hide under anonymity. Law enforcement is having an even harder time catching these criminals. On the website Playpen, there were over 200,000 members who were readily available to watch children be sexually abused for their pleasure. Lolita City had over 100 GB of child pornography in both pictures and videos, with 15,000 members ready to watch, both sites were taken down by the FBI (Kaur & Randhawa, 2020). Even though the FBI has seized sites, there are still many out there with the same staggering numbers. Worse than the child pornography sites are the red room sites that one cannot access through Tor as it is way too slow to handle the stream. One of the famous sites featuring not only child pornography but also torture was Daisy's Destruction. This video featured a child not only being raped but tortured. Even more revolting is that people would pay to watch. This gruesome website was featured on "hurt core" pedophile sites. The founder of the website Peter Scully was sentenced to life in prison in 2018 (Kaur & Randhawa, 2020).
Most everyone who was of appropriate age can remember when September 11, 2001, happened. It was not only one of the most tragic days in American history, but it also changed the dynamics of American living. Terrorism was no longer events overseas. It became a problem within the United States borders. When Isis (Islamic State of Iraq and Levant) became prominent, a lot of the activity provoking the attacks happened over the dark web. For over a decade, the terrorist group Al-Qaida was using the dark web to communicate with each other regarding planned attacks, recruiting, and indoctrination of their beliefs. In 2015 the deep web played such a significant role in terrorism that the communications regarding the Paris attack were all done through a dark web forum on Tor (Weimann, 2016).
To make matters worse, the terrorist posted their attack and propaganda on the dark web so that everyone could see it (Weimann, 2016). Once again, between the encryption, anonymity, and hidden links it is difficult for law enforcement to find these websites or even track where the threat is coming from. Of course, ISIS did not just post on the deep web. It is common knowledge that they posted beheadings and propaganda on the surface web. However, the fact that there is a place on the internet where they can discuss their next attack, post instructions, and whatever they want without being traced is indeed startling.
Law enforcement is fully aware of what happens on the deep web, and they are indeed trying to curve the crime. There are now several departments that focus on cybercrimes. DARPA (Defense Advanced Research Project Agency) is one of the departments that focuses on Cybercrime. DARPA created a program called Memex to help track human trafficking by monitoring forums, chats, and hidden links by using algorithms that continuously looks for different phrases relating to the crime that is being investigated. In addition to looking for key phrases on the dark web, it also searches social media and the Clearnet (Mendel & Sharapov, 2016). Memex is a vital program that is continuously helping identify criminal activity throughout the dark web.
Additionally, law enforcement is actively planting honeypots in hopes of catching someone in the act. Honeypots are live traps that are planted within advertisements and are a form of a network intrusion detection system. The purpose of the honeypot is to lure in hackers and other perpetrators and record explicit details of their visit to the site (Whitman & Mattord, 2011). The FBI has been very active at seizing websites such as the silk road, Daisy's destruction, tracking terrorists, and sometimes even preventing terrorist attacks. Preventive measures taken are significant and show that law enforcement is attempting to be proactive with our cybercrime problem; it is still faulty.
Cybercriminals are staying on top of these tactics; they have checks and balances in place to ensure that people whom they are communicating with are not the police. Honeypots, though, useful are something that cybercriminals are aware of, and there is software available such as "The honey pot hunter," which tracks and reports honeypots that are set to catch these criminals (Hayatle et al., 2013). As police come up with new ideas and research vulnerabilities, so do the criminals. Cybercrimes that would be hard to prove based on words. Such as the intent to harm, how can one prove that the perpetrator was not joking? When it comes to freedom of speech, except for child pornography, it would be hard to prove if the perpetrator was genuinely intending on committing the crime or merely joking.
Another problem that law enforcement is running into is the constitution. When the constitution was created the forefathers of the United States did not fathom electronics. Electronics were not even a concept in the year 1787. One of the major Amendments that are always in a debate when it comes to internet crimes is the First Amendment (Freedom of Speech). Even though the first Amendment covers most freedom of speech, but it does not cover child pornography, defamation, threats that are intended to be acted upon, and solicitations to commit the crime (Craig, 2013). However, the laws in place are not enough to help prevent cybercrimes from happening and protect the victims in these heinous crimes. The problem, however, some of the clauses are too broad such as obscenity. It is written in the law, that child pornography is indeed illegal in the United States.
There are still arguments about whether or not it is violating the rights of American citizens to express their First Amendment. In order to put guidelines into place to prevent First Amendment disputes, the court created a three-part test to determine what is not protected by the First Amendment, which resulted after the Miller v. California case. During Miller V. California, 413 U.S. 15 (1973) was convicted for mailing out four books that contained obscenity on marital sex. Miller later appealed his conviction (Hudson, n.d.). In order for something not to be covered under the First Amendment, it must cause the average person to find the material sexually appealing. It must be offensive in a sexual way, and is not of artistic, political, scientific value or "Lacks serious literacy" (Ward, n.d.). Ultimately Miller rejected the decision because it was unreasonable and unconstitutional not to accept the same expectations of what is offensive in one state that would not be considered offensive in a place such as Las Vegas (Ward, n.d.). This total rejection of the decision based on where the crime is committed brings up personal jurisdiction again. If a crime is committed in a country, that child pornography is not offensive. Is then not punishable by law in that specific country?
Due to the Internet, there have to be some changes in place in order to accommodate the new technology. In 1996, in order to accommodate these new needs, the courts came up with the 1996 Communication Decency Act (CDA). The CDA is outdated, and some protections put into place have failed due to the vagueness of the statue. In the case, Reno v. ACLU, 521 U.A. 844, 874-81 (1997), the statute failed because by stopping sexually explicit content in order to protect minors it was also preventing adults from receiving the content which violated their constitutional rights under the First Amendment. In addition to the Protect ACT established in 2003, which protects children from being exploited. However, even though this act is a great tool, it also has faced its constitutional challenges (Craig, 2013). One of these challenges is the First Amendment and virtual child pornography. With technological advances, preparators were able to take pictures of children and morph them into virtual children performing sexual acts. The Child Pornography Prevention Act (CPPA) was created in 1996 and was looking into halting this type of pornography. However, once again, the First Amendment came into factor once again. During the trial of Ashcroft V Free Speech Coalition, Ashcroft argued that CPPA's definition of child pornography, which included virtual children, was a violation of the First Amendment. The reason behind this claim was because the child was virtual therefor; no child was being harmed. With the virtuality of the picture under consideration, the supreme court then had to decide whether the picture was indeed considered to be obscene or child pornography. One of the arguments was that by allowing virtual child pornography, it allows the predator to seek out the real thing potentially. The court ruled that they could not break the First Amendment based on that it has the potential to cause a crime. The justice concluded that it would be hard for them to determine if virtual children were being used for movies or porn, therefore, outlawing it would be too broad and may violate the First Amendment (Kornegay, 2006).
The other Amendment in the Constitution that makes it very difficult to fight Cybercrime is the Fourth Amendment. The Fourth Amendment prevents unreasonable search and seizure in addition to ensuring that law enforcement must have warrants to search for one's property and have a probable cause (Craig, 2013). One example where someone's privacy was violated is the case of Jones v. State, Jones was a drug trafficker, and law enforcement was tracking his movement for a month by using a GPS. The court ruled that by tracking Jones, every movement gave law enforcement an intimate look of his daily life there for violating his Fourth Amendment. Jones's case was dismissed because the expectation for privacy was violated (Gray et al., 2013). Though Jones v. state was not considered to be a cybercrime, this example shows how easy evidence can be thrown out based on the broadness of the law.
When it comes to Cybercrime, police cannot merely go through computers, emails, or even request this information from the providers in order to collect evidence. Like talking on the phone and having private conversations, email is also protected under the Fourth Amendment. People have a right to their privacy; therefore, in order to go through someone's email, law enforcement must have a warrant for those emails before they can seize those emails from service providers (Craig, 2013). Obtaining warrant and the probable cause may be difficult for law enforcement, especially if the perpetrator is using some form of anonymity. Additionally, the police are not able to search the computer or electronic device merely on suspicion. Also, people overseas are protected by the same rights as those in America. The First and Fourth Amendments apply to them, even though they are not citizens (Craig, 2013).
All in all, between the lack of education, resources, and experience amongst law enforcement, cybercrimes are often going unenforced (Craig, 2013). Leaving cybercriminals free to continue to build their markets, trade child pornography, commit terrorism all on the deep web where anonymity is almost a guarantee. Where all someone has to do is download a browser. By downloading Tor, I2P, or Freenet, they have all the access to the underground markets hidden behind the screen of their computers.
Conclusion
The forefathers of the United States created the constitution in order to protect American's rights. However, when the constitution was written, electronics were not existent, and the internet was beyond anyone's imagination. For this reason, when the constitution was written, it was not meant for cyber laws. For this reason, there are many loopholes in Amendments such as the first and fourth Amendment. With the constitutional loopholes in place crimes such as virtual child pornography, terrorism, and black markets on the dark web are able to continue. Law enforcement and lawmakers need to be able to continually keep up with innovations that allow cybercriminals to continue to carry out their crimes. In addition, legislators and congress need to revise the loopholes to further protect victims from cybercrimes in addition to not violating the Americans rights. Finally, teachers and parents should become familiar with the dark web and educate children of "stranger danger" on the web. If America continues in the direction we are going regarding cybercrimes, not only will there be new innovations to combat policing tools such as honeypots, but the cybercriminals will get smarter, and there will continue to be victims. Our drug epidemic will continue to grow, and the ability to catch the perpetrator will continue to diminish. None of this will be fixed overnight, and the situation itself is complicated. However, it is time to take a proactive approach instead of continuously taking a reactive approach.
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