January 01, 2018

Can Blockchain Technology Disrupt the Trade in Illicit Antiquities?

By Derek Fincham

The international trade in antiquities carries works of art from their nations of origin to markets and museums all over the world. Unfortunately, it relies far too often on secrecy, because demand for these ancient objects outpaces supply. Nearly every nation has attempted to restrict the movement of these objects through sensible legal restrictions, but these laws often serve to incentivize the black market in these objects because there are very few legal and ethical means for objects to enter this supply chain. In far too many cases, those cultural objects that do reach the market have been stolen or even looted from their archaeological context. War, poverty, and the remoteness of many archaeological sites make safeguarding them difficult.

Prominent auction houses like Sotheby’s and Christie’s seldom hold title to the objects they auction; instead, they act only as intermediaries. There are also no requirements that buyers or sellers reveal their identity. As a result, the market has often been exploited by antiquities looters, traffickers, and dealers who are often unconcerned with the damage their purchases do to our overall understanding of ancient cultures. Some museums have done the same thing by offering to accept temporary loans of material so as to avoid unwanted attention about how the antiquities were acquired. It is an open secret in the ancient art and museum community that many objects displayed with limited or no history carry a very good chance of having been looted from the site where they originally rested for hundreds of years, or even having been stolen from an antiquities storehouse. America’s cultural institutions deserve better. Museums and auction houses are eroding the understanding of our past with lax regulation and inattention to the consequences of supplying the art market with undocumented merchantable antiquities, and as a result museums and collectors in the United States have historically acquired far too much stolen and illicit material.

When archaeologists study an ancient site, they use scientific principles and techniques to record the context of an object. The layers of archaeology help to date ancient objects and recreate our past; unfortunately, this scientific knowledge has not been valued by the market.1 Instead, too many actors in the antiquities trade seek marketable objects that are coveted by antiquities buyers, regardless of their origin.2 Sadly, the market prizes these ancient objects for their connection to our shared past, doing far too little to promote scholarship and scientific advancement.3

One troubling example can be seen in the latest scandal to beset the Metropolitan Museum of Art (Met) in New York. It involves an investigation by Matthew Bogdanos, a New York City deputy district attorney, into the illegal antiquities trade. In July 2017, prosecutors initiated the seizure of a marble sculpture that was on loan to the museum.4 The sculpture had been on loan to the museum since 2010 and had been displayed in the gallery with other objects from ancient Greece and Rome. The object was an ancient 2,300-year-old marble sculpture of a bull’s head from Sidon, Lebanon, that originally had been discovered at the Temple of Eshmun by a French archaeologist named Maurice Dunand as part of a legitimate archaeological excavation (1963–1975). Eshmun was the Phoenician god of healing, and the temple was a crossroads of different cultures from the Mediterranean, including the Phoenicians, the ancient Greeks, Romans, and early Christians. After the archaeological excavation, the head and other artifacts from the temple were then transferred to a storage area in Beirut for safekeeping during the Lebanese Civil War in 1979. In 1981, this storage depot was raided, and as many as 600 sculptures and architectural fragments were stolen and illegally removed from Lebanon.5

In a revealing 68-page application for a warrant, the Manhattan District Attorney’s Office alleged that the ancient statue had passed through the hands of many well-known antiquities dealers and collectors. As the warrant alleged, during the period of 1981 until 2004, this singular classical era antiquity, despite its “movement across international borders” and value exceeding $1 million, only “generated four handwritten words, a couple storage invoices, and one piece of paper from the [now] infamous Robin Symes. A neon sign flashing ‘stolen’ would have been more subtle and less insidious.6 The warrant alleged that in 1996, the statue had been included in a shipment of antiquities by a London dealer named Robin Symes. Symes was a prominent antiquities dealer who frequently handled illicit antiquities.7 Symes has since served a short prison sentence for contempt of court in 2005 and declared bankruptcy, and his cache of antiquities has presented a massive headache for English authorities, who have to make the difficult decision whether to sell his art collection to satisfy his considerable tax debt owed to the Crown.

In 1996, before his downfall, Symes sold the bull’s head sculpture to Lynda and William Beierwaltes for $1.2 million. The Beierwaltes displayed the object in their dining room, which appeared in a photo shoot of the Beierwaltes’ collection in House and Garden. At this point, the path of this bull’s head statue originated in the theft from the storehouse during the Lebanese Civil War, passed through the disreputable dealer Symes, and ultimately surfaced in the collection of the Beierwaltes. Yet the statue also passed through another antiquities gallery that has been subject to scrutiny. In 2005, the Beierwaltes approached antiquities seller Phoenix Ancient Art about appraising their collection. That gallery, operated by Hicham and Ali Aboutaam, has also had a history of dealing in antiquities alleged to have been illicit.8 The Aboutaams appraised the bull’s head statue at $1.5 million, and as a part of this discussion requested a search for the object in the Art Loss Register’s database. The Art Loss Register is a private company that catalogues works of art. However, the registry has been criticized for reporting clean searches of objects of antiquity that are later shown to have been looted or stolen. Because an antiquity may not be catalogued or even known widely, its chances of being reported to the Art Loss Register are extremely low, meaning a clean search of an antiquity with the service means little.

In 2008, the Art Loss Register issued a certificate for the object, which shows how lacking a single database can be if it is not comprehensive. Later in 2008, the Aboutaams through Phoenix Ancient Art published an image of the statue in a catalogue to publicize the display of the object at the 24th Biennale des Antiquaires at the Grand Palais in Paris. The display attracted the attention of buyers, and in 2009 Michael Steinhardt expressed interest in the object and ended up purchasing the statue for $700,000 from Phoenix Ancient Art. In 2010, Steinhardt through Phoenix Ancient Art loaned the statue to the Met. While on display at the Met, the only reference to the history of the bull’s head was the limited: “Ex-American private collection, collected in 1980’s–1990’s.” In 2014, Carlos Picón, the curator of the Met’s Greek and Roman collection at the time, made a connection that the statue on loan from Steinhardt was the very same head that was missing from the material excavated from Eshmun.

The object was not returned to Lebanon; instead, it was removed from display, and Phoenix Ancient Art was notified. In 2014, the Beierwaltes bought the statue back from Steinhardt for $560,000. In 2016, the general counsel at the Met, Sharon Cott, notified Steinhardt that the museum was going to notify Lebanese authorities about the stolen statue. In December 2016, then director of the Met Thomas Campbell notified Lebanon that the statue was likely stolen during the Lebanese Civil War. In January 2017, Sarkis Khoury, the Lebanese directorate general of antiquities, made a formal request for the return of the statue. Later in June 2017, rather than return the stolen statue, the Beierwaltes filed a lawsuit against the Republic of Lebanon and the Manhattan District Attorney’s Office, though this lawsuit was eventually dropped, reportedly because the couple was shown evidence that the statue had been stolen. This case illustrates how stolen objects can still enter the gallery of what should be one of the world’s great repositories of culture—the Met.

The corruption at the heart of the international trade in antiquities touches otherwise reputable and successful individuals and institutions. Michael Steinhardt (introduced above) made a fortune in finance, allowing him to amass billions in wealth. He also collects antiquities, and in the past has had to surrender possession of various antiquities that he had acquired but were shown to be illicit. These included an ancient Greek phiale (a golden plate with fine detail) likely from Sicily,9 as well as a fresco fragment from an Etruscan tomb near Paestum in current-day Italy.10 The phiale likely surfaced in 1980, and dates from the fourth century BCE. It was imported into the United States from Switzerland in 1991. In 1995, the Italian government declared the work stolen under its national ownership laws and requested its return. The U.S. government took up this request for mutual legal assistance and seized the work from Steinhardt’s residence. In the subsequent civil forfeiture proceeding, the New York federal district court ruled that the work had been illegally imported because the shipping agent had wrongly declared two pieces of information to U.S. Customs: first, incorrectly stating that the work’s country of origin was Switzerland, when in fact it had likely been looted from Italy; and second, incorrectly listing the purchase price. The phiale was purchased for $1.2 million, not the $250,000 that was listed on the declaration. The Second Circuit affirmed that the object had been illegally imported, and thus was subject to forfeiture because of these misrepresentations.11

Had Steinhardt or his shipping agent been honest on that customs declaration, and stated that he had purchased a very valuable phiale, which had likely originated in Sicily, for a large sum of money, that may have attracted more attention from customs agents. At the time, the United States had not yet erected import restrictions with respect to material from Italy. With a more transparent market where nations maintain a register of import and export, these misrepresentations on the part of importers of cultural objects would be more likely to arouse the suspicion of U.S. Customs and Border Protection.12

These examples reveal a glimpse of a massive problem caused by a paucity of industry self-regulation and instances of regulatory successes on the part of government officials. The cup of coffee and muffin we order at the corner coffee shop has a far more extensive paper trail and history than do the priceless remains of ancient civilizations. That lack of transparency exists by design! Opening this trade up to more scrutiny and requiring that buyers and sellers of antiquities disclose more information is one way to ensure that objects that have been looted or stolen do not pollute the legitimate art trade. Scandals will plague any institution or individuals purchasing recently surfaced antiquities, whether they be like the Beierwaltes or the Green family and the Hobby Lobby–sponsored Museum of the Bible, which has reportedly acquired thousands of fake or looted antiquities from war-torn Iraq and Syria.13

A better option than those currently available would be a more comprehensive database of antiquities. Property lawyers are of course familiar with title searches and registration for real property. Such a comprehensive system does not exist for antiquities, even though the value of an antiquity that is portable can often surpass six figures. Efforts are underway to attempt to incentivize the market to conduct more rigorous procedures for examining the history of works of art when they are bought and sold. One notable example, ARIS Title Insurance, is attempting to use title insurance to remedy deficiencies in provenance research when works of art are purchased. But antiquities present more difficult problems than typical works of art. There exist no records for recently surfaced antiquities, because they have been embedded in their archaeology for centuries.

One potential remedy for the antiquities trade would be to look to blockchain networks, which use as a model the digital currency Bitcoin.14 These networks use a distributed, encrypted database to record information. The data is public, easily verifiable, and extremely difficult if not impossible to forge or corrupt. The blocks of data are stored in identical versions across a network, which means this blockchain cannot be controlled by any single entity and has no single weak point. The technology has many potential applications: for the financial markets; for contracts, which can be edited by multiple users simultaneously; to an online auction, which allows many different users access to objects for sale; and (for this discussion) to generating secure information about objects unearthed by archaeological excavations. If archaeologists and nations of origin were able to use blockchain to record basic object identification data, such a comprehensive system if widely utilized would render any matching object unmarketable, and could deeply disrupt the market in stolen antiquities.

Objects of antiquity are the record of our collective past. When excavated scientifically, they can offer knowledge about our past and can recreate history. As indicted above, this scientific information is unfortunately not valued by the international antiquities market, which supplies objects of beauty and interest to museums and auction houses in the world’s largest cities. When these objects are brought to the United States, the states and local prosecutors and customs agents are forced to do what the market itself is unable or unwilling to do—inquire into the history of these objects. Collectors who buy antiquities are destroying our past when they refuse to look at the deep history of these objects. Perhaps technology like blockchain can make it easier for the art market to police itself. At the very least, the technology offers archaeologists a way to document the objects from scientific excavations. Perhaps new technology can be adapted to secure the protection of the world’s ancient past. u

Endnotes

1. Maxwell L. Anderson, Antiquities: What Everyone Needs to Know (2016).

2. Simon Mackenzie & Donna Yates, Collectors on Illicit Collecting: Higher Loyalties and Other Techniques of Neutralization in the Unlawful Collecting of Rare and Precious Orchids and Antiquities, 20 Theoretical Criminology 340 (2016).

3. Derek Fincham, The Distinctiveness of Property and Heritage, 115 Penn St. L. Rev. 641 (2011).

4. Tom Mashberg, Met Museum Turns Over Another Relic with Disputed Past to Prosecutors, N.Y. Times, Aug. 1, 2017, https://www.nytimes.com/2017/08/01/arts/design/met-museum-relic-lebanon.html.

5. Lina G. Tahan, Trafficked Lebanese Antiquities: Can They Be Repatriated from European Museums?, 5 J.E. Mediterranean Archaeology & Heritage Stud. 27 (2017).

6. In re Application for a Warrant to Search the Metropolitan Museum of Art at 44 (N.Y. Sup. Ct. Sept. 22, 2017) (emphasis added), https://assets.documentcloud.org/documents/4059759/2017-09-22-Application-for-Turnover-Order.pdf.

7. These include a polychrome limestone sculpture of two griffins attacking a fallen doe, which in all likelihood had been looted from an ancient tomb near Ascoli Satriano in Italy in the mid-1970s. The sculpture ultimately ended up in the collection of the Getty Museum, but it was returned by that museum in 2007 along with a collection of other looted objects.

8. Benoit Faucon & Georgi Kantchev, Prominent Art Family Entangled in ISIS Antiquities-Looting Investigations, Wall St. J., May 31, 2017, https://www.wsj.com/articles/prominent-art-family-entangled-in-investigations-of-looted-antiquities-1496246740.

9. United States v. Antique Platter of Gold, 991 F. Supp. 222 (S.D.N.Y. 1997).

10. United States v. One Triangular Fresco Fragment, No. CV 13-6286 (S.D.N.Y. filed Nov. 13, 2013).

11. United States v. Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999).

12. Christina Luke, U.S. Policy, Cultural Heritage, and U.S. Borders, 19 Int’l J. Cultural Prop. 175 (2012).

13. Derek Fincham, Legal Questions over the Acquisitions by the Museum of the Bible Were Inevitable, Illicit Cultural Prop. (Nov. 5, 2015), http://illicitculturalproperty.com/legal-questions-over-the-acquisitions-by-the-museum-of-the-bible-were-inevitable/.

14. Peter B. Campbell, Archaeology and Blockchain: A Social Science Data Revolution?, Guardian, Oct. 2, 2017, https://www.theguardian.com/science/2017/oct/02/archaeology-and-blockchain-a-social-science-data-revolution.

By Derek Fincham

Derek Fincham, PhD (dfincham@stcl.edu) is a professor at South Texas College of Law Houston. His research interests include art law, heritage theft, antiquities looting, and repatriation. He serves on the editorial board of the International Journal of Cultural Property and writes regularly about art and the law at www.illicitculturalproperty.com.