Putting a Price on the Priceless: Measuring the Illicit Antiquities Trade in Data and Dollars

On July 26, 2021, the Antiquities Coalition and George Mason University Terrorism, Transnational Crime and Corruption Center (TrrACC) conducted an on-line discussion about measuring the illicit trade in antiquities.

 The participants included Louis Shelly (LS) (TrrACC), Neil Brodie (NB) (Oxford), Layla Hashemi (LH) (TrrACC), and Ute Wartenberg-Kagan (UWK) (American Numismatic Society).  Patrick Costello (PC) (Council on Foreign Relations) served as the moderator.

 LS explained the discussion is part of a “big data analysis” performed by TrrACC under a State Department contract.  It looked at both the low end and high-end markets using methods including advanced technologies developed by DARPA to review the Dark Web. 

 Their findings evidently will be published in a book by Rutledge.

 In 2013, NB valued the antiquities market at $64-300 million.  The coin market is valued at $56-$300 million.  RAND’s study did not value the coin market.

 UWK indicates that the coin market comprises of a low-end and a high-end market.  The low-end market found on eBay is huge with over 2 million pieces offered valued at $40-$100 million.  The low-end market represents a significant problem that collectors, archaeologists and the trade should address.

 NB says valuing the trade is a fool’s errand and we should instead focus on the damage the trade causes.  There are ways to estimate the values of artifacts extracted from archaeological sites. 

 LH indicates one must also assess tangible and intangible impacts to cultural heritage, links to terrorism, and funding conflicts.  Technology lowers the barriers to entry into the market meaning gray market participants can act with impunity.

 There is some discussion of free ports.  However, coin traders do not appear to use free ports.

 LH indicates the total illicit trade of all goods (not just antiquities and coins) is $2-$3 trillion.

 NB indicates looting during conflicts does not only harm cultural heritage directly, but the conflicts also drive qualified academics out of countries where they could assess the damage.

 UWK indicates that it is difficult to explain to villagers why it is not a good idea to loot.  In places like Turkey this is even more difficult because those who work the land often do so for absentee landlords.

 UWK indicates the coin trade still purchases fresh coins where it believes it is legal to do so under U.S. law.  She also indicates there are disagreements whether the proper date to assess the provenance for a coin should be the 1970 date of the UNESCO Convention or the date of a Memorandum of Understanding with a source country.  She indicates the focus should be to keeping coins that have been illicitly excavated recently off the market.

 LS indicates that the antiquities trade will soon be subject to Anti-Money laundering regulations, but the art and coin trade should also be subject to such regulations. 

 NB indicates that he is doubtful that established antiquities dealers sell recently looted artifacts, but he indicates that they regularly sell artifacts looted decades ago.

 LH indicates that much of the low-end market is sold on Facebook despite rules against selling antiquities on that platform.

 There are not many antiquities on the Dark Web, but that is because they are sold openly on other platforms. If there is a crackdown on these platforms, it is possible business will move onto the Dark Web.

 There also is some use of crypto currency to purchase antiquities which may raise some issues.

 NB indicates it is hard to get people motivated to protect sites unless tourist dollars are at issue.  Farmers typically aren’t interested in preserving sites.  It is difficult enough to convince people not to loot, but impossible when there is a conflict and people are desperate.

 Prosecutions are helpful to disincentivize unlawful activity.  There are members of DHS law enforcement on the zoom call. 

 NB believes training the military about cultural heritage is a waste of resources. 

 UWK indicates a major problem is the lack of resources directed at enforcement.  She is pessimistic eBay or Facebook can be convinced to stop allowing their platforms to sell coins.

 NB believes antiquities sales should be taxed with the funds going to enforcement.

 LS again states her belief that art in addition to antiquities should be subject to anti-money laundering regulations. 

 LH states her belief that there are some unsavory actors behind the trade on Facebook.

 UWK indicates that Covid has made it harder to move illicit goods. 

 NB does not believe the Portable Antiquities Scheme or Treasure Act is an answer.  He maintains that finds in the UK are grossly underreported, and that the PAS encourages looting.

 Comment:  Very little new information came out of this presentation.  All the participants except for UWK seemed generally hostile to collecting.  LH seemed to be reading Antiquities Coalition talking points throughout much of the presentation.  The content of this seminar should raise fundamental questions about how studies with inputs solely from activists are prepared.  Additionally, one suspects funding considerations may also impact how problems are viewed.  Here, all the focus on discouraging demand for antiquities and coins is not surprising because a holistic approach focused primarily on addressing the causes for looting at the source would require an acknowledgement that source country practices are often a major part of the problem.  No wonder TraCCC came up with a series of excuses why its staff could not to meet with representatives of the coin trade to discuss these issues from a different perspective while its study was ongoing.

A Triumph of Fear Mongering Over Facts

On Jan. 1, 2021, the Senate joined the House in an override of President Trump’s veto of the National Defense Authorization Act (NDAA).  The NDAA contained amendments introduced by Congresswomen Carolyn Maloney (D-NY) directed at a number of Anti-Money Laundering (AML) initiatives.  As a result of that amendment to the House version of the NDAA incorporated into the legislation that passed both Houses after a conference with the Senate, "person[s] engaged in the sale of antiquities" (however "antiquities" might be defined) now find themselves subject to the provisions of the Bank Secrecy Act (BSA) and its regulatory requirements to create and maintain an anti-money laundering program, prepare an annual independent audit, and file where appropriate “suspicious activity reports.”  Such AML programs typically cost thousands of dollars per year to implement  as well as the time and effort required to comply with such regulations.  The costs to small and micro business are substantial.  Furthermore, it is impossible to “fly under the radar screen” of such requirements; such regulations are enforced by the banks which will close accounts which do not comply. 

The exact scope of these obligations for antiquities dealers will be determined in  yet to be promulgated regulations to be prepared by FINCEN (the Financial Crimes Enforcement Network), a Treasury entity.  Those proposed regulations will be subject to “notice and comment” rule making.  Notice and comment rule making should require FINCEN  to respond to concerns raised in public comments before the regulations are finalized.  That process, which will probably not happen until later in the year, will be an opportunity to ask FINCEN to define “antiquities” narrowly as possible and to adopt high monetary thresholds before bureaucratic requirements kick in. 

 In that regard, Congress supplied the Treasury Department with the following specific guidelines for the regulations: 

• having the regulations vary by the size of the business, the size of the transaction being conducted, and whether the transaction takes place in the United States or elsewhere;
• whether the regulations should focus on the high-value trade in antiquities in a different way than lower-value objects;
• whether the antiquities dealer must identify the actual purchaser of an antiquity when the seller or buyer is working through an agent or intermediary;
• the need, if any, to identify trade seller or buyers, such as other dealers, advisors, consultants, or other persons trading in antiquities as a business;
• whether volume or financial thresholds should apply in determining whether an antiquities dealer or a specific transaction should be regulated; and,
• whether certain transactions should be exempted from the regulations.

These guidelines were added to the Maloney Amendment during the Conference with the Senate.  Presumably, they are the result of  Global Heritage Alliance and other advocacy groups for collectors and the businesses of the antiquities and art trade raising these issues with Senate Finance. 

The law also requires a further study to be conducted by Treasury solely with input from law enforcement agencies as to whether the larger art market should also be regulated.

Despite some effort to require FINCEN to focus its efforts on more problematic actors and transactions, this law represents a triumph of fear mongering over fact and intensive lobbying, chiefly by archaeological advocacy groups with an axe to grind against private collecting and the trade, along with AML compliance contractors looking for a new line of business.  This effort was led by the Antiquities Coalition, a well-funded and politically connected archaeological advocacy organization, and AML Right Source, an AML compliance contractor.  Their advocacy is also reflected in the New York Times Coverage of the issue:  https://www.nytimes.com/2021/01/01/arts/design/antiquities-market-regulation.html  It is indeed unfortunate that neither Congress nor the Times paid much attention to serious questions raised about the claims behind this advocacy:  https://culturalpropertynews.org/rand-corp-report-demolishes-assumptions-on-antiquities-and-terror/

 It will be absolutely essential for collectors and the small businesses of the antiquities trade to comment on these regulations if we are to have any impact on how hard they will be on collecting and the industry.  There also is at least the possibility that  FINCEN will propose very broad regulations by treating “antiquities” the same way as “antiques.”  (There is some precedent for this in other U.S. statutes.)  Obviously, if “antiquities” are treated as “antiques” much of the art and collectibles business will be subject to these regulations.  Certainly, we can expect the archaeological lobby and AML contractors to push to have these regulations to cover as many dealers as is possible.  However, while the Antiquities Coalition and AML Right Source may be well funded and have both political influence and the ability to place favorable coverage in the NY Times, what they lack is the ability to generate large numbers of comments.  Of course, we will see if collectors and the trade turn out in force to protect their hobby and their businesses.  The numbers are certainly there if these groups can be motivated.