Published in May 2019
This module is a resource for lecturers
The use of technology to facilitate trafficking in persons and smuggling of migrants
Trafficking in persons, smuggling of migrants and cybercrime can be more than individual crimes. They are also types of organized crime (for a definition of organized crime, see Module 1 of this University Module Series as well as Module 1 on Definitions of Organized Crime of the University Module Series on Organized Crime). The first part of this Module provides a brief overview of trafficking in persons and smuggling of migrants, the distinction between them and an overview of cybercrime. It also evaluates how trafficking and smuggling can be facilitated/enabled by technology.
Two of the three Protocols that supplement UNTOC 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. Nonetheless, as this Module 14 highlights, criminal activities change and evolve over time and UNTOC, negotiated and signed over 15 years ago, was written to last and capture the ever-changing nature of this phenomenon. For this reason, to provide a response to present and future criminal justice needs, UNTOC does not limit itself to a list of activities carried out by organized criminal groups. It applies to all serious crimes, defined as those offences punishable by a maximum penalty of incarceration of at least four years (see Module 1 on Definitions of Organized Crime of the University Module Series on Organized Crime). This threshold has real and practical implications for those States that are parties to UNTOC, as it is instrumental in invoking the international cooperation provisions contained in the Convention. (See Module 11 on Sentencing and Confiscation in Organized Crime of the University Module Series on Organized Crime).
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 (see for instance Module 7 on Models of Organized Criminal Groups of the University Module Series on Organized Crime, Module 1 on Introduction to Cybercrime and Module 2 on General Types of Cybercrime of the University Module Series on Cybercrime).
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 and conflict.
Overview of trafficking in persons and smuggling of migrants
Trafficking in persons is a combination of three elements: act, means and purpose. It is defined in article 3 of the Protocol 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 (for further explanation of the crime of trafficking in persons, see Module 6).
Smuggling of migrants is defined by article 3 of the Protocol 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" (for further explanation of the crime of smuggling of migrants, see Module 1). Unlike trafficking in persons, which may occur in one State, smuggling requires the crossing of national borders. Migrant smugglers act for the purpose of obtaining a financial or material benefit, while traffickers act for the purpose of exploitation. The differences and similarities between the two offences are further explored in Module 11.
Overview of cybercrime
Cybercrime is a term used to describe crimes committed through the use of information and communication technology. The UNODC Global Programme 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 (see Cybercrime Module 1 on Introduction to Cybercrime). In particular, 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) (see Cybercrime Module 1 on Introduction to Cybercrime and Module 2 on General Types of Cybercrime for further information). Cyber-enabled offences are those which can occur "offline" but can also be facilitated by information and communication technology, such as online fraud, money-laundering, child exploitation, smuggling, trafficking in persons and other forms of trafficking (see Cybercrime Module 2 on General Types of Cybercrime, Module 12 on Interpersonal Cybercrime, and Module 13 on Cyber Organized Crime for more information about these offences).
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). Attempts to measure cybercrime require substantial processing and sophisticated information and communication technology resources. These are only available in some countries, where cybercrime law enforcement agencies are better equipped and legal frameworks gives them the necessary legal authority (see Module 5 on Cybercrime Investigation and Module 6 on Practical Aspects of Cybercrime Investigations and Digital Forensics of the University Module Series on Cybercrime).