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FinTech on the Dark Web: the rise of cryptos

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Abstract

Financial technology (FinTech) based trading activities operate above and underground. Due to their nature, FinTech products can be used within the dedicated regulatory framework or into the deep layers of the Internet. This feature of FinTech alone could potentially undermine the existing financial services regulation (FSR), the aim of which is to ensure financial stability through investor protection measures and measures protecting the integrity of the financial market. To this end, much of the illegal activities on the Dark Web have an interconnected and cross-sectorial impact on the FSR’s aims—for example, the on-going problem with stealing of personal data has implications on investor protection, often via market manipulation channels. Such considerations make it relevant to analyse the ways FinTech used on the Dark Web could affect traditional and FinTech activities in the financial sector. How strong this impact could be would probably depend on how ubiquitous FinTech innovations are on the Deep or Dark Web. This article will argue that by definition their market presence is not only across the entire Internet, but also very high in volume. This is all the more the case because FinTechs brainchild, the cryptos, have become the go to currency for many activities outside the law.

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Notes

  1. For example see, EBA [3], ‘ESAs warn consumers of risks in buying virtual currencies’ (12 February 2018) https://eba.europa.eu/-/esas-warn-consumers-of-risks-in-buying-virtual-currencies accessed 03 January 2019; EBA [2], ‘EBA assesses risks and opportunities from Fintech and its impact on incumbents business models’ (03 July 2018) https://eba.europa.eu/-/eba-assesses-risks-and-opportunities-from-fintech-and-its-impact-on-incumbents-business-models accessed 03 January 2019.

  2. European Commission [5], Action Plan on FinTech (2018) https://ec.europa.eu/info/publications/180308-action-plan-fintech_en accessed 03rd January 2019.

  3. Ibid, 10.

  4. European Commission (n 2).

  5. Jim Marous [44], ‘The Future Of Banking: Fintech Or Techfin?’ (27 August 2018) Forbes, https://www.forbes.com/sites/jimmarous/2018/08/27/future-of-banking-fintech-or-techfin-technology/#231689b55f2d accessed 29th January 2019.

  6. Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU Text with EEA relevance OJ L 173, 12.6.2014, pp. 349–496 [15].

  7. Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 Text with EEA relevance OJ L 173, 12.6.2014, pp. 84–148 [19].

  8. Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories Text with EEA relevance OJ L 201, 27.7.2012, pp. 1–59 [20].

  9. Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (Text with EEA relevance) PE/72/2017/REV/1 OJ L 156, 19.6.2018, pp. 43–74 [10].

  10. Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (Text with EEA relevance) OJ L 337, 23.12.2015, pp. 35–127 [9].

  11. Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) OJ L 173, 12.6.2014, pp. 179–189 [13].

  12. For instance the BRRD, Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council Text with EEA relevance OJ L 173, 12.6.2014, pp. 190–348 [14]; or the Securitisation Directive, Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 OJ L 347, 28.12.2017, pp. 35–80 [21].

  13. As an example, consider the profile of N26’ SEO, Valentin Stalf, whose background, prior to N26 included working for an incubator and investor in online startups and later providing strategy consulting and investment banking services—see, N26 [45], ‘The N26 history’, (2019) https://n26.com/en-eu/about-n26 accessed 02 January 2019. Maximilian Tayenthal, who is N26 CFO has an even more impressive background in finance—check his profile on Bloomberg [23] (2019) https://www.bloomberg.com/research/stocks/private/person.asp?personId=413214430&privcapId=250727580&previousCapId=250727580&previousTitle=NUMBER26%20GmbH accessed 02 January 2019. Similarly, the CEO and CTO of Revolut, the UK based FinTech, come from respectively trading and computer science background—see, Revolut [48], ‘About Revolut’, (2019) https://www.revolut.com/en-US/about-revolut accessed 02 January 2019.

  14. Randy Bean [22], ‘How FinTech Initiatives Are Driving Financial Services Innovation’ (July 10, 2018) https://www.forbes.com/sites/ciocentral/2018/07/10/how-fintech-initiatives-are-driving-financial-services-innovation/#32e7036c54fa accessed 02 January 2019.

  15. For more information on IOUs see Investopedia [40], ‘IOU’ (29 January 2018) https://www.investopedia.com/terms/i/iou.asp accessed 28th January 2019.

  16. Coindesk [29], ‘SEC Official Says ‘Plain English’ Guidance On ICOs Is Coming’ (5 November 2018) https://www.coindesk.com/sec-official-says-plain-english-guidance-on-icos-is-coming accessed 29th January 2019. Plain English guidance produced by SEC is on its way and it is expected to affect the price of ICOs.

  17. Proposal for a Regulation of the European Parliament and of the Council on European Crowdfunding Service Providers (ECSP) for Business Brussels, 8.3.2018 COM(2018) 113 final [6]. See also, European Parliament, Draft Report on the proposal for a regulation of the European Parliament and of the Council on European Crowdfunding Service Providers (ECSP) for Business (COM(2018)0113–C8-0103/2018–2018/0048(COD)) Committee on Economic and Monetary Affairs 08 August 2018 [8].

  18. Under US law, security tokens could be offered to non-US investors, outside the US, if certain conditions are fulfilled. This is covered by Regulation S, which provides a number of exceptions utilized by issuers. In the EU, this matter would be covered by the EU Prospectus Directive, (Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (Text with EEA relevance) OJ L 345, 31.12.2003, pp. 64–89 [12]), which imposes a requirement for the securities issuer to produce a prospectus providing clear and comprehensive information on their product. Importantly, the issuance is subject to regulatory approval. However, in reality there are some notable exceptions as to who should comply with the Directive, which may be applicable to some of the smaller issuance.

  19. Coinbase [28], ‘About Coinbase’, (2019) https://www.coinbase.com/about accessed 28th January 2019.

  20. Wahed [53], ‘Revolutionizing Ethical Investing’ (2019) https://wahedinvest.com/intl/ accessed 28th January 2019.

  21. Not to be mistaken with virtual currencies. For the difference between digital and virtual currency, see for instance Andrew Wagner [52], ‘Digital vs. Virtual Currencies’ (2014) Bitcoin Magazine https://bitcoinmagazine.com/articles/digital-vs-virtual-currencies-1408735507/ accessed 03rd January 2019.

  22. Blockchain is a platform—a type of distributed ledger operated by a disparate network of computers; see Investopedia [41], ‘Cryptocurrency: (2018) https://www.investopedia.com/terms/c/cryptocurrency.asp accessed 27th January 2019.

  23. Ibid.

  24. For example, plans are in motion to create a cryptorubla in Russia, See Helen Partz [47], ‘Is CryptoRuble Back? Launch Set For Mid-2019, Says Russian Blockchain Association’ (2018) https://cointelegraph.com/news/is-cryptoruble-back-launch-set-for-mid-2019-says-russian-blockchain-association accessed 27th January 2019; Stephen O’Neal [46], ‘CryptoRuble: How Stable Could Russian National Stablecoin Be?’ (17 Nov 2018) https://cointelegraph.com/news/is-cryptoruble-back-launch-set-for-mid-2019-says-russian-blockchain-association accessed 27th January 2019. See the developments around the estcoin in Estonia: Ryan Browne [24], ‘Estonia says it won’t issue a national cryptocurrency and never planned to’ (4 June 2018) https://www.cnbc.com/2018/06/04/estonia-wont-issue-national-cryptocurrency-estcoin-never-planned-to.html accessed 27th January 2019.

  25. For example, political freedom.

  26. Note that by ‘cryptos” the author is referencing cryptos in general and not a specific crypto currency. The value and therefore benefit of different cryptos is tightly linked to their utility.

  27. Cryptovolatility [31], ‘Cryptovolatility’ (2019) http://www.cryptovolatility.net/ accessed 27th January 2019.

  28. Emphasis added.

  29. EU COM (n 2).

  30. Google [34], ‘Indexing pages to be included in search results’ (2019) https://support.google.com/customsearch/answer/4513925?hl=en accessed 03 January 2019. On whether or not Google is a platform, read Scott Cleland [27], ‘Why Google’s Not a ‘Platform” (2011) Forbes https://www.forbes.com/sites/scottcleland/2011/10/19/why-googles-not-a-platform/#6c016ef96bbe accessed 03 January 2019.

  31. Of course, it could be brought to the attention of the regulator prior to indexing.

  32. Tim Sparapani [49], ‘The Dark Web Is Still A Huge, Difficult Problem’ (2016) Forbes https://www.forbes.com/sites/timsparapani/2016/06/28/the-dark-web-is-still-a-huge-difficult-problem/#7f476b7765b1 accessed 03 January 2019.

  33. The following gives an idea of the size of content we are considering here: ‘[A]ccording to Cisco, …by 2019, global traffic is expected to hit 2 zettabytes per year. One zettabyte is the equivalent of 36,000 years of high-definition video, which, in turn, is the equivalent of streaming Netflix’s entire catalog 3,177 times; in just three minutes, the amount of data traveling over the internet in just three minutes is the digital equivalent of every motion picture ever made in the last 120 years.”—see Jerri Collins [30], ‘How Big Is the Web? How Many Websites Are There?’ (2018) Lifewire https://www.lifewire.com/how-big-is-the-web-4065573 accessed 03 January 2019. According to a site that statistically measures the activities on the surface web, as of Thursday, 03 January, 2019, there are at least 5.08 billion pages on the Indexed Web: See WorldWideWebSize [54], ‘The size of the World Wide Web (The Internet)’ (2019) https://www.worldwidewebsize.com/ accessed 03 January 2019. The amount of pages existing on the Deep Web should be approximately 9 times more, if we stick to the more optimistic prognosis. The last point to consider is that over the last 6 years, the web has nearly doubled in size each year. (Collins above) The very easy conclusion that could be made is that if we already have a problem by coexisting with the unknown and the unregulated, this problem will only get bigger in the future.

  34. To this end, the Deep Web is useful as it could be a place where to store confidential information, including data stored by Governments and Governmental Institutions. Universities, Clouds etc. all keep part of their data on the Deep Web, where it is more securely stored and could be accessed only with knowledge of the pathways (such as URL, password authentication or similar).

  35. Dash Magazine [33], ‘Immunity on the Dark Web as a Result of Blockchain Technology’ (2018) https://codeburst.io/immunity-on-the-dark-web-as-a-result-of-blockchain-technology-6693eb087bdd 28th January 2019.

  36. Ibid.

  37. Caleb Chen [26], ‘Operation ‘Onymous’ Also Shut Down Dark Net Markets Cloud 9 Hydra and Maybe More’, CryptoCoinsNews, (6 November 2014), https://www.ccn.com/operation-onymous-also-shut-down-deep-net-markets-cloud-9-hydra-and-more/ accessed 03 January 2019.

  38. Sparapani (n 31).

  39. Chen (n 36).

  40. And indeed, some measures have been taken. For example, the drug trade market places referred to above, as well as other markets involved with money laundering, were shut down as far back as 2014 during an operation led by the United States’ FBI and supported by 17 other countries.

    While Operation Onymous was hailed a success, it was hardly a win. For instance, the alleged one million of Bitcoins confiscated by the authorities forms just a small part of the turnover on the Dark Web. The main effect of the FBI raid was that users withdrew their bitcoins and directed them elsewhere. Notably, a site labeled Silk Road 3.0 appeared just a few hours after the dawn raid (and is still running as of 03 January 2019). Even more disturbingly, sites such as Agora, Evolution and Andromeda, which were far better developed than Silk Road 2.0 in terms of range of illegal activities (including contract killings) and size of customer group, remained untouched. Furthermore, while the above is already worrying, there is no saying how many sites are actually operating on the Dark Web undetected and how many of them are big enough to cause some substantial damage.

  41. David Hundeyin [37], ‘Dark Web Dealer ‘OxyMonster’ Forfeits $700,000 in Crypto with 20-Year Prison Term’ (22 October 2018) https://www.ccn.com/dark-web-dealer-oxymonster-forfeits-700000-in-crypto-with-20-year-prison-term/ accessed 29th January 2019. See also, Ada Hui [36], ‘US Government Seizes Lambo and Crypto Millions from Dead Dark Web Kingpin’ (17 September 2018) https://www.coindesk.com/us-court-seizes-lambo-and-crypto-millions-from-dead-dark-web-kingpin accessed 29th January 2019.

  42. Andy Greenberg [35], ‘Your Sloppy Bitcoin Drug Deals Will Haunt You for Years’ (26 January 2918) https://www.wired.com/story/bitcoin-drug-deals-silk-road-blockchain/ accessed 29th January 2019.

  43. Dash Magazine, ‘Immunity on the Dark Web as a Result of Blockchain Technology’ (2018) https://codeburst.io/immunity-on-the-dark-web-as-a-result-of-blockchain-technology-6693eb087bdd 28th January 2019.

  44. More accessible to petty criminals usually acting for themselves.

  45. Requiring a higher level of technical knowledge and a buyer.

  46. However, working with personal data is sensitive and subject to oversight from different legislative initiatives. In the EU, a progress in data privacy regulation has been made with the European Union (EU) recently introducing the General Data Protection Regulation (GDPR) and the EU Commission moving forward with a Proposal for an ePrivacy Regulation (European Commission [7], Proposal for a Regulation on Privacy and Electronic Communications (10 January 2017) https://ec.europa.eu/digital-single-market/en/news/proposal-regulation-privacy-and-electronic-communications accessed 3rd January 2019), expected to see development in 2019. These developments suggest that the flow of general data and its storage are currently subject to strict regulation and that the approach of the legislator is likely to become even stricter in the near future. Note that this framework would only apply to businesses operating in the regulated environment.

  47. Scot Carrey [25], ‘How UK fintech startups are preparing for open banking’ (16 August 2018) https://www.computerworlduk.com/galleries/data/how-uk-fintech-startups-are-preparing-for-open-banking-3670784/ accessed 02 January 2019. See also, Inside Privacy [39], ‘Overlap Between the GDPR and PSD2’ (16 March 2018) https://www.insideprivacy.com/financial-institutions/overlap-between-the-gdpr-and-psd2/ accessed 02 January 2019.

  48. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) (OJ L 119 4.5.2016, p. 1) [16].

  49. The Global Reasurer [50], ‘PSD2 and the era of the open banking application programming interface (API)” (2019) https://www.theglobaltreasurer.com/2017/09/18/psd2-and-the-era-of-the-open-banking-application-programming-interface-api/ accessed 25th January 2019.

  50. Ibid.

  51. The Paypers [51], ‘Behind the API: managing third party risk under PSD2’ (11th October 2018) https://www.thepaypers.com/thought-leader-insights/behind-the-api-managing-third-party-risk-under-psd2/775294 accessed 25th January 2019.

  52. EU Commission (n 2); See also, IBM [38], ‘Security trends in the financial services sector’, (April 2017) https://www-01.ibm.com/common/ssi/cgi-bin/ssialias?htmlfid=SEL03129USEN accessed 25th January 2019.

  53. Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse). See also, Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) OJ L 173, 12.6.2014, pp. 179–189 [11].

  54. Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC Text with EEA relevance OJ L 173, 12.6.2014, pp. 1–61 [17].

  55. ESMA [4], ‘Market abuse and accepted market practices’ https://www.esma.europa.eu/regulation/trading/market-abuse accessed 03 January 2019.

  56. Ibid.

  57. ESMA (n 44).

  58. Investopedia [42], https://www.investopedia.com/terms/i/insidertrading.asp accessed 17th January 2019.

  59. AFM [1], ‘Insider Dealing’ (2016) updated 2017, https://www.afm.nl/~/profmedia/files/wet-regelgeving/marktmisbruik/brochure-insider-dealing.pdf accessed 19th January 2019, 11.

  60. MAR, recital 23, See REGULATION (EU) No 596/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (Text with EEA relevance) OJ L 173/1 [18].

  61. Tabby Kinder [43], ‘Hedge funds turn to dark web to gain an edge’ (2017) Financial News, https://www.fnlondon.com/articles/hedge-funds-gain-an-edge-from-the-dark-web-20170802 accessed 03 January 2019.

  62. Ibid.

  63. ESMA (n 44).

  64. ESMA (n 44).

  65. EU COM (n 2), 7.

  66. DarkWebNews [32], ‘Deep Web Search Engine “Memex” Boost Up’ (2018) https://darkwebnews.com/deep-web/deep-web-search-engine-memex-boost/ accessed 02 January 2019.

References

Publications of the Regulator

  1. AFM: Insider Dealing (2016). https://www.afm.nl/~/profmedia/files/wet-regelgeving/marktmisbruik/brochure-insider-dealing.pdf. Updated 2017. Accessed 19th January 2019

  2. EBA: EBA assesses risks and opportunities from Fintech and its impact on incumbents business models (03 July 2018). https://eba.europa.eu/-/eba-assesses-risks-and-opportunities-from-fintech-and-its-impact-on-incumbents-business-models. Accessed 03 January 2019

  3. EBA: ESAs warn consumers of risks in buying virtual currencies (12 February 2018). https://eba.europa.eu/-/esas-warn-consumers-of-risks-in-buying-virtual-currencies. Accessed 03 January 2019

  4. ESMA: Market abuse and accepted market practices. https://www.esma.europa.eu/regulation/trading/market-abuse. Accessed 03 January 2019

  5. European Commission: Action plan on FinTech (2018). https://ec.europa.eu/info/publications/180308-action-plan-fintech_en. Accessed 03rd January 2019

  6. European Commission: Proposal for a Regulation of the European Parliament and of the Council on European Crowdfunding Service Providers (ECSP) for Business, Brussels, 8.3.2018 COM(2018) 113 final

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Legislation

  1. Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (Text with EEA relevance) OJ L 337, 23.12.2015, pp. 35–127

  2. Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (Text with EEA relevance) PE/72/2017/REV/1 OJ L 156, 19.6.2018, pp. 43–74

  3. Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse). See also, Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) OJ L 173, 12.6.2014, pp. 179–189

  4. Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (Text with EEA relevance) OJ L 345, 31.12.2003, pp. 64–89

  5. Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) OJ L 173, 12.6.2014, pp. 179–189

  6. Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council Text with EEA relevance OJ L 173, 12.6.2014, pp. 190–348

  7. Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU Text with EEA relevance OJ L 173, 12.6.2014, pp. 349–496

  8. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) (OJ L 119 4.5.2016, p. 1)

  9. Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC Text with EEA relevance OJ L 173, 12.6.2014, pp. 1–61

  10. Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (Text with EEA relevance) OJ L 173/1

  11. Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 Text with EEA relevance OJ L 173, 12.6.2014, pp. 84–148

  12. Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories Text with EEA relevance OJ L 201, 27.7.2012, pp. 1–59

  13. Securitisation Directive, Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 OJ L 347, 28.12.2017, pp. 35–80

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    Maria Todorof

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Todorof, M. FinTech on the Dark Web: the rise of cryptos. ERA Forum 20, 1–20 (2019). https://doi.org/10.1007/s12027-019-00556-y

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