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Emerging and Future Technology Trends in the Links between Cybercrime, Trafficking in Persons

and Smuggling of Migrants1 Felicity Gerry QC

Professor of Legal Practice, School of Business and Law, Deakin University,

Melbourne, Australia. Queen’s Counsel at Carmelite Chambers,

London and Crockett Chambers, Melbourne. PhD Candidate, Charles Darwin University,

Darwin, Australia. http://orchid.org/0000-0003-0431-9492

[email protected]

Peter Shaw Senior Lecturer, School of Fundamental

Sciences, Massey University, Manawatu, New Zealand.

A.Prof Hebut University of Technology, Tianjin, China.

Honouree Fellow of Menzies School of Child Health Australia

https://orcid.org/0000-0002-3187-8938 [email protected]

Abstract—An analysis of the links between human trafficking, smuggling of migrants and cybercrime, we suggest, exposes the overlap between legal principle and technological methodology This paper focuses on the role of emerging technological trends can have in the paradigm that may involve the protection of those who commit crime. We suggest that these issues should be considered at the development stage of technology and the proposal stage of an investigation, particularly where data is both harnessed and collected to tackle organised crime. The tension that trafficking and smuggling creates in the context of cybercrime is a challenge to rules-based order and rights-based policy because it requires a focus on protection rather than prosecution of those hitherto considered to be perpetrators. This in turn requires a greater interaction between the disciplines of law and technology.

Keywords—cybercrime, emerging technological trends, human trafficking, migrant smuggling, organised crime, victim protection, data and privacy rights.

I. INTRODUCTION States have committed to protection of victims and prosecution of perpetrators. In the context of human trafficking and migrant smuggling the two may overlap. States use technology to investigate perpetrators but have also accepted some internet freedom and committed to individual

1 Developed from a recent consultancy by Felicity Gerry QC for UNODC T4 program. 2 Trafficking in persons is a combination of three elements: act, means and purpose. It is defined in article 3 of the Protocol to the UN Convention on Organised Crime (UNTOC) against Trafficking in Persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include at a minimum the exploitation of prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of human organs”. Importantly, where the victim is a child, the means element is not required. 3 Smuggling of migrants is defined by article 3 of the Protocol to UNTOC against the Smuggling of Migrants as “the procurement, to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”. 4Cybercrime is a term used to describe crimes committed through the use of information and communication technology. The UNODC Global Program on Cybercrime describes the complex nature of cybercrime, as “one that takes place in the borderless realm of cyberspace, is compounded by the increasing involvement of organized crime groups. Perpetrators of cybercrime, and their victims, are often located in different regions, and its effects ripple through societies around the world”. While there is no single, universal definition of cybercrime (Maras, 2016), the role of information and communication technology in cybercrime is included in most definitions. Cybercrimes are distinguished based on whether information and communication technology is the target of an illicit act (cyber-dependent) or the means used to commit an illicit act (cyber-enabled) (Europol, 2018). Cyber-dependent offences include crimes committed against information and communication technology (for example, unauthorized access to information and communication technology, and the creation, dissemination and deployment of malware). Cyber-enabled offences are those which can occur “offline” but can also be facilitated by information and communication

data and privacy rights. Shouldering responsibility for both protection and investigation is increasingly complex where crime is committed across borders and / or facilitated by technology. This can present an even greater challenge where victims are exploited to commit or facilitate crime. Unlike trafficking in persons, which may be transnational or may occur in one State, smuggling requires the crossing of national borders. By definition, migrant smugglers act for the purpose of obtaining a financial or material benefit, while traffickers act for the purpose of exploitation, although there is generally a profit -based outcome. The differences and similarities between trafficking and smuggling is outside the scope of this paper. We focus on the role of emerging technological trends in the paradigm that may involve the protection of exploited criminal suspects. An analysis of the links between human trafficking, smuggling of migrants and cybercrime, we suggest, exposes the overlap between legal principle and technological methodology at every level of organised crime, global order and human rights recognition.

Trafficking in persons2 and smuggling of migrants3 offer lucrative business opportunities for organized criminal groups. With the development and advancement of modern technologies and the ever-expanding role of the Internet, law enforcement agencies, particularly those specializing in cybercrime4, need to maintain an up-to-date understanding of

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how the Internet may be used to commit crimes trafficking and smuggling persons and how organized criminal groups use increasingly sophisticated technologies to evade detection, particularly through use of the dark web and cryptocurrencies. Tackling the links between trafficking in persons, smuggling of migrants and cybercrime requires a commitment to the development and adaptation of modern technologies to counteract, detect, investigate and prosecute cyber-based offending. At the same time, State authorities must be mindful that they avoid the practices that violate the rights of migrants and trafficking victims and ensure effective systems are in place for both investigation and protection.

Trafficking in persons, smuggling of migrants and cybercrime can be more than individual crimes. They are also types of organized crime which can be facilitated/enabled by technology. Two of the three Protocols that supplement UNTOC5 are dedicated to trafficking in persons and smuggling of migrants, thus explicitly connecting these criminal offences to the broader organized crime phenomenon. Cybercrime is not explicitly mentioned in UNTOC but UNTOC applies to all serious crimes, defined as those offences punishable by a maximum penalty of incarceration of at least four years which captures cybercrime offences and some data regulation.

Unfortunately, the empirical research on the use of cyber- technology to commit smuggling and trafficking crimes is limited, as is often the case with criminal activities in general. In part, this is because cybercrime activity is by its nature difficult to detect and monitor. The use of the dark web, anonymous online profiles and disposable devices facilitates the concealment of criminal transactions and networks (Stalans and Finn, 2016). Also, attempts to measure cybercrime require substantial processing and sophisticated information and communication technology resources which are only available in some countries, where cybercrime law enforcement agencies are better equipped and legal frameworks give them the necessary legal authority.

This paper gives an overview of the current links in these topics and considers some potential emerging technological trends.

II. THE USE OF TECHNOLOGY TO FACILITATE TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS

Technologies do not only influence and change trafficking in persons and smuggling of migrants, but also various other forms of organized crime, such as trafficking in drugs or falsified medical products, among others. Increasingly, these activities happen in web markets (often in the dark web) rather than physical ones. By the same token, technologies and globalization have also been accompanied by the establishment of new organized crime structures, which do not require physical contact between supplier and customer, nor between members of criminal organizations. In summary, despite the differences that are considered below, cybercrime, trafficking in persons and smuggling of migrants have a fundamental commonality: they represent lucrative activities for organized criminal groups that stand ready to profit from them, notwithstanding the effects on victims of trafficking or on migrants who pay and risk their lives to escape violence

technology, such as online fraud, money-laundering, child exploitation, smuggling, trafficking in persons and other forms of trafficking.

and conflict. Technology increases the ease with which traffickers can locate, recruit, coerce and control their victims. Technology and the Internet - both cybercrime tools - are harnessed by the sophisticated end of the trafficker spectrum (Latonero, Wex and Dank, 2015; Latonero, 2012; Latonero, 2011). They can use these tools at each stage of the process, from the identification and recruitment of potential victims, through the process of coercion and control, to advertising and selling goods and services produced from their exploitation and finally to the laundering of profits. The use of technology can apply to all types of trafficking. The proliferation of information goes beyond merely communication among individual criminal groups. It facilitates illicit business and abusive opportunities. Here we consider recruitment, control, exploitation and profits:

A. Recruitment The Internet provides traffickers with access to a greater

number of potential victims through phones, emails, instant messaging, websites and phone applications (or apps). At the recruitment stage, traffickers are far more likely to use ‘clearnet’ websites to establish initial contact with victims. Using ‘clearnet’ websites (the surface web or visible websites that are indexed by search engines, like Google or Bing, allows traffickers to engage with a wider pool of Internet users, who are less likely to have a sophisticated understanding of technology. These websites, which can facilitate text and video chat, image exchange, dating and other interpersonal activities, provide traffickers with unprecedented access to potential victims. In addition, these forums provide the trafficker with information that can be used to identify victims’ vulnerabilities that can be leveraged to gain victims’ trust and confidence (for example, online grooming) (Latonero, 2012). On social networking websites and applications traffickers can research their victim and readily monitor their likes and dislikes. This means traffickers are able to tailor their approach to each victim, improving the effectiveness of their manipulations. In the context of labour trafficking, victims can be recruited through offers of work, usually through sham employment websites, online advertisements or recruitment agencies, and through social networking sites. Smartphones can facilitate recruitment within a range of communities particularly where the spread of information and communication technology is not accompanied by appropriate education about the associated risks.

Depending on users’ knowledge and use of privacy and security settings, and their digital footprint online (i.e. the scope of data about them available on the Internet, apps, social media and other online platforms which can provide traffickers with access to a range of useful information that could be used to target and groom victims, including location data, identity details and information about lifestyle, routines and habits, images and contacts.

In more developed countries, the ubiquity of smartphones among the population of children and young adults has resulted in apps playing an increasingly significant role in the exploitation of young victims. Apps often have GPS tracking capability, allowing traffickers to track the physical location of potential targets, and teen-centric social apps encourage

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imprudent interaction and disclosure of private information, often without any verification of the identity of the other party to the communication. The recruitment of victims can also be facilitated through online gaming platforms. Advanced game consoles provide the same functionality as desktop computers and are increasingly being used in commission of crimes (Dorn and Craiger, 2010). The high concentration of young people on gaming websites means they are particularly vulnerable to exploitation in this way.

B. Control Control can take several forms, among them coercing,

physically luring and transporting the victims away from their home, controlling provision of services, finances, and using threats. Technology allows traffickers to avoid physical and face-to-face contact with victims, which makes investigation of trafficking in persons even more difficult. Nevertheless, “virtual control” of victims is a common tool.

Control may include monitoring victims through manual examination of phone records or accessing phone applications through cloud-based applications or by deploying spyware. Even after a victim is no longer under the control of the trafficker (for example, they managed to escape), they can be tracked using location tracking applications on their mobile phones. Traffickers can also send threatening communications to victims who manage to escape, in an attempt to maintain or regain control.

Fraud, threats and deception may be used by traffickers who obtain compromising information about the victim (such as images or videos) as a means to gain control. For example, by promising modelling work and asking for nude photographs from the models, followed by making threats. This does not require face-to-face contact between traffickers and the victims; everything can be achieved in the virtual space.

Another development that has attracted less academic attention is that of hijacking the social media of victims and adding content with sexually graphic content to damage the victim’s reputation and credibility as a complainant which can in turn be a basis for coercion and may result in the account being closed by the service provider, isolation and loss of digital identity and a loss of contact with family and the community.

C. Exploitation Human beings are considered a commodity offline and

online (Maras, 2016; Maras, 2018). For profit, traffickers advertise human beings and services they can provide, seeking clients to purchase these services. These range from fraudulent financial services, employment opportunities or sex work. Traffickers advertise on clearnet (the visible web) and the deep web.

The deep or “dark” web is part of the World Wide Web that is not discoverable by open search engines (see also Cybercrime Module 5 Module on Cybercrime Investigations). Content is often password protected and encrypted. It has been used for illicit activities and hampers law enforcement investigations into human trafficking by making it more difficult for investigators to identify the traffickers. As encryption is encouraged in legitimate business (such as legal services or health records) and that different jurisdictions allow for differing levels of State access and surveillance,

investigations can be increasingly complex: See, for example, Europol online sting operations.

However, human beings are primarily ‘sold’ on easily accessible websites because traffickers want to ensure that their advertisements are accessible to the greatest number of clients, many of whom may not be technologically proficient (Maras, 2018). In the United States, for example, websites such as Craigslist, Reddit, adultsearch.com, meet4fun.com, and backpage.com have all been used by traffickers to advertise victims. On these and other advertisement platforms, escort and dating websites, traffickers advertise their victims’ services under the guise of legitimate work (e.g. massage service) so that they are almost indistinguishable from the legitimate advertisements they appear alongside. The advertisements on these sites hide the fact that human beings are being ‘sold’ – however, certain code words used (“fresh”), emojis (such as a cherry and cherry blossom to identify the victim as a virgin), and other phrases within descriptions of advertisements indicate that sex is for sale (e.g., “girlfriend experience”) or a minor is being advertised (e.g., “I have a younger friend”) (Maras, 2018).

An investigation by the United States Senate (2017) revealed that Backpage, an online classified advertisement site, knowingly facilitated trafficking in persons by editing advertisements that openly advertised human beings for sexual services and posting them online instead of denying them access to the platform. Nevertheless, attempts to hold Backpage criminally liable in the United States for these advertisements failed (Maras, 2017) led to the passage of the Allow States and Victims to Fight Online Sex Trafficking Act in 2018, which places responsibility on platform providers for third party content posted where it infringes ‘decency’ legislation. After the passage of the Act, Backpage.com was shut down and the CEO and his co-conspirators entered guilty pleas to human trafficking and money-laundering, among other charges (Jackman, 2018).

Child exploitation can also occur through the use of live- streaming child sexual abuse. In 2018, the United Kingdom’s Internet Watch Foundation conducted a three-month long study of live-streamed distribution, which tracked images across 78 different domains. These included banner sites, blogs, forums, social media networks and cyberlockers. The study revealed 73% of the imagery appeared on 16 dedicated fora with the purpose of advertising paid downloads of videos of webcam child sexual abuse. In some cases, children were being coerced into sexual activity in order to gain “likes” or comments from viewers.

D. Profits Cryptocurrencies are far more volatile than physical

currencies, as they are neither regulated nor backed by banks.

Digital currencies, or “cryptocurrencies”, such as Bitcoin, are virtual or electronic currencies that are traded online. These currencies have created a means by which criminals can receive payment and hide or move proceeds of crime. The European Union Agency for Law Enforcement Cooperation (Europol) gives estimates of infra-criminal traffic which takes place in crypto currency (Europol 2018, The Internet Organized Crime Threat Assessment).

There are several advantages to using digital currencies over cash, which extend beyond trafficking in persons to other organized criminal activities:

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• Digital currencies remove the need to launder cash, which is more difficult in most countries due to increasingly strict cash reporting and money-laundering compliance regulations. Substantial amounts of cash act as a “red flag”, drawing the attention of the authorities to the enterprise. Most countries with anti-money laundering legislation impose investigation and reporting obligations on financial institutions for cash movements at or around a USD 10,000 limit.

• Funds in digital form can be moved across international borders with ease, thereby circumventing limits on cash transfers across jurisdictions.

• Using multiple digital “wallets” (a separate wallet for each transaction) creates additional challenges for police and anti-money laundering authorities to track transactions and monitor patterns.

• Digital currencies provide relative anonymity. • There is a reduced risk of a counterparty reneging on a

transaction relative to more mainstream financial based transactions. This is because many digital currency transactions are irreversible and can only be refunded by the receiving party.

• Likewise, copious amounts of cash make traffickers potential targets for other criminals. There are examples of criminals stealing large sums of digital currencies from exchanges: In June 2018, the South Korean cryptocurrency exchange Bithumb announced that USD 35 million had been stolen by hackers (see CCN Report here). The use of cryptocurrencies involves new actors in the

trafficking arena, such as “crypto traders”, “crypto mixers”, “crypto exchangers” and “crypto exchanges”. Law enforcement and policymakers globally have to endeavour to think how to add these new stakeholders to investigations.

III. TECHNOLOGY IN SMUGGLING OF MIGRANTS There is a paucity of available data and research on the use

of cyber-technology to facilitate smuggling crimes. However, according to the European Commission (2016), “the use of social media in migrant smuggling has witnessed an exponential growth in recent years”. In 2016, ten EU Member States confirmed to the European Migration Network that social media platforms had been used to advertise smuggling services, provide information on migration routes and facilitate communication between smugglers. In 2017, UNHCR published research on the social media use of Arabic speaking and Afghan refugees and migrants. The researchers monitored hundreds of Facebook pages for a period of ten months, recording qualitative data on information exchanges between migrants, offers made by smugglers and document fraud information.

Further, there is some evidence to suggest that technology (in particular access to the Internet provided by smartphones) is changing the dynamic between smugglers and migrants and the shape of irregular migration, as explored in one study with reference to Afghan, Iranian and Syrian migrants (Zijlistra and an van Liempt, 2017). It is evidenced that information and communication technology is used in smuggling of migrants in numerous ways. Here we discuss advertising, communication, financing and logistics:

A. Advertising Smugglers may choose to market their services online

through social media sites and “word of mouth” advertising between migrants and smugglers using smartphones. According to Brunwasser (2015), smugglers advertise their services on Facebook like “any legitimate travel agency”. The UNHCR 2017 study shows that there are hundreds of Facebook pages, offering both legal and illegal services with full contact numbers. Although difficult to measure with any precision, recruitment clearly occurs online in the context of smuggling. Technology can increase the reach of smugglers’ services, facilitating recruitment within a broader range of communities without the need, necessarily, for smugglers’ physical presence. As with trafficking, there is scope for further research into a correlation between the level of mobile telephone and Internet penetration in a country and the rates of smuggling.

B. Communication Smartphones, emails, social media platforms and apps are

used by smugglers to communicate with migrants, and by migrants to communicate with smugglers, other migrants, families and other contacts. The communication opportunities afforded to smugglers by technology allows them to better facilitate the smuggling process, respond to challenges faster, and direct migrants from afar. It is likely that communication technologies reduce the need for smugglers to physically accompany migrants across and between borders.

Importantly, electronic communication also allows smuggled migrants (and those considering being smuggled) to discuss and review the services of migrant smugglers. Online social media sites give migrants a means to learn of the experiences of others with particular smugglers, including comments on their reliability and trustworthiness. Migrants can also use the Internet to verify information obtained from smugglers through online research. This could be in relation to prices (are they being charged more than the usual asking price), the safety of the route to be used, the desirability of a destination State and the strength of its border controls (i.e. is the smuggling venture likely to be successful?).

C. Financing Payments to smugglers are primarily made through cash

in hand, the use of third party guarantors (family members) or through instalments on online payment systems (Global Initiative against Transnational Organized Crime, 2017). One such example is the use of ‘hawala’, an informal value transfer system existing outside traditional banking systems that uses third party brokers to make transfers with no paper trail connecting the smuggler and migrant. Cryptocurrencies may increase the ease with which smugglers, and the organized criminal groups they operate within, are able to receive, hide and move money. Such currencies can aid money-laundering, the transfer of funds across national borders, and can help smugglers avoid investigation and apprehension by authorities by providing anonymity and reducing the need to carry large quantities of cash.

D. Logistics Smugglers utilize information and communication

technology to provide information and/or communicate logistical services, such as types of services offered, times, dates and pricing of services, travel options and plans, and items, supplies and any equipment needed. It can also be used to conduct research on migration routes. For example,

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researching which borders have lighter or stricter security and what times of day to arrive to attract the least attention. Research is also conducted to obtain information about what to expect during migration and what actions to take in certain situations (such as, what to do if apprehended by law enforcement).

IV. USING TECHNOLOGY TO PREVENT AND COMBAT TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS

Perpetrators of trafficking in persons and smuggling of migrants may exploit the Internet to facilitate organized crime in numerous ways, such as:

• Communication between members of a criminal organization;

• Coordinating actions and activities; • Online grooming; • Recruiting trafficking victims, including for labour

and/or sexual exploitation and organ removal; • Recruiting would-be migrants for smuggling activities; • Marketing goods and services that are the product of

activities related to trafficking, such as sexual services or labour services involving exploitation, including child trafficking for labour exploitation (child labour);

• Controlling victims by menace or coercion such as threats to make sexual content public or available to persons particularly important to a victim;

• Trading in child abuse material; • Live-streaming abusive conduct; • Taking online payments for services provided by

exploited trafficking victims or through smuggling activities;

• Laundering the financial proceeds of trafficking and smuggling; and

• Jurisdiction shopping such as creating online content in one jurisdiction for dissemination in another jurisdiction to circumvent domestic legislation. This is particularly prevalent in live streaming child sexual abuse.

The use of technology in the contexts of this paper can, broadly speaking, be divided into two areas: disruption and evidence although, inevitably, there are features where those two overlap.

A. Disruption There is growing interest in finding ways to “exploit

technology” to disrupt human trafficking and migrant smuggling networks. For example, law enforcement authorities use technology to identify traffickers and smugglers and data mining to identify suspicious transactions (Latonero, 2012, p. v; European Commission, 2016). Technology at borders is increasingly deployed. This influences ease of movement but also affords an opportunity to combat smuggling, provided border forces are sufficiently trained on the issues and enabled to identify and divert migrants. Technology can also facilitate the recording, storage, analysis, and exchange of information relating to identified victims of trafficking.

The concepts of investigation and deterrence converge when it comes to the virtual presence of law enforcement, often in the form of “catfish” profiles being created to snare organized criminals operating online. The use of fake profiles

can allow digital evidence to be gathered as part of an investigation. They can also act as a deterrent: if a would-be trafficker fears that he/she may be communicating with a police officer he or she is less likely to take that risk. However, care has to be taken where individual jurisdictions prohibit entrapment or “sting” operations.

The main obstacle to investigations is the amount of time needed to conduct them and an inability to engage in criminal activity save for authorized “undercover” operations. Technology can be leveraged to reduce the amount of time it takes to identify perpetrators and victims, and proactively remove trafficking/smuggling content. For example, chatbots can be utilized to engage in conversations with thousands of online abusers at the same time. It should be noted that ethical approval for some research techniques can be difficult to obtain, which can affect investigative progress, especially where jurisdictions have no political will to cooperate.

Another way to overcome investigative obstacles is through the use of web crawlers and data mining tools. The Defence Advanced Research Projects Agency (DARPA) developed tools under its Memex programme that have been used to identify human traffickers and trafficked victims. As part of Memex, web crawler and data mining tools have been developed that scrape online advertisements (on the visible and the deep web) and create databases with this information. In particular, these tools (such as DIG and TellFinder) comb advertisements, download content, identify links between downloaded items, add information databases, and enable database queries (Karaman, Chen, and Chang, n.d.; Pellerin, 2017). The information in these databases is mined to identify trends and patterns and these are mapped into visual formats. This mapping enables the identification of timelines and movements of victims.

Anti-trafficking organizations use social media platforms, such as Facebook and Twitter, to communicate information about trafficking in persons and smuggling of migrants, post information about or links to trafficking and smuggling cases and relevant news stories, connect with other organizations with similar objectives, and post opportunities for civil society involvement in anti-trafficking and smuggling campaigns (Latonero, 2012).

These organizations also use video sharing platforms (such as YouTube) to educate the public about trafficking in persons and smuggling of migrants. The Polaris Project, for example, uses social media and video sharing platforms to raise awareness, and also launched a texting service (BeFree), available 24/7, where victims and survivors of human trafficking can receive assistance.

Reporting mechanisms for witnesses and victims via telephone or the Internet have been established. Another example is the joint initiative of the Bahrain Labour Market Regulatory Authority and the telecommunications company VIVA, which provides SIM cards to expat workers arriving in the country so that abuse can be reported.

B. Evidence Crime prevention is inevitably the most effective but

justice system solutions need to be present and this involves evidence gathering, analysis and presentation. Evidence of suspects using fake caller IDs or spyware can be used to rebut claims of innocent association and to prove criminal intent.

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Flight bookings and bank records of cash withdrawals abroad assist in proving transnational trafficking.

Other useful and often incriminating sources of digital evidence include:

• Phone data – the reliance of modern traffickers and smugglers on their smartphones means that a wealth of evidence is available on those devices if they can be accessed;

• Social media postings – images, video, contacts, associates, locations, and other information can be gleaned from social media accounts; and

• Digital footprints, including the browser history on personal computers and IP addresses.

The use of this digital evidence allows for far stronger cases to be constructed, and for tangible evidence to support the accounts of victims and witnesses when they give evidence. In the absence of victims or witnesses to give testimony, digital evidence can be used on its own by prosecutors and authorities to bring cases to court and secure convictions through digital forensics.

Digital evidence may be available from exhibits seized from smuggled migrants or victims of trafficking, or from suspects. Law enforcement investigations are conducted to identify, investigate, and obtain evidence that will ultimately lead to the prosecution of traffickers and the protection of victims. In relation to investigation of transnational organized crime, this needs to be cooperative. For example, the United States FBI’s Operation Cross Country, which in 2017 was run for the 11th time in cooperation with other countries (Canada, the United Kingdom, The Philippines, Thailand and Cambodia), conducted these operations offline (in, for example, bars, casinos and truck stops) and online, resulting in the arrest of 120 traffickers (FBI, 2017). Three examples can expose the issues:

• Images taken with mobile phones or digital cameras contain metadata. This metadata contains information about the camera used as well as the image itself, such as its dimensions and format. Metadata may match images to devices in the possession of a suspect. Similarly, metadata may assist in providing the dates on which images were captured and crimes committed. The subject matter of images and geo-tagging can also be used to determine the location at which a material event took place.

• GPS data can be used for tracking location and device history. In one case from the United States in 2011, a man entered a guilty plea to trafficking offences after posting commercial services of a minor on Backpage. Investigators were able to use the GPS data on a trafficker’s car to establish the locations of several customers (Latonero, 2011). Another example of the use of satellite technology is the Geospatial Slavery Observatory project undertaken by Nottingham University, which uses geospatial intelligence to detect instances of slavery. In 2016 the Telegraph reported that this research had been used to uncover five previously unknown labour camps in Bangladesh which were suspected of using child slaves. In a recent terrorism trial a “frequent locations” application was used to infer association at a particular time.

• Crowdsourcing, “the act of taking a job traditionally performed by a designated agent (usually an employee) and outsourcing it to an undefined, generally large group of people in the form of an open call” (Howe, 2006), has been applied

to anti-trafficking initiatives (Latonero, 2012, p. 20-21). One particularly innovative app, TraffickCam, invites members of the public to upload photographs of the hotel rooms they stay in, so that a crowdsourced database can be built with the images and the features of the rooms can be used to locate where trafficked victims are being held and/or abused. This identification is made possible by examining the surroundings of images or videos posted depicting the victim.

V. PRIVACY AND DATA CONCERNS The harnessing of technology for tackling trafficking and

smuggling crimes needs to be vigorously pursued, but without undermining the fundamental rights of both the victims and the public (Gerry et al 2016). Examples of technology which might be used to facilitate trafficking and smuggling but can also create privacy and data concerns include the following (Gerry et al 2016):

A. Location tracking • Both traffickers and smugglers may track and monitor the

activities of the victims/migrants by direct or remote interrogation of their phone. This can also provide access to a database of evidence. At the same time, the safety of an individual may be severely compromised. Removing technology can be disempowering, can transfer power and cause isolation. As mentioned further above, States such as Bahrain have distributed SIM cards to workers upon arrival in the country to enable the workers to use text messaging to contact the regulatory authority immediately if there are problems with their employers. Such approaches enable State tracking of migrants which, whilst used to text or notify of risks, can also compromise the privacy and data of the individual by revealing political or religious affiliation or personal relationships and creating a risk of transfer of data for commercial purposes.

B. Data collection • Data can assist in detection, investigation and prosecution and

can assist in predicting crime patterns and anticipate activity for the purposes of crime prevention. Collected data can enhance investigative cooperation at national and transnational levels, thus promoting data sharing and collaboration among law enforcement bodies. Collection of personal data from those affected by trafficking and smuggling may go beyond that required specifically for a criminal investigation or mutual transnational assistance, compromising the privacy of trafficked or smuggled persons, including their personal data. Access to data creates risks to safety and compromises the recovery of victims, including in the context of profiling. Possession of data can create stigma, affecting integration into a societal environment and access to the labour market. Depersonalization and anonymization and avoiding the registration of excessive information or centralized storage can be a financial burden, which can affect both investigation and protection.

C. Drones Usage includes un-detectability from the persons under surveillance, flexibility in tasking and ability to facilitate border management and cover remote areas. Maximized surveillance can raise serious privacy concerns regarding the individuals monitored. Not all jurisdictions recognize privacy in public spaces and when used at borders or urban areas they may capture images of legitimate operators who become the subject of recorded material and potential scrutiny.

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Privacy and data protection considerations are included in the UNODC toolkit on “[u]se of standardized data collection instruments” or the “United Nations Inter-Agency Project on Human Trafficking, Guide to ethics and human rights in counter trafficking”. The global nature of trafficking in persons and smuggling of migrants means that attention needs to be paid to similar concerns in various locations where concepts of privacy and data protection are less well developed.

VI. EMERGING TRENDS It is in the area of emerging trends that we suggest there is

a real opportunity to focus on the victim / perpetrator paradigm so that there is a greater understanding that people can be both victims of trafficking and commit criminal offences or consent to smuggling. There are opportunities to both harness data and create systems with more complex investigative methods and decision making. Three emerging trends seem to be appearing: The role of the private sector, the individualisation of activity and technological progress:

A: Private Sector

Private sector has a role in both protection and investigation. Aside from NGO protection for those victims who have been identified, harnessing technology to counter both smuggling of migrants and trafficking in persons inevitably involves developing software and sharing data and information with law enforcement agencies and prosecuting bodies. In 2018, the Global Initiative against Transnational Crime announced the Tech Against Trafficking (TAT) initiative, a collaboration between global technology companies, civil society organizations and the United Nations to support the eradication of forced labour and human trafficking through the use of technology. Examples of contributions from the private sector include Microsoft, which has organized academic fora in this area and developed a tool (PhotoDNA) in 2009 to analyse images of child sexual abuse, which can be used (without charge) both by law enforcement agencies and businesses to locate and remove child sexual abuse images (for more information, see https://www.microsoft.com/en- us/photodna). Other companies have also developed software that identifies child trafficking victims through link analysis. For instance, Thorn’s Spotlight is used to identify online advertisements for sex with underage children by analysing vast quantities of data gleaned from online advertisements in order to identify patterns and connections (Thorn, n.d.). This tool has been used in undercover law enforcement operations, such as Operation Cross Country (Thorn, n.d.). The increasing role of private actors in a space that requires protection of individuals needs significant consideration in the trafficking / smuggling context.

B: Individualisation of Activity

The individualisation of activity has particularly emerged in the context of migrant smuggling: Many migrants remain dependent on smugglers for forged documents and assistance at border crossings, due to the degree of cultural isolation of migrants, language barriers and the difficulties of evading law enforcement. However, through the use of technology an increasing number of migrants are self-sufficient throughout the migration process. This gives migrants greater autonomy and reduces their vulnerability to exploitation. Brunwasser (2015) reports on the existence of Facebook groups in Arabic

such as “Smuggle Yourself to Europe Without a Trafficker” and “Smuggling into the EU”. Technology may also help smuggled migrants keep their family updated regarding their movements and seek advice and information about their destination. Further, translation apps, like Google Translate, can help break down language barriers and help migrants communicate with other migrants and law enforcement officials. In addition, electronic cartography and GPS systems have reduced the reliance that migrants historically had on those smuggling them across borders, by allowing migrants to navigate more easily and independently through the use of portable mobile technology and smartphone services and apps (for example, Google Maps, which maps routes and provides directions from the point of origin to the envisaged destination).

The individualisation may depend on inequality between migrants which can now be measured in terms of a digital divide. There are marked advantages to those with both the means to acquire a smartphone and the digital literacy to use it effectively (see Amran and Imran, 2015). In the context of those who may be both smuggler and smuggled migrant, there can be issues over meaningful consent which may mean that some can be re-defined as trafficked victims, there can also be a blurring of lines between smuggler and migrant where irregular migrants who take on roles assisting more professional smugglers and/or their peers to subsidize their own journeys with some control over others. In the trafficking context this might be visible as trafficked victims climb the organisational ladder in order to survive which may give rise to legal questions as to whether any nexus remains with their trafficked status, even if the instant crime is not a direct consequence of the trafficking.

C: Technological Progress

As technological trends emerge, we suggest these complications in identifying trafficker from victim and smuggler form migrant are worthy of greater consideration in relation to which technology is developed and used.

Some emerging trends arising in technological progress, in a general sense, are represented in the chart below and are worthy of discussion in this context, although being mindful that law cannot hope to regulate specifics in this context as it will not move fast enough:

TABLE I. EMERGING TRENDS

Machine Learning

Artificial Intelligence (AI) and machine learning can be used to identify potential targets, change human behaviour and predict financial outcomes, potentially operating autonomously and avoiding direct criminal responsibility.

Digital applications

The workplace environment for exploited persons can be directed by virtual personal assistant software. It can also be used to enhance exploitative activity and business efficiency and improve security tools, mirroring legitimate business activity and hindering identification of criminal activity.

Technological tools, sensors and digital twins

Tools such as robotics, drones and autonomous vehicles can improve surveillance of workers and delivery of services as well as enhance security to hinder law enforcement. The potential for AI- enabled systems is enormous to include collaborative behaviour between tools in order to accomplish tasks.

Distributed ledgers and mesh systems

Distributed ledger concepts and complex communicative digital structures such as blockchain and mesh can transform operating

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Machine Learning

Digital architecture

As platforms and security structures become increasingly sophisticated, digital architecture may provide business efficiency for organized crime, making it indistinguishable from legitimate business.

Digital ecosystems, virtual and augmented reality

Online exploitative environments may create new opportunities for organized criminals.

Fig. 1. Emerging trends in technological progress

VII. CONCLUSION Advances in technology, in particular information

communication technologies made possible by smartphones and the Internet, are shaping and facilitating trafficking and smuggling crimes and creating additional barriers to their detection and investigation. This article has considered how technologies can be harnessed to prevent, detect, intervene, and ultimately thwart these crimes whilst at the same time identifying and protecting victims in a complex network of roles and activities. A crucial aspect to the use of technology to both investigate and protect continues to be how states, law enforcement agencies and private bodies collect, retain, and use information harvested during the investigation processes. These actions all raise potential concerns regarding the privacy of personal data that arise in the context of protection of victims, particularly those who may also commit crime. We suggest that these issues should be considered at the development stage of technology and the proposal stage of an investigation, particularly where data is both harnessed and collected to tackle organised crime. It follows that the tension that trafficking and smuggling creates in the context of cybercrime is a challenge to rules-based order and rights- based policy because it requires a focus on protection rather than prosecution of those hitherto considered to be perpetrators. This in turn requires a greater interaction between the disciplines of law and technology.

ACKNOWLEDGMENT The authors would like to thank barrister Alexandra Scott

and the team at UNODC responsible for finalizing the T4 Module.

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