No law against providers of darknet marketplaces

Providers of illegal marketplaces on the Internet will not be separately threatened with a penalty. A corresponding bill by the German government (PDF only in german) has been amended by the Bundestag on this point. However, the operation of criminal marketplaces will continue to be punishable by a separate paragraph. The CDU/CSU and SPD voted in favor of the law on Friday night. FDP, Greens and Left voted against. The AfD abstained.

“Anyone who operates a trading platform on the Internet whose purpose is to enable or promote the commission of unlawful acts” can be punished with up to five years’ imprisonment, and even up to ten years in commercial cases or in the case of gang crime. To this end, a new section 127 will be added to the Criminal Code (StGB). In a Bundestag hearing at the beginning of May 2021, criminal law experts had criticized the introduction of the new criminal offense as superfluous due to the lack of criminal liability loopholes.

Furthermore, under Section 127, Paragraph 4, a platform operator faces a penalty of up to ten years if he “intends or knows that the purpose of the trading platform on the Internet is to enable or promote crimes.” The explanatory memorandum to the law says: “This covers above all those cases in which the trade in crime as a service (‘crime as a service’) is deliberately enabled or promoted, or in which the trade itself is a crime, such as the distribution of child pornography content .”

State Trojans in investigations

In the future, investigators will be able to use state Trojans for the aforementioned offenses of Section 127 by means of both source telecommunication surveillance (source TKÜ) and online searches. However, only in cases involving commercial operation or the promotion of crime.

According to the amendment (PDF), the wording has been deleted according to which, like the platform operators, anyone “who intentionally or knowingly operates a server infrastructure” for such platforms will be punished. This is now to be recorded as “aiding and abetting” according to section 27 of the StGB. According to the explanatory memorandum to the law, this only applies in the case of criminal acts according to paragraph 4 and in the case of gang crime according to paragraph 3. Specific reasons are not mentioned, there is only talk of “various reasons”.

Platforms with a “lawful business model” are not to be affected by the new criminal offense. “The same is to apply to platforms which, contrary to their legitimate purpose, are used in individual cases by a user to trade in illegal goods, services, content or people for the purpose of exploitation,” the explanatory memorandum to the law states.

In its amendment, however, the coalition points out that a “criminal” purpose of the trading platform can already be assumed if only individual categories fulfill such a purpose. “If, for example, in addition to harmless categories such as ‘bicycles’ and ‘cars’, a category ‘weapons of war’ is also found on a trading platform, then the assumption of a corresponding purpose orientation of the platform as a whole suggests itself,” it says in the justification.

Moreover, the new law does not exclusively refer to platforms that are only accessible in the darknet via Tor browser.

Despite the changes, the new law should make it easier to convict host providers for providing darknet servers. One such case is currently being heard by the Trier Regional Court. The operators of the cyberbunker on the Middle Moselle are accused of aiding and abetting more than 249,000 criminal acts.

However, the difficulty of proving that the host providers aided and abetted criminal acts remains even after the amendment to the StGB.