Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.
Washington and Lee Law Review - Technology
Note
by Andrew Robert Klimek
This Note argues that the Racketeer Influenced and Corrupt Organizations Act (RICO) may be suited to cryptocurrency prosecutions. RICO subsection 1962(a) addresses the infiltration of an enterprise by investing proceeds from racketeering activities and this Note contends that a cryptocurrency network could serve as the “enterprise” required by the statute. Instead of having to investigate and prove the relationships in an underlying criminal enterprise, proponents of a RICO case against crypto-criminals could rely on well-documented and publicly available information about the cryptocurrency network to prove the enterprise and the relationships among its members. If accepted by courts, prosecutors and plaintiffs could proceed under investing subsection with assurances that the “enterprise” element of the statute would be satisfied. In addition to punishing criminals, this proposed method would also benefit legitimate cryptocurrency users by discouraging criminals from infiltrating legitimate cryptocurrency businesses.
In order to provide some background, this Note will first summarize the history of cryptocurrencies and RICO. Next, this Note will explore the elements of a RICO claim and the current methods of prosecuting cryptocurrency criminals. The discussion will turn to how cryptocurrency networks could be used to satisfy the enterprise element of the RICO statute. This Note will then examine some potential criticisms of cryptocurrencies as a RICO enterprise. The discussion will conclude with some thoughts regarding the prudence of cryptocurrency prosecutions under RICO and what type of cryptocurrency cases should be prosecuted under RICO. In essence, this Note argues that prosecutors should be able to demonstrate that a criminal using cryptocurrencies has infiltrated an enterprise in violation of RICO, but should exercise restraint unless the criminal is engaging in criminal activities on the scale of traditional organized crime.
This Note received the 2019 Roy L. Steinheimer Law Review Award.
Article
by Michael L. Rustad & Elif Kavusturan
Software licensing and software-as-a-service contracts are innovative in their streamlining of products, as well as in their contracting practices, done in both a legislative and common law void. The dearth of case law and the legislative void leaves both software providers and customers with no guidance on contract law issues on software licensing and cloud computing. Since the 1980s, software is at the core of most modern organizations, most products and most services. Part II of this Article examines how the U.C.C. evolved as the primary source of law for the first generation of computer contracts during the mainframe computer era. Part III examines how courts have overextended U.C.C. Article 2, as the main source of law for software licensing, to the limits. Part IV argues that the ALI and the NCCUSL should propose a new Article 2B for software licensing. Part V recommends a new Article 2C for “software as a service.”
