German States Approve Criminal Law Targeting Dark Web Infrastructure

Germany’s federal states have voted in favour of a measure to extend criminal sanctions against those providing infrastructure to so-called “dark web” sites used for illegal purposes, such as selling firearms, drugs or illegal content.

The measure, which critics have called overly broad, is the latest sign of a crackdown in Europe and elsewhere on the internet’s perceived harmful social and economic effects.

In the UK, for instance, two separate Parliamentary committees have in recent weeks recommended a new regulatory framework for social media companies, in part due to the way they have been abused to spread illegal content or misinformation.

Germany’s measure is part of a broader crackdown on “dark web” sites that are used to sell contraband, including weapons such as those used in the 2016 shootings in Munich, which were purchased online.

Infrastructure crackdown

Another recent case involved the Elysium child exploitation platform, whose operators received lengthy sentences earlier this month. The operator of the platform that sold the weapons used in Munich was sentenced in December.

While some argue infrastructure providers are covered by existing laws as abettors of crimes, other authorities say tougher laws are needed.

The proposal approved on Friday was put forward by the states of North Rhine-Westphalia and Hesse, and specifically cover darknet services to which “access and availability is limited by special technical measures”.

The proposed law aims to extend liability to infrastructure providers who may have nothing to do with the use to which that infrastructure is put.

It would impose jail terms of up to three years in the case of plaforms used to distribute drugs, weapons or child-abuse material.

Bavaria called for amendments that would have broadened the rules to cover all websites, and not just the dark web, but those amendments failed in the Bundesrat, the Federal Council that represents Germany’s federal states.

Following Friday’s successful vote the measure is to pass to the Bundestag, the Federal Parliament, within the next six weeks, and if approved there it would pass into German federal law.

Human rights criticism

Critics say such measures are overly broad, saying it would apply to companies such as The New York Times or Facebook that offer their services via the Tor anonymisation network.

Networks such as Tor can be used by the likes of journalists and whistleblowers, or to bypass censorship, as well as by illegal marketplaces, critics point out.

Criminal lawyer David Schietinger told Der Spiegel that the measure would restrict human rights by effectively making it too dangerous for anyone to operate dark web services, even those intended for legitimate uses.

He argued the provision’s wording means it could apply to conventional platforms that use  measures such as password protection.

“Indirectly, the new measure could have the effect of severely restricting or banning the dark web,” Schietinger said. “That’s not the point.”