Tor Browser Legal Issues.

It is generally lawful to use the Tor Browser throughout the United States, provided that the user’s conduct remains lawful. While Tor allows users to access the dark web, simply visiting this hidden part of the internet does not, in and of itself, automatically constitute a crime. There are many examples of lawful Tor users, including journalists, researchers, cybersecurity professionals, and individuals who are simply privacy-conscious about their online presence. For those facing extreme surveillance, Tor can be a critical tool for staying safe and protecting their freedom. Importantly, the mere use of encryption, anonymity software, and other privacy tools, including the Tor Browser, does not establish criminal conduct. While these tools can be utilized by individuals attempting to conceal their identities and hide their tracks while engaging in illegal activities, their existence is not prohibited. Using Tor, a VPN, or private browsing does not constitute a federal offense on its own. However, if law enforcement is already targeting an individual’s online activity, the use of Tor and similar anonymity tools may be interpreted as an attempt to evade detection, conceal evidence of wrongdoing, or avoid criminal prosecution. In such cases, the use of these tools can be a focal point of the government’s investigation and can contribute to a criminal case. Another point of confusion is the distinction between the Tor Browser, VPNs, private browsing, and the dark web. While all of these tools and concepts are related to online privacy and anonymity, they are not the same, and it is important to understand these distinctions, especially when dealing with federal investigators and defense counsel.

Which dark-web conduct creates criminal exposure?

The distinction between legal and illegal conduct on the dark web isn’t always black-and-white. It involves a variety of factors, and it can take time and resources for law enforcement to uncover the full scope of an individual’s activity. That said, there are several key factors that tend to be the biggest red flags. For example, simply opening a website in the Tor Browser is one thing, while creating an account on that website is another (and more significant) action. Similarly, while even a few clicks can occasionally land someone in trouble, repeated visits tend to be treated differently than a single accidental visit.

If there is evidence to suggest an intentional, knowing search for prohibited material, then the legal risk is significantly greater than it is for passive browsing. In these cases, federal prosecutors may investigate or charge attempt or conspiracy only when the applicable elements are satisfied, among other offenses.

Along with the attempt and conspiracy theories of liability, federal prosecutors may also focus on the elements that contribute to federal jurisdiction in online offenses. This includes the alleged perpetrator’s attempt to transact across state or international lines, the alleged involvement of foreign governments or state-sponsored hackers, and the alleged impact on U.S. citizens and companies.

How can investigators connect Tor activity to a person?

Unfortunately, the perception that using the Tor Browser and similar privacy-enhancing technologies makes a user practically invisible online is greatly exaggerated. While these tools make anonymity more likely, Tor does not guarantee that online activity will remain untraceable. In fact, law enforcement agents have developed sophisticated methods and technologies aimed at uncovering users’ identities when using Tor and similar tools. To build an evidence-based case, federal investigators will examine any and all evidence available to them. The digital logs and timestamps left by a user’s internet activity are a critical component of these investigations, and law enforcement agents can use these logs to connect a user to the computer and location used to access illicit content.

Law enforcement agencies may also create undercover accounts on dark-web services. With these accounts, undercover agents can monitor users’ activity and gather information about their identity, intentions, and potential criminal exposure.

In some cases, the government will use a federal grand jury to obtain subpoenas and separately seek search warrants from a judge. With these warrants, law enforcement can seize computers, smartphones, external storage devices, and other means of electronic storage.

After these devices are seized, federal agents and digital-forensics specialists will examine all data stored on the devices in an effort to uncover evidence that is relevant to their investigation. Digital forensics can uncover a wealth of information about a person’s online activity, including evidence that the user may have believed was deleted or securely erased. This includes access to websites and services through the Tor Browser, as well as evidence of illegal transactions, communications, and other unlawful conduct.

From examining digital logs and timestamps to conducting search warrants and digital forensic examinations, federal agents will use any and all resources available to them to connect Tor activity to an individual in an online-crime investigation. With the ability to establish an individual’s identity, federal agents can then build a comprehensive criminal case and pursue charges for attempted and successful online-crime offenses.

What penalties can federal charges or Virginia examples involve?

The possible penalties in these cases depend on various factors. In general, federal charges carry the potential for long-term federal prison sentences. For example, wire fraud under 18 U.S.C. § 1343 carries a stated maximum term of twenty years, while bank fraud under 18 U.S.C. § 1344 carries a stated maximum term of thirty years. Both of these charges carry federal fines and the potential for forfeiture of any proceeds gained through the execution of the offenses in question. When determining a recommended sentence within a federal criminal case, federal judges consult the U.S. Sentencing Guidelines. The Guidelines’ methodology combines the defendant’s offense level with the defendant’s criminal-history category in order to generate a recommended sentence range.

For example, in the hypothetical case of Tor-related bank fraud we discussed above, the U.S. Sentencing Guidelines’ methodology would result in an Offense Level 23 and Criminal History Category II, which would generate a recommended sentence range of fifty-one-to-sixty-three months. This recommended sentence range is less than half of the statutory maximum of thirty years. In a typical federal criminal case, it is far more likely that the government will pursue a sentence in this guideline range than a statutory maximum, and, if convicted, there is much more likely that the sentencing court will follow the recommendation that results from the Guidelines’ methodology.

Still, federal judges have the authority to depart from the recommended sentencing ranges if they find the recommendations are not the most appropriate for the circumstances. They can also consider variances from these ranges. As a result, while the federal sentencing guidelines are a key factor in the sentencing process, they are not exclusively determined by the government.

How should someone respond when investigators mention Tor activity?

When speaking with agents about the investigation, it may not be immediately apparent that you are being considered as a potential defendant, as these investigations can often continue for months or years before an arrest. However, if the agents in charge are asking you about the Tor Browser and accessing the dark web, it could be one of the first signs of criminal exposure. At Spodek Law Group, our federal defense lawyers help our clients make smart, informed, and strategic decisions regarding how to respond to allegations. There is no such thing as a truly permanent deletion. Even if you deleted the files, apps, and software that are related to your use of the Tor Browser, agents and forensic analysts at the FBI and other federal agencies may still be able to recover them. Furthermore, if the government is able to prove that you deleted these files with the intent to avoid or delay a criminal investigation, this can create separate evidence for a different crime, destroying or concealing evidence, which could lead to a criminal conviction even if you are not convicted of your original charges. Disclaimer: The information provided above is intended for educational purposes only and is not meant to be construed as legal advice. Your communications sent to our law firm using our online communication forms do not establish an attorney-client relationship, and we ask that you refrain from sending highly confidential or extremely time-sensitive information through our forms.

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