Targeting dark forums
Malicious actors use dark forums to carry out technology-driven crimes such as computer hacking, identity theft, credit card fraud and intellectual property theft.
With the recent Pearl Harbor–like surprise attack on Israel and Hamas’ declaration broadcast over various social media platforms of “a day of Jihad” on its enemies on Oct. 13, 2023—including the United States—it is foreseeable that law enforcement agencies nationwide will coordinate their focus on so-called “dark forums” to track threats to the public and bad actors.
These virtual-based entities may facilitate widespread criminal endeavors and terrorist acts, including the laundering of criminal proceeds to fund and exchange weapons and critical intelligence.
This article will discuss these shadowy dark forums and the government response.
Use and scrutiny of social media platforms
Government officials have already called upon the social media giants such as Google, Meta, X (formerly Twitter), TikTok, Reddit and Rumble, to name a few, to rein in threatening speech on their platforms.
Law enforcement scrutiny of the platforms, in the wake of Hamas’ atrocities targeting unarmed civilians, are based upon the use of these globally available social media platforms by bad actors to spew hate material, disseminate threats, encourage violence and coordinate, facilitate and fund criminal conduct.
Government officials contend that these platforms have a responsibility to keep their users safe and prohibit the spread of violent rhetoric that puts vulnerable groups in danger.
The government’s scrutiny of social media platforms include specific inquiries of these platforms such as: (i) what actions, if any, they have taken to address the recent calls for violence against Jews and Muslims and their places of worship; (ii) how they are addressing the use of their platforms to plan, encourage, or disseminate acts of violence; (iii) what terms of service, community rules, or other policies are in place to prevent users from accessing the platform to spread violent rhetoric and overt acts; (iv) establish internal policies governing the protocols for removal of calls for violence; as well as (v) set rules and protocols for disciplining, suspending, and banning users for hate speech related to calls for violence.
Trafficking in hate
The dark forums using these platforms can foment hate, traffic in hate speech and coordinate overt acts of criminality thus allowing their bad actors a vehicle to freely discuss illegal activity under the shroud of the “marketplace of ideas” protected by the First Amendment. See, e.g., New York Times v. Sullivan, 376 U.S. 254, 270 (1964); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
Most speech is presumed protected by the First Amendment. The presumption is based in part on the precept that speech concerning public affairs is the essence of self- government. Garrison v Louisiana, 379 U.S. 64 (1964). Speech determined to be a “true threat” is not protected. The U.S. Supreme Court has stated that true threats are statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See, Virginia v. Black, 538 U.S. 343, 347-348 (2003); Watts v. United States, 394 U.S. 705 (1969); Counterman v. Colorado, 143 S. Ct. 2106, 2115 (2023).
The forums can protect and encourage the trafficking of various criminal endeavors including the sale of illicit drugs, conspiracies to conduct physical attacks on “soft targets” such as unprotected and unarmed individuals and corporations, and other conduct meant to facilitate and provide the bad actors and their criminal enterprises with financing for future attacks such as the sale of personal identifying information (“PII”), stolen property, bogus trademarked goods, vulnerabilities and phishing kits, child pornography and human trafficking, to name a few.
There is no doubt when a terrorist organization declares a day of action over social media, law enforcement interprets the words very carefully, searching for calls for violence, the activation of “sleeper cells,” or other threatening modes of operation. Such public pronouncements are routinely shrouded in love of country or defense of its people who are under oppressive rulers—but whatever the surface message, much more may be communicated to their operatives free to interpret and act on the pronouncement.
Dark forums and history
Dark forums are not new; in fact, various dark web sites have been identified by law enforcement investigations over the years for illegal transactions in, for example, illegal drugs, weapons, human trafficking and murder for hire. Those include Silk Road and AlphaBay. See e.g., Safex Foundation v. Safeth, 531 F. Supp. 3d 285, 295 (D.C., D.C. 2021).
The dark-forum type of organized criminal “training operation” is nothing new; just, perhaps, it’s growing presence in the virtual world. The brick-and-mortar world is full of analogues. The dustbins of history have all the reported investigations and prosecutions over the last hundred years, since at least the time of gangster Al Capone through the enactment of the Racketeering Influenced Corrupt Organizations Act (RICO) statute on Oct. 5, 1970, to present-day criminal conspiracies. See 18 U.S.C. §1961, et. seq.
Even before the internet became a fixture of routine life and a training ground, communication hub and illegal trafficking option for criminals, organized criminal elements boasted training bases, such as “the School of the Seven Bells,” where experienced criminals shared their trade secrets with members of the criminal world in an unknown location in South America.
Dark forums today
Similarly, dark forums serve as a platform that facilitates criminal activity worldwide. See Clemens v. ExecuPharm, 48 F.4th 146, 157 (3d Cir. 2022). Not surprisingly, criminals and other malicious actors use dark forums to carry out technology-driven crimes such as computer hacking, identity theft, credit card fraud and intellectual property theft. McMorris v. Carlos Lopez & Associates, 995 F.3d 295, 302, n.2 (2nd Cir. 2021); United States v. Ulbricht, 858 F.3d 71 (2nd Cir. 2017).
Dark forum moving targets
The targeting of dark forums has as its goal interdicting cyber-based criminals preventing them from recruiting new members, establishing safe havens to obtain weapons and tools to continue their criminal endeavors and disrupting their unlawful activities. The government targets members of these forums responsible for developing, distributing, facilitating, and supporting the most egregious and complex criminal schemes targeting unprotected victims, institutions and financial systems around the world. See, e.g., United States v. Ulbricht, 858 F.3d 71 (2nd Cir. 2017); United States v. Glowacki, 2023 U.S. App. LEXIS 871 (6th Cir. 2023).
The forums can be well organized and include hundreds of operatives. These operations protect the existence of their entity by having their administrators carefully vet prospective new members as the bosses are ever fearful of compromise of a member by law enforcement or an informant working for them. These vetting practices are similar to those seen in the past by the Mafia, Mexican and South American–based drug cartel organizations and the urban gangs that proliferate in our large cities. See, generally, People v. Burke, 72 N.Y.2d 833 (1988); United States v. Fatico, 579 F.2d 707 (2nd Cir. 1978).
Prospective members usually have to be “sponsored” or “vouched” by an existing member. Nevertheless, the prospective member is closely scrutinized and tested by loyal established active members to test his or her loyalty. Once in the forum, members—in addition to buying and selling criminal products and services—use the forum to exchange ideas, knowledge and advice on any number of criminal fraud schemes and other illegal activities. It is a breeding ground and training base for criminals around the globe.
Conclusion
Law enforcement nationwide is focusing on the online platforms that give dark forums a place to operate. The investigation of these online entities is no doubt time consuming and laborious and requires coordination with multiple levels of law enforcement locally, nationally and internationally. Infiltration into the online community is similarly time consuming, as is the effort required to obtain sufficient legally admissible evidence to apply for search warrants or electronic warrants required for critical evidence that can be used at trial or convince a defendant to waive his right to trial and plead guilty. See, 18 U.S.C. §§2510, 2703, 3121, et. seq.; C.P.L. Art. 690, 700 and 705.
Nevertheless, successful infiltrations by law enforcement may result in the dismantling of the dark forum and arrests of dozens of criminal members around the world and thereby prevent future criminal and terrorist acts. Many of these forums have the resources and ability to operate and impact victims globally so law enforcement’s techniques and methodologies must transcend national borders.
Law enforcement has significant weapons to combat these dark forums from RICO charges under 18 U.S.C. §1961, to that “darling of prosecutors” the Conspiracy statute, 18 U.S.C. §371, among others. See, e.g., United States v. Alston, 1990 U.S. Dist. LEXIS 19603 (DC AZ 1990) aff’d 974 F.2d 1206 (9th Cir. 1992). There is no doubt that law enforcement will use all the legal tools available to it to take down these forums before they can inflict any harm on the public.
Peter A. Crusco is principal of the Law Office of Peter A. Crusco P.C. He was formerly the Executive Assistant District Attorney, Chief of the Investigations Division, Queens County DA’s Office; a Special Federal Prosecutor, EDNY; a NYS Assistant Attorney General; and a Special Prosecutor for the Counties of Kings and Suffolk.