General information about the darknet
Although the darknet is a widely networked technical construct that often makes tracing extremely difficult, it is neither a legal vacuum nor an impenetrable fog in which state investigations are doomed to fail. Rather, criminal procedure law has developed considerably in recent years. National investigative authorities are increasingly resorting to digital surveillance methods, international police cooperation is operating with remarkable efficiency, and courts are increasingly dealing with issues of evidence evaluation from highly complex IT contexts.
Typical crimes on the darknet
Criminal law does not relate to the use of the darknet as such, but to the offences committed via this medium. Accordingly, merely “surfing” the darknet or using access to this network is not punishable in itself. Rather, criminal liability is linked to the content and activities accessed on the darknet and the criminal acts thereby committed. The main legal basis and areas of application in this context are the Austrian Criminal Code (StGB), the Austrian Narcotic Substances Act (SMG), the Austrian Weapons Act (WaffG) and supplementary special legal provisions.
The purchase (Sec 27 SMG) or trade in narcotics (Sec 28a SMG) via digital platforms is particularly common. Unlike in traditional street dealing, communication takes place via encrypted messaging services or hidden forums. Cryptocurrencies are often used as a payment method and delivery is by post. Nevertheless, even those who order illegal drugs anonymously on the internet are liable to prosecution – regardless of whether the shipment actually arrives. Simply placing an order using a pseudonym – while providing a delivery address – can constitute an attempt to illegally purchase narcotics (Sec 27 SMG) and be punishable by criminal law.
In addition to violations of the Narcotics Act, cybercrime naturally plays a major role on the darknet. Acts such as the sale of malware, stolen credit card data, fake identities, counterfeit money or other activities on the darknet may constitute criminal offences such as fraud (Sec 146 StGB), damage to electronic data (Sec 126a StGB), unlawful use of a computer system (Sec 118a StGB), disruption of the operation of a computer system (Sec 126b StGB), counterfeiting legal document (Sec 223 StGB) or the counterfeiting or acceptance, transfer or possession of counterfeit non-cash means of payment (Sec 241a, 241b StGB). These offences are not only subject to substantial penalties, but are also often the starting point for further investigations, for example into criminal association and criminal organization (Sec 278 and 278a StGB).
Another relevant area of crime on the darknet concerns criminal offences against sexual integrity and self-determination, such as the criminal offence of procuring engagement in prostitution and pornographic performances by a minor (Sec 215a StGB).
The apparent anonymity of the darknet in particular provides fertile ground for the offences mentioned above. Perpetrators often operate across borders, which makes criminal prosecution even more difficult and requires close international cooperation.
Investigative tools in the digital space
Prosecution in the darknet is no longer based exclusively on traditional measures such as house searches, telecommunications surveillance or observation. In recent years, there has been increasing concern about the seizure of data carriers and data, and the relevant provisions have also been amended in the Austrian Code of Criminal Procedure (Sec 115f – 115l StPO). The evaluation of seized data and data carriers enables the investigating authorities to examine significantly more extensive information for its criminal relevance than is possible within the framework of traditional analogue investigative measures.
In practice, this regularly leads to so-called chance discoveries (Zufallsfunde): these are pieces of evidence that are discovered by chance in the course of a lawful investigative measure but point to a crime other than the one originally investigated.
Another development is the international networking of investigative authorities. Various operations impressively demonstrate how platforms on the darknet can be shut down simultaneously worldwide, data secured and perpetrators identified. This is based on international mutual legal assistance agreements, joint investigation centres and standardised exchange formats such as the European Investigation Order (EIO). From the perspective of criminal defence, the most relevant question here is whether the data collected abroad can also be used admissibly under Austrian procedural rules.
Criminal defence in cases related to the darknet
Criminal defence in the context of darknet investigations means above all: early action, precise knowledge of the case files and technical understanding. A lawyer therefore already access the files during the preliminary investigation and carries out an initial assessment of the evidence.
A central aspect in almost all proceedings is the question of perpetration: who actually ordered, sent, communicated or paid? In a digital environment with VPN services, public networks or shared devices, this question cannot always be answered clearly. The mere possession of a laptop or the presence of software such as “Tor” or “Signal” is not sufficient for a criminal conviction. Rather, law enforcement agencies are obliged to comprehensively assess all circumstances speaking for and against the accused. An experienced criminal defence lawyer therefore ensures that the rights of the accused are protected and that criminal proceedings are conducted fairly.
