There are several private actors that might be of relevance for investigations and prosecutions of cases of migrant smuggling. This subsection will focus on two: internet service providers (ISPs) and financial service providers (FSPs).
The modus operandi of many smuggling ventures relies on social media platforms, both for recruitment and follow-up arrangements.
Social media networks and channels are used in many ways in the context of migrant smuggling. One common usage is where various social media serve as 'consumer forums'. In a business where there is a considerable gap between the information that is shared with migrants and reality, migrants often try to reduce this gap by using social media tools to research the smuggler and the journey they are planning to undertake. To organize journeys, the internet is used to share recommendations (or negative reviews) of migrant smugglers as well as information about routes and prices.
Syrians make extensive use of technology and social networks, such as Facebook, Viber, Skype and WhatsApp, to share their insights. The use of such tools has also been documented in South Asia, for the selection of smugglers, and in Africa.
In destination countries, smuggled migrants publish feedback about smugglers and their services; exposing cases where smugglers failed, cheated or treated migrants badly. Migrants and refugees also comment on their experiences in the receiving countries as well as administrative procedures to stay in the country. Social media channels are also used to promote smuggling services. This is often done by posting ads on Facebook or other fora normally used by migrants to exchange views and experiences. In their posts, smugglers present their offers, often by inserting attractive images.
They underline payment modalities; for instance, payment after the delivery of the required visa. They may also ask potential clients to contact them directly via a range of messaging services, some of which also offer the advantage of anonymity. Different 'travel packages' can be found, from cruises to flights. It is common to advertise 'guaranteed visa' for destination countries, as well as passports or any other travel documents. In selling their services, smugglers often deceive migrants and channel irregular migration movements towards or away from certain transit and destination countries. In some Facebook pages, smugglers pretend to work for NGOs or fake European Union agencies tasked with organizing the safe passage to Europe by sea. Smugglers targeting Afghan migrants have also been found to pose as 'legal advisors' for asylum on social media.
UNODC , Global Study on Smuggling of Migrants, 2018
It is critical to establish incentives and partnerships with ISPs and social media platforms, as far as feasible, to encourage the creation and implementation of mechanisms to monitor and block smuggling related content. See, for example, the case of Facebook in Box 8 below.
Facebook removes posts made by people smugglers aiming to lure migrants
Facebook has removed several posts made by people smugglers openly advertising to attract migrants seeking passage to Europe.
Written in Arabic, many of the posts were accompanied by videos and testimonials of what the smugglers claim are successful trips across the Mediterranean from Turkey to Greece, and from Egypt to Italy. All were written in recent months, at a time of year when many people attempt the journey. (…)
A spokesman for Facebook said: "People smuggling is illegal and any posts that coordinate this activity are not allowed on Facebook. We have removed all the content that the Guardian shared with us for violating our community standards. We encourage people to use our reporting tools to flag this kind of behaviour, so it can be reviewed and swiftly removed by our global team of experts and escalated to law enforcement where required."
Facebook posts by smugglers attempt to paint a rosy picture of the service. They are often accompanied with images of large boats in calm seas or posts about "successful" trips. In one entry, a smuggler describes himself as a noble "hero", enabling people to access a better life in Europe. Another, in response to a query on the risks involved, says: "Some are worried about safety and security. You have to understand, it's in our interest to get you to your destination securely so that others will come." (…)
The Guardian, 25 August 2017
Law enforcement may need ISPs and social media platforms to release data relevant to investigations. The extent to which this is possible will depend on national legislation (particularly laws on the processing and protection of personal data). Yet, it will also depend on contractual privacy protection arrangements that restrict use of this data. It is extremely important to forge partnerships between ISPs and law enforcement so that ISPs can be trained to recognize and investigate suspicious content. ISPs may develop monitoring (preventive and investigative) systems and promptly refer information to authorities and/or block content. Moreover, these partnerships can facilitate the development and dissemination of counter-narratives through social media and potentially address other forms of cybercrime. Finally, online content may be used as e-evidence in investigations and prosecutions.
In the EU online service providers have no obligation to monitor the information provided on their platforms (as this goes against the principle of free movement of information as enshrined in the e- commerce Directive). Service providers like Facebook, Twitter or Google have their own internal policy about shared content. In the case of Facebook, activities related to human smuggling are not allowed and Facebook has its own team of legal experts and law enforcements officers to make sure the rules of their platform are not breached, they primarily react to referrals from users of content deemed inappropriate, which they subsequently remove. Nevertheless, Facebook also indicated that the monitoring of content related to migrant smuggling is not always prioritized as compared to other crime areas, for example child pornography, and could be further improved. 14 out of 16 [EU] Member States and Norway (AT, CZ, DE, ES, FI, HR, HU, LT, LV, NO, PL, SI, SK, UK) conduct online open source monitoring activities to detect content related to migrant smuggling. Monitoring was both performed preventively (to detect and request removal of content related to smuggling) as well as for investigative purposes to lead to criminal proceedings. Closed groups are monitored in some cases where criminal proceedings are already ongoing. Whereas most Member States specifically focus on monitoring content related to migrant smuggling, others (e.g. EE, SE) may detect content related to migrant smuggling in their more general monitoring activities when searching for information related to other crimes such as terrorism.
EU agencies, such as Europol and Frontex support Member States in their monitoring activities. Frontex primarily focuses on social media monitoring for preventive risk analysis purposes (e.g. performing analyses on irregular migration routes, to inform Member States who can then tailor responses to new phenomena). Europol on the other hand is involved in both the prevention and investigation aspects, although Europol's Internet Referral Unit primarily focuses on supporting national authorities in their efforts to detect and, where appropriate, request the removal by online service providers of internet content uploaded by smugglers.
EMN, The Use of Social Media in the Fight against Migrant Smuggling (2016)
It should be emphasized that monitoring social media content poses difficult challenges, including:
When smuggling-related content is identified, a lack of cooperative ties with law enforcement may jeopardize removal. At the same time, other States may oppose removal as they may count on such content as evidence.
As to cooperation with online service providers, only 7 out of 17 responding [EU] Member States (CZ, DE, EE, ES, FI, HU, UK) have some form of cooperation with online service providers to prevent and fight migrant smuggling, but in most cases (CZ, DE, EE, ES), these are not formalized.
EMN, The Use of Social Media in the Fight against Migrant Smuggling (2016)
The use of e-evidence may also pose difficulties including, for example, the application of rules regarding jurisdiction and admissibility of evidence. For instance, "in Hungary only the information that is provided directly by the online service provider is considered adequate; while in Sweden print screens are used as evidence; while in the United Kingdom no prosecutions against smuggling services using social media have occurred to date" (European Migration Network, p. 4).
Other private stakeholders critical to migrant smuggling investigations and prosecutions are financial service providers (FSPs), such as banks, MoneyGram and Western Union. In partnership with IT vendors, they may develop (similar to approaches taken to combat trafficking in persons) transaction monitoring techniques designed to detect migrant smuggling activity (Grant Thornton, 2017, p. 5). FSPs may leverage many of the existing controls they have in place to detect illicit proceeds. Smugglers often use cash-intensive businesses, Hawala, and front companies (such as travel agencies), mixing proceeds of crime with legitimately earned funds, aliases, straw men and false documents to conceal the proceeds of crime. Given their unique position, FSPs may be very useful in identifying and monitoring unusual activity and referring it, as appropriate, to law enforcement for follow-up (see for example, the Italian Case known as Glauco I).
When most people think of services to process payments, they think of the banking system in its traditional sense. However, there are currently millions of individuals around the world who resort to various alternatives, from Western Union and MoneyGram to Hawala (a system based on trust that relies on intermediaries and has little or no paper-trail, see further below in this section).
For this reason, it is important to strengthen cooperation between law enforcement and financial service providers.
Western Union Global Investigation Network
Western Union has established a mechanism - the Western Union Global Investigation Network - intended to monitor, analyse and investigate suspicious transactions and refer them to law enforcement, as appropriate.
Western Union recommends States and international organizations should:
Nagl, Michael, Global Investigations, Western Union Payment Services Ireland Ltd (2016)
What is Hawala?
Hawala means "transfer" in Arabic and in some contexts is used synonymously with "trust". Hawala is an ancient alternative or parallel remittance system which is processed with the assistance of a hawaladar, or agent. It is largely based on trust and extensive use of connections, such as family members and ethnic ties, and is generally void of formal financial institutions such as a bank. One of its characteristic is that there is little documentation and record keeping in this system. Motivations for using hawala are its effectiveness, cost-efficiency, reliability, lack of bureaucracy, lack of paper trail and ability to evade taxes. In some instances, two terms are associated with transactions: black hawala, which refers to illegitimate transactions, particularly money laundering, and white hawala, which refers to legitimate transactions, essentially remittances. This distinction is valuable for money laundering enforcement as black hawala refers to transactions associated with serious offences, while white hawala is, for example, a transfer of money from a migrant to his family, without link with an offence.
Ronczkowski, Michael R., Terrorism and Organized Hate Crime (2017)