In March, the Securities and Exchange Commission announced its first securities enforcement action involving the “dark web”. The SEC’s complaint describes the “dark web” as referring to “a subset of the deep web that is intentionally hidden, requiring specific software to access content”. The SEC states that the “deep web” refers to “anything on the internet that is not indexed by, or accessible via, a search engine like Google”.
The SEC’s complaint alleges that,the defendant “offered and sold on one of the dark web marketplaces various purported
‘insider tips’ that he falsely described as material, nonpublic information from the insider trading forum or corporate insiders”. I found this interesting because the SEC wasn’t charging the defendant with insider trading but with selling false insider tips. This may be fraudulent, but is it it a securities law violation? Stock tips, whether false or true, are not themselves securities. How does the SEC bring the defendant’s allegedly fraudulent conduct under the securities laws?
To establish a violation of Rule 10b-5, the SEC must prove that the defendant’s activities were “in connection with” the purchase or sale of a security. Here, the defendant’s deception did not relate to securities that he sold to investors. The SEC’s complaint attempts to connect the defendant’s activities to securities transactions by alleging that traders paid for the tips using Bitcoin, and used the fake insider information to purchase and sell stock of various publicly traded companies. In SEC v. Zandford, 535 U.S. 813 (2002), the U.S. Supreme Court found that the person deceived do not have to be counterparties to the person committing the fraud. However, the defendant in this case might argue that his fraud was complete when he sold the false tips and therefore the SEC cannot establish the requisite connection. I will be interested to learn whether this becomes a contested issue at trial.