Tuesday, January 12, 2016

Prosecutions in Germany continue in 2016 after the Oct. 2013 Silkroad bust

Silkroad 1.0, the most famous "anonymous marketplace" for illicit goods on the Internet, made headlines before and after law enforcement brought down the site in 2013.

Politicians and law enforcement came out swinging in the face of what many called an unprecedentedly dangerous phenomenon. And the media licked up the twists and vagaries of the events surrounding this and other marketplaces.

The K-Landnews believes that a realistic statement would look more like this: The Darknet hype - 75% or more scam sites.

Mostly faded from view in 2016 is the fact that at least some countries continue to aggressively pursue not just dealers from the long defunct site but even more so small time buyers who either made a couple of purchases of a few grams of their favorite drug or let friends do it for them only to get scooped up years later.

We got our hands on a great document which exposes how swift the backlash in Germany really was.

Silkroad was taken over by the FBI on 2 October 2013. Within weeks, the Munich, Germany, state criminal police requested and received from the FBI all data from the site regarding German drug dealers.

A few more weeks, and the first major arrests were done. As the world learned, all this anonymity was over hyped too, and dealers and customers were often confused and made plenty of mistakes.

Some dealers kept records of transactions, customers, and other data.

The document in our possession - which we decided not to publish at this time** - details the story of one German dealer, his records and law enforcement making hay.

After the arrest, investigators combed through a treasure trove of data the gentleman had conveniently saved. Police made lists of "customers" and sent them to local German authorities as well as, for international customers, to police of those other countries.

In the first half of 2014, individuals on the list would receive an invite to local police to be questioned over detailed allegations, such as "on <date> you ordered x amount of this or that drug".

The dates of the alleged transactions for the cases and individuals (several distinct cases) in the document seen by the K-Landnews are all after the Silkroad bust, and the document only states that "a market" was used, listing several existing at the time, but does not give the name of a specific market for any of the transactions.

District attorneys would typically decline prosecution of small amounts, depending on the state (up 10 g of pot, 1 g of hard drugs). In early 2015, about a year after the bust, the dealer was sentenced to 2 years, to be served on probation, for a grant total of about 2 000 individual transactions involving over 5 000 g (5 kg) of various drugs, with an additional unsold stock of several kilos of pot and hundreds of grams of other drugs.

By any standard, that's a lenient sentence in Germany and next to nothing compared to, say, the U.S.

The story could have ended here, but didn't.

A year after the first round of prosecutions, a second one based on the same data kicked of around the middle of 2015. Individuals whose prosecution had been dropped in 2014 received the same summons: "on <date> you ordered x amount of this or that drug".

Under a different case number.

This time, the summons was accompanied by two witness statements, one from the dealer, one from the lead investigator. The action by local courts was swift: fines were set, the case was reported to the motor vehicle department. The latter typically has unexpected ramifications in Germany: you need to do drug tests and undergo a psych examination. The total cost can easily reach thousands of Euros, even if you are cleared.

What would seem to be a case of double jeopardy in many countries is actually totally legal in Germany.

Police apparently did not have to report to the DAs and courts that a previous investigation had been closed, and they avoided this by constructing a "new" case. For this, the convicted dealer was given witness status, certifying that he actually sent whatever drugs the records claimed he sent. The lead investigator added a statement of his own, certifying that the individuals in question had been "subject to an earlier investigation, according to my recollection". As strange as it sounds, the famed German record keeping seems to be full of holes in convenient circumstances.

DAs receive the information, pass it to a court, the court does not verify anything but sets a fine.

The issues in this particular case are somewhat troubling, though: The alleged times and dates taken from the same unmodified individual data set seized at the time of the dealer's arrest often do not match in the 2014 and the 2015 investigation, according to a lawyer familiar with the investigation.

The mystery document has a clue, saying records were "...reviewed and duplicates removed..."

The police report used for the 2015 sweep is dated mid 2015 at the top, but the footer gives away something else: a date that matches the time of the first investigation in 2014.

Without the original 2014 document, we cannot get any further interesting details on these cases.

But the overall picture seems clear, and should frighten anybody: All that's needed to be fined for drug possession in Germany is a written record with an individual's name and address.

The absence of any specific market used, absence of proof of order, absence of payment, absence of proof of sending, absence of proof of reception, or absence of any actual substances - they all seem to be irrelevant in the eyes of most German prosecutors and courts.

The document does not indicate the social or economic status of the accused individuals. But in Germany, as in other countries, you are likely spared any fines or stiffer penalties if you have the means and are influential.

As mentioned above, the amounts of drugs in the mystery document allegedly bought are small, much smaller than the 3 g of speed a German member of parliament admitted to not long ago, and he got away without even a fine.

If the unlucky alleged consumers listed in the document were given a penalty relative to the over 5 kg sold by the dealer plus the almost equally large amount confiscated from him, maths would come to something close to zero.

But maths and the law are worlds apart.

** German law prohibits publishing documents, though not allegations and questions, from an ongoing investigation, and we do not know whether the cases described are part of such. So, the decision was made out of an abundance of caution.

[Update 1/13/2016] Corrected typos, added remark re. record keeping.

[Update 1/14/2016] Style fixes.
 Added "absence of proof of order". The document nonchalantly explains that a large number of the listed transactions could not be tied to actual orders because the transactions were either small or would "originate outside of Silkroad."
This makes sense because only the Silkroad database fell into the hands of law enforcement. The two other markets mentioned in the document (Black Market Reloaded, and Sheep) were closed by the operators.

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