The Federal Ministry of the Interior wants to crack down on “Darknet markets” and define a new criminal offence. But vague formulations could also place operators of gate relays or VPNs under general suspicion and deter normal users. Now the “Reporters Without Borders” association is also speaking out against the draft law. The number of VPNs is still increasing!
Drugs, weapons, child pornography – in Darknet there are all that. As early as January, North Rhine-Westphalia therefore submitted a bill to the Bundesrat calling for “the introduction of independent criminal liability for the operation of Internet-based trading platforms for illegal goods and services”. In mid-March, after some discussion, the Bundesrat passed a bill on this basis. The draft contains 24 pages explaining why it should be easier for investigating authorities to take criminal action against operators of illegal trading platforms in Darknet. A simpler summary in natural language can be found here.
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Meanwhile also the renowned association Reporters without borders expressed itself on its web page against the bill. With the draft threatens anonymization services the out. In its press release the arguments of the interior ministry specified in the bill are not called legally durable in the bill.
Darknet law: that’s what the draft says
- TOR Browser is very popular with users who want to protect themselves from tracking on the Internet. According to the draft, there should be a new criminal offence under §126 a, which concerns the offer of services to enable criminal offences.
- Specifically, it is intended to deal with Internet-based services that operate “in networks that are limited in terms of access and reachability”.
- This is the official German translation for Darknet marketplaces dealing in narcotics, child pornography or weapons. A list of these offences can be found in the draft under sentence .
- The operators of Darknet marketplaces could thus also be punished if they offer services abroad but make illegal crimes possible domestically.
- There is a risk of imprisonment for up to three years.
Criticism of the Darknet bill
The bill also states that the Darknet is not only home to criminals. The Federal Council, however, justifies its proposal with the argument that the current legal situation does not offer sufficient criminal sanctions against operators of Darknet marketplaces. One could prosecute these so far only over aiding and abetting, which is difficult to prove however usually. The decision over the draft lies now with the German Bundestag and not only with politicians the opinions go far apart. Prof. Dr. Matthias Bäcker, Professor of Public Law and Information Law at the Johannes Gutenberg University in Mainz, is heavily critical of the bill.
Like other critics, the expert criticises the preventive use of criminal law. What is to be understood by “facilitating and promoting criminal offences” is not clear, but rather that criminal liability is brought forward, because the provision of Internet services is punishable under the planned regulation regardless of whether an unlawful main offence exists at all. If peas are counted, the operation of a Tor relay or VPN service could be interpreted as “enabling”. Normal users who, for example, use the Tor browser in order not to be tracked by tracking services while surfing could feel criminalized. And, of course, the general question arises as to whether the new law is necessary at all, because trafficking in drugs, weapons and child pornography is prohibited either way, whether inside or outside Darknet.