The Law Firm of Piacentile, Stefanowski & Malherbe LLP

Whistleblowing, A Potential Tool Against the Illicit Antiquities and Looted Art Trade?LLICIT ANTIQUITIES AND LOOTED ART TRADE?

Whistleblowing is a valuable tool for law enforcement and the government when investigating various types of fraud or illegal activity in different industries, and it can be a valuable tool in the fight against the illicit art trade. For any type of fraudulent activity, it is often difficult for law enforcement or government investigators on their own to uncover and stop the illegal activity through traditional investigation. Unfortunately, most fraudulent, and illicit activity escapes the field of awareness of even the most proficient investigators. This is where whistleblowers can make a huge difference. Whistleblowers are people who have inside knowledge of a fraudulent scheme or illegal action and who are willing to expose such activity.

Whistleblowing against Wildlife Trafficking

Whistleblowers are valuable allies in efforts against fraud in industries like Health Care, Finance, Banking, and Tax. Traditional whistleblowing cases have led to recoveries of billions of dollars by government agencies such as the SEC and IRS, which have whistleblowing offices. Whistleblowing is also a tool in combatting less traditional but still crucially important illegal trades, for example, Wildlife trafficking. There are several statutes and frameworks under which whistleblowers are rewarded for assisting in wildlife trafficking enforcement. The Endangered Species Act of 1973, which protects endangered plants, fish, and wildlife, includes a whistleblower statute that allows a whistleblower to receive a portion of any fines, or forfeitures recovered by law enforcement. The Lacey Act, the United States’ oldest wildlife protection statute, passed in 1900, prohibits the trafficking of protected wildlife, fish, and plants. This law, which helps to regulate illegal hunting, fishing, and logging domestically, and the import of wildlife from overseas, also has a whistleblower provision that was passed in the 1980s, and that allows whistleblowers to receive an award if they provide information that leads to an arrest, conviction, or civil recovery.

What If Whistleblowing Statutes Could be Used as a Tool in fighting Art Crime and the Illicit Antiquities Trade?

What if whistleblowing could be used as a tool to combat Art Crime and the Illicit Antiquities trade similar to how it is utilized in combatting Wildlife and Protected Resources? Like Wildlife, Art and Antiquities trafficking is also a major illicit market. There is not currently a whistleblower law that applies directly to Antiquities and Art trafficking. Could this be an effective tool?

Let’s look at the framework of laws and investigative tools that the government currently uses to investigate and combat art trafficking, and how there already are some potential whistleblower laws in place that can be utilized in cases of investigating art crime. When one mentions Art crime, it is a very broad category and there are various types that fall under it’s umbrella. Types of Art crime include art theft. It includes the trafficking of looted antiquities and stolen art; for example, museum heists or artworks stolen from private collections. It includes Art Forgery for example where forgers or secondary owners sell forged artwork. It also includes the Trafficking of stolen art and antiquities. Illicit art trafficking is a major illicit global trade that damages the cultural heritage of peoples, nations, and all of mankind.

Looting and theft of antiquities is a phenomenon seemingly as old as history itself. Antiquities have been pillaged as spoils of war, plundered during colonial conquests, or looted and sold as a means of economic enrichment. The modern Art industry is a multi-billion-dollar trade. The dark underbelly of that trade is a rise in global demand for ancient art and artifacts. This demand drives the phenomenon of looting and theft in the present day, particularly in war zones and countries with unstable governments. Countries that have been ravaged by war such as Iraq and Syria, have seen extensive looting and black-market sales of stolen artifacts. Countries with a rich past of ancient cultural heritage and archaeological sites, such as Peru, Guatemala, Egypt, Italy, and Greece, to name a few, are also hotspots for the looting of artifacts that make their way on the black market and often end up in private collections, antiquities galleries or museums.

The international community made an concerted effort to protect cultural heritage with the passage of the UNESCO Treaty in 1970. The UNESCO Treaty calls upon signatories to cooperate to prevent trafficking in items that are part of a nation’s cultural heritage and participating countries are required to pass laws to combat trafficking and to assist countries desiring to recover lost cultural property.

The UNESCO treaty was an important milestone, nonetheless, the reality is that each country has its own legal system with different legal requirements and capabilities for dealing with art crime. In the United States, for example, a country whose Constitution provides for strong protections and respect for private property, it is not so straightforward for the government to seize stolen art. First, the burden is on law enforcement to prove that art is stolen or imported into the country illegally, something which is not as simple as it appears at first glance. By its nature, the black market of the art trade is elusive and difficult to trace. So for example, if a collector possesses some ancient roman antiquities and Italy claims they were illegally looted, the collector might be able to fall back on the provenance of the artifact provided by the gallery where he purchased it; and that gallery might have a “receipt,” of a different collector where it required the artifact, or perhaps it was donated to a museum prior to that, and so on. In other words, often, unless the trafficking of artifacts is stopped in the act, or there is an inside tip on the illicit nature, means, and time of acquisition of the trafficked art, it is extremely difficult to seize art and stop the looting and theft in the first place.

This is where whistleblowing laws and awards could provide a major boost to efforts to prevent and uncover stolen art and antiquities. Whistleblowers who have inside information on the illegal acquisition or trafficking of art can provide tips to authorities and help thwart illicit trafficking in instances where under normal circumstances it would have been very difficult to stop beforehand and almost impossible to prove after the fact. Awards and protections provided to bona fide whistleblowers could provide incentives to help tip the balance against the illicit art market.

Currently, the US legal system has a variety of laws and tools to combat stolen art. There is a Civil action of replevinn where a property owner (even perhaps a foreign country), can go to court and claim that it is the true owner of the art. However, in the instance of a foreign country, to prevail in a civil replevin action, it must convince the court that the item was stolen and that the country is the true owner. Without a lot of corresponding evidence, that is often difficult to prove. It can be difficult for a country to convince a court that the country itself is “legally” the owner; and also, to definitively show that the item came from within its territorial borders.

Under criminal law, the United States government can try to seize stolen cultural patrimony and seek criminal charges against a person accused of dealing in stolen cultural property under the National Stolen Property Act. However, in order to prosecute an individual(s) for dealing in stolen property, the government must again determine the true owner of the art or antiquities, and without corresponding evidence showing the item was looted or stolen, it can be difficult to establish a true owner of antiquities. Foreign countries which claim to be the owners of cultural patrimony must pass certain legal hurdles in order for US courts to recognize the foreign countries’ national patrimony laws which grant them ownership.

Under US Export restrictions, the US government (under the Cultural Property Implementation Act) can enter into special bilateral agreements with foreign counties (for example with a country like Italy or Peru). These special bilateral agreements, called Memorandum of Understandings (MOU’s) allow the US to enforce export restrictions requested by foreign countries and therefore bar importation into the US of certain property such as art and antiquities, irrespective of proving whether it legally belongs to the state.

Under the MOUs, the US customs authorities can seize items that are on a prohibited export list, unless they are accompanied by an export license. Even with these MOU’s and export restrictions - the difficulty is that they are only effective if the illicit art is actually detected and captured at the border in the first place - if a cultural patrimony item is not captured on the border in the act of illicit exportation, then the burden is on the US government to prove an item illegally entered the US if it later wants to seize it. With the massive amounts of goods and articles that enter through the US borders, it is extremely difficult to detect all cases of illegally imported art.

Whistleblower Provisions Could be an Excellent Tool in Combatting Art Crime

All these means of combatting Art crime would be greatly assisted by whistleblower provisions that encourage those with inside information to come forward to and assist investigations. There is currently no whistleblower law that applies directly to the issue of art crime and illicit trafficking of stolen art. There are, however, some whistleblower laws that can indirectly apply to combatting the illicit art trade.

The False Claims Act is a law that allows the government to prosecute those who submit false claims to fraudulently receive government money. It is the main law for prosecuting fraud. The false claims act also has a whistleblower provision that allows a whistleblower to receive an award of between 15-30 % of the money recovered in successful government enforcement. A typical false claims act case could be the government prosecuting fraudulent requests for payments in the health care field, such as when someone submits a false claim to the government for services rendered to government programs such as Medicaid. The False Claims Act also applies to export and import regulations and controls; that if there is an instance where one makes false claims involving importing and exporting of goods in order to avoid tariffs, fees, quotas, or other duties or restrictions on the goods.

The fact that the False Claims Act applies to export controls provides a legal framework where a whistleblower can provide information on the illegal importing of stolen art or antiquities. If an importer were to provide false information (such as false documents giving incorrect information about the authenticity or origin of the art), that would be a basis for a claim under the false claims act. A whistleblower who provided information leading to enforcement against fraudulent imports would be entitled to an award.

Other areas where whistleblower rewards are applicable are in the field of tax fraud enforcement and anti-money laundering enforcement. The IRS and Treasury department have whistleblower programs that provide rewards to whistleblowers who provide inside information that leads to enforcement and recovery in tax fraud matters and money laundering crimes, respectively. A possible scenario where this could apply to Art Crime would be in an instance, for example, where a collector has knowingly acquired stolen antiquities or artwork. The collector could money launder the stolen art by donating it to a museum and falsifying the documents to show legal ownership. In return for the donation, the collector could receive a large tax deduction, while simultaneously “laundering” its artwork and giving it a veneer of legitimacy since it was accepted by a museum. A whistleblower who provides inside information in instances of tax fraud or money laundering that led to enforcement and recovery by the government would be entitled to a port of the money recorded.

Although there are potential legal frameworks where whistleblower provisions could indirectly be used in the field of art crime, it would be a strong policy statement and a direct effective action against illicit art trafficking, if the US were to adopt a statute that provides for a specific whistleblower program to combat art crime.

Pass Similar Laws and Provisions To Wildlife Trafficking

In the area of wildlife trafficking, there are several laws that provide whistleblower provisions. In the last few years, an additional bill was proposed in Congress - the Wildlife Conservation & Anti-Trafficking Act as introduced in 2018 and reintroduced in 2021. It is still pending. The legislation is aimed at increasing efforts to catch and prosecute all those involved in the global trade of illegal wildlife, including poachers, traffickers, and buyers.

The National Whistleblower Center, a non-profit dedicated to the issue of whistleblowing, has established a Global Wildlife Whistleblower Program. They have established “a secure worldwide web-based platform” that helps educate whistleblowers and provides a platform for providing confidential and anonymous whistleblowing information and reports concerning wildlife crime.

The program also educates whistleblowers on their rights and protections, helps connect them with law firms that can assist them through the process, as well as educates them on the monetary rewards they may be entitled to under U.S. wildlife protection laws.

The global effort to combat Illicit Art trafficking would benefit from a similar Whistleblower Program such as provided by the National Whistleblower Center, and law similar to the Wildlife Conservation & Anti-Trafficking Act, which also provides for whistleblower provisions.


In summary, whistleblowing is a valuable tool used to fight against illegal activity and fraud in general, and it can potentially be an important tool in the fight against the illicit art trade. Looting of antiquities and art, and the black market for illicit art is something that is difficult for law enforcement or the legal art market to uncover or prevent; The legal art trade is a large, billion-dollar market, but in many ways, it is also a small circle. Rewarding whistleblowers to expose art crime within that market could be a very effective way to fight illegal trafficking in such a market where contacts, connections, and reputations are very tightly preserved.

There is no single “silver bullet” solution to a problem like illicit Art trafficking and art crime (or any type of crime). It takes a multi-faceted, diverse approach on many levels - for example, on the legal level through punishment and prevention, on the economic level, and on the social level as well. Whistleblowing is one additional and potentially very effective tool, in the fight against art crime. In order for Whistleblowing to truly fulfill and maximize its potential as a tool of art crime detection and punishment, there needs to be greater public awareness and education that it exists as an option in the first place.

Educating the public about the problem of Art Trafficking and educating the public about the existence of Whistleblower provisions will encourage more people to expose these crimes and will create a measure of deterrence within the illicit art market and among the art-trafficking criminals themselves. Perhaps most importantly, education about the whistleblower programs will also generate increased interest and awareness among the relevant government agencies, and the general public, about art crime in general, and the vital importance of protecting cultural patrimony for all involved individuals, peoples, nations, and humanity as a whole.