German authorities are pushing new legislation that aims to criminalize the operation of a Tor node. Authorities want to punish Tor node operators with a fine or imprisonment.
Draft of a Criminal Law Amendment Act - Introduction of a Criminal Law Amendment
independent criminal liability for the operation of Internet-based trading platforms for illegal goods and Services
- Request by the States of North Rhine-Westphalia and Hesse -
Printed matter: 33/19
I. The content of the bill
The bill is intended to be supplemented by the Criminal Code a new offense of the provider of services in the Internet to facilitate criminal offenses. With imprisonment up to three years or a fine should be punished who is an internet-based Performance, their accessibility and accessibility through special technical Precautions, offers and their purpose or activity thereon is directed to commit or promote certain illegal acts. offender increasingly used the possibilities of anonymization, the Internet offers them. Through the encryption of user data and through a program-controlled random route selection via globally distributed servers at Route setup where the origin or destination of the data is not logged the determination of start and end points of a data transfer becomes clear difficult. In particular, by the so-called Tor network, this Anonymization serves, is also the access to the mentioned Darknet. The Access to the Darknet and the accessibility of the Darknet offers are through limited special programs. In the Darknet are, among others access restricted services, including offers of criminal relevance, like the narcotics trade, Weapons, malicious software, identity papers and criminal services. This crime phenomenon in the practice of law enforcement a weight and not just a few isolated cases. These offers pose a significant threat to public safety.
The bill aims to provide adequate criminal prosecution corresponding Internet-based offers that enable or promote offenses, whose commission constitutes special risks to public safety, be enabled. In cases of commercial offering of corresponding internet-based It’s about acts, through the offenders not only occasionally and without selfish financial interest create targeted structures of criminal infrastructure. The commercial acting against the basic facts, due to the long-term
To commit a non-temporary source of income, a significantly increased content of injustice and should therefore with a higher punishment be reinforced. By a supplement of § 100a paragraph 2 Point 1 (d) of the Code of Criminal Procedure (StPO) is intended to cover commercial acts can also be considered a serious offense within the meaning of § 100a StPO. This should under certain conditions, even without knowledge the person concerned, their telecommunications and allowed. Because other investigative methods are not used to elucidate fact structures it is an effective pursuit of using internet based communication of past deeds regularly required, the communication channels to understand the parties involved.
II. Recommendations of the committees
The Leading Legal Committee and the Committee on Internal Affairs the Federal Council, the bill pursuant to Article 77 paragraph 1 of the Basic Law in accordance with changes in German To bring in the Bundestag.
In § 126a StGB-E, the concept of “offering” by the proven more comprehensive formulation of “making accessible” to be replaced, as well as in practice to avoid demarcation difficulties, the “facilitating of offenses “be included as another alternative action. In particular should be the limitation of the applicability of a crime catalog deleted as there is a risk that it would remain incomplete and the making available of any internet-based offer, which is based on the commission criminal offenses. Also, the restriction, according to which the operation of criminal cyber structures is only punishable should be when access to these services precautions “is not appropriate and should therefore be deleted become. Because perpetrators through the operation of the platform low-threshold access on infrastructure for the ascent Various other offenders and created a danger to public safety and order, should the penalties be imprisonment or a fine. It is also the case of the band to take a criminal offense and to clarify that in principle legal internet portals would not be covered by the criminal code.
The server location of a not insignificant number of Internet portals, about the unlawful acts are allowed in the country, would be abroad. An amendment of § 5 StGB should therefore ensure that also acts from abroad, which has a special domestic relevance that they are based on enabling or promoting or Relief from illegal acts in the domestic refer.
To identify suspects who have the appropriate platforms to handle their criminal business, by supplementing the Criminal Procedure Code clarifies that there are law enforcement agencies is expressly made possible by postal service providers also about not to consign shipments already delivered as well as already delivered.
The Committee on Internal Affairs also recommends for those Cases of the offense in which the unlawful act is a “Serious” or “particularly serious” offense acts, the investigative measures according to §§ 100a, 100b and 100g StPO. The committee recommendations in detail are from printed matter 33/1/19 seen.
The Full Story (What it Means)
(Translated from Zeit.de)
Three years of investigation, four convictions, an exchange for child pornography less: Last week ended the trial of the platform Elysium with high prison sentences for the defendants. The from a workshop in the Hessian town of Bad Camberg powered platform was with more than 80,000 members one of the world’s most popular points of contact for photos of sexual violence against children in the darknet - a part of the Internet, which can be visited only with special software like the Tor Browser ,
Elysium is finished, that’s a success for the police. But this is only the beginning for the German security politicians. They want to ensure that operators of platforms selling and exchanging illegal content such as child pornography, drugs and weapons are punished more severely in the future. This Friday, therefore , the Federal Council is discussing an amendment to the Criminal Code. Activists and lawyers warn against putting the Darknet under a general suspicion and thereby jeopardizing a secure communication path.
The bill, which has been initiated by the North Rhine-Westphalian Minister of Justice Peter Biesenbach (CDU), is to introduce a new criminal record . With up to three years imprisonment should be punished, “who offers an internet-based service whose access and accessibility is limited by special technical precautions, and whose purpose or activity is directed to commit or promote certain illegal acts”. Anyone who operates a commercial platform should even face imprisonment of up to ten years.
The “alleviation of crime” in the Darknet should be punishable
This is what politicians are looking for above all on the administrators of Darknet platforms, where illegal content is traded. Due to the technical characteristics of the Tor network, in which the anonymous users can not be identified by individual IP addresses, the operators are difficult to locate anyway. And if they do, then they are reluctant to have even taken part in the trade: they had merely provided the infrastructure, but did not know that in their forum weapons or child pornography were sold, it says.
The change in the law would make it easier to convict the operators at least for committing an offense. In particularly serious suspicions, investigators should also be able to monitor telephone conversations, e-mails or the Internet traffic of suspects - if a judge or a judge agrees. This is necessary for an “effective prosecution of acts committed via Internet-based communication”, it says in the application for the amendment.
The suggestion from NRW may be sharp, but some are not keen enough. This is the result of the amendments introduced by the Federal Council’s Leading Internal and Legal Committee. Its members call for increasing the maximum prison sentence from three to five years. It should not only be punished, who Darknet services “offers” with illegal content, but who “makes it accessible”. At the same time, the “facilitation of criminal offenses” should be listed as an additional fact.
Warning about malicious interpretation of the paragraphs
What sounds like peacock counting could have serious consequences in practice. Because what exactly does “lightening” actually mean in this case?
To answer the question, one must first explain the Tor network. It is like an onion of several layers, hence the name: The Onion Router . If you log in, you will end up in the outermost layer. Gradually, the additional encrypted data traffic is routed through additional layers and so-called nodes ( relays ) - thus concealing its exact origin. These nodes form the backbone of the Tor network, and the servers are made available worldwide by organizations, universities, clubs or volunteers.
If one would interpret the planned change of law “maliciously”, could already make all humans punishable, who operate a Tor-knot, says the Mainz law professor Matthias Bäcker in the discussion with the south German newspaper . Because that would make it easier for them to access illegal content. Frank Rieger, spokesman for the Chaos Computer Club, told netzpolitik.org : “The bill contains mainly rubber tariffs with the clear goal of criminalizing operators and users of anonymization services.” The facts are deliberately blurred. "
An “existential risk” for Tor node operators
According to Matthias Bäcker and the Berlin judge Ulf Buermeyer, there are no reasons for tightening the law. There are already sufficient criminal standards for the trade in drugs, weapons or child pornography and these are of course also for offers in the Darknet. That the prosecution works, as the recent case of Elysium has shown. “The bill involves a huge risk of criminalizing completely unproblematic behavior, creating huge risks for people who run Internet platforms,” said Buermeyer, who is also the chairman of the Society for Freedom Rights, Deutschlandfunk .
The same applies to Jens Kubieziel. He is a board member of the association Onelfreunde , which works for confidential communication and the Tor network. “I’ve talked to several lawyers and almost everyone thinks that the change in the law could affect relays,” he says in an interview with ZEIT ONLINE.
Kubieziel advises people who are thinking about setting up a Tor knot. Even now, especially the German users are uncertain about the legal situation. He always tells them that one can not exclude, be targeted by law enforcement. He speaks from personal experience; Last year, his house was searched, hard drives and telephones confiscated. The heavily criticized action had nothing to do with illegal content, but with a threadbare connection of Zwiebelfreunde to an e-mail provider. That’s why he did not shut down his Tor node, says Kubieziel.
Should the proposed bill come through, this could change. “In the worst case, we’re talking about several years in prison, because it’s about an existential risk,” says Kubieziel. Since you have to think carefully about whether you want to take this risk as a node operator. Even if, as he points out, those illegal contents that are referred to in the public as darknet, make up only a fraction of the entire Tor network .
Deterrence maneuver for Tor node operators
Kubiziel sees the attack above all a deterrent, promoted by technical incomprehension, as he has seen in recent years again and again with representatives of the police and politics. In fact, there are regular demands to do something about the Darknet. At the latest when it became known in 2016 that the assassin of Munich acquired his murder weapon in the Darknet, the rhetoric also intensified. At that time theHessian Minister of Justice Eva Kühne-Hörmann spoke of “islands of lawlessness”.
A few weeks ago Günter Krings, Parliamentary State Secretary in the Federal Ministry of the Interior, even demanded a complete ban on darknets in Germany at the European Police Congress: “I understand why the Darknet can have a benefit in autocratic systems,” Krings said , “but in a free, In my view, there is no legitimate benefit to open democracy. "
Apart from the fact that the Darknet or the Tor network can not be simply forbidden or switched off, because it runs just over many servers world-wide, this statement is far from reality. While there are illegal platforms in the Darknet, as well as in the open internet, the Tor network is also used by whistleblowers, dissidents or simply people who want to communicate securely. One of the most popular sites in the Tor network is about the login page of Facebook .
To put all Tor users under general suspicion and to assume that they have something to hide, is from the point of view of activists like Jens Kubieziel the wrong way. Therefore, he has a clear opinion on the planned tightening of the law: “This is an attack on the freedom of communication.”