The federal government wants to regulate darknet trading

Imagine that you are going shopping on the Internet(Darknet). You go to a page, visit your favorite shop and put the goods in the shopping cart. However, this is not about clothes on Otto or a new power bank for your smartphone on Ebay. Instead, you buy weapons or drugs.

Darknet vs. Clearweb: Online shopping in two worlds

This is made possible by darknet trading. The darknet is an invisible part of the Internet that is insignificant to a large part of the population. Access is only possible via the Tor network and, for example, the Tor browser of the same name.

This access ensures that the users of the darkweb move undetected. The resulting traffic is encrypted and redirected across multiple servers, making it difficult to track or very difficult to track.

The opposite is the so-called Visible or Clear Net. This includes all "normal" Internet pages that you open on your smartphone or via Google Chrome, Mozilla Firefox or Apple's Safari browser on your desktop in everyday life.

As is so often the case with darknet in general and darknet trading in particular, the dark and unrecognized part of the Internet is much larger than the visible area that is in our focus.

Federal Ministry of Justice plans new regulation for darknet trading in Germany

In principle, darknet trading works like classic online shopping. Platform operators charge the sellers commissions or fees. Nevertheless, the penalties against the operators are usually relatively low.

The Federal Ministry of Justice in Germany now wants to change this. According to a new draft law, which is available to Der Spiegel, among other things, the Criminal Code is to be supplemented by Clause 127 "Criminality of the operation of criminal trading platforms on the Internet".


What does the new draft law for darknet trading specifically provide for?

The plans of Federal Justice Minister Christine Lambrecht reveal some significant innovations.

1. Higher penalties

Overall, the penalty for operating – and thus promoting the illegal trade in the darknet – is to be increased. It could face up to five years in prison in the future. If a "commerciality" is recognizable, the sentence increases to ten years.

2. Focus on serious crimes

The focus is on all those platforms on which or with the help of which serious crimes are committed. In concrete terms, this means the trafficking of drugs, weapons, counterfeit money, recordings of child abuse and hacking.

In doing so, the Ministry of Justice is also responding to the justified criticism from 2019. The old draft of the law would have ensured that journalists and whistleblowers could no longer use the protection of the darknet for their disclosures.

This is no longer the case due to the focus on criminal aspects.

3. Operators are held liable

The third and final point concerns the operators of the relevant platforms. They have bailed themselves out in court proceedings by saying that they were unaware of the activities on their own platform.

Accordingly, the burden of proof was high for investigators, who had to prove to the operators that they supported the darknet trade in drugs and other illegal goods.

This should be easier to achieve in the future. For example, paragraph 127 provides that operators can be monitored more easily by means of telecommunications surveillance. Targeted online surveillance and digital searches will also be facilitated.

Less shadow and protection for darknet trading

The planned measures of the Ministry of Justice are sensible steps to better control and regulate darknet trading. The higher penalties and better monitoring possibilities make the operation of the platforms less attractive.

But anyone who thinks that the darknet trading is over is mistaken. It is only a first step in the right direction.

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