Academic journal article Rutgers Computer & Technology Law Journal

Dismantling the Internet Mafia: RICO's Applicability to Cyber Crime

Academic journal article Rutgers Computer & Technology Law Journal

Dismantling the Internet Mafia: RICO's Applicability to Cyber Crime

Article excerpt

I. INTRODUCTION II. THE DEVELOPMENT OF THE RICO ACT        A. The Origins of the RICO Act        B. The Construction of the RICO Act        C. RICO in Action III. THE EMERGENCE OF CYBER CRIME IV. RICO ACT AND CYBER CRIME: OBSTACLES AND        SOLUTIONS        A. Morrison Limitations on RICO Jurisdiction        B. Misapplication of Morrison to RICO            1. Congressional Intent of RICO            2. Dodd-Frank Act        C. CFAA as a RICO Predicate V. CONCLUSION 

I. INTRODUCTION

In 1970, the United States Congress enacted the Racketeering Influenced and Corrupt Organizations Act ("RICO") to facilitate prosecution aimed at destroying the mafia. (1) RICO provides both criminal and civil causes of action against parties involved in racketeering. (2) After reaching its pinnacle in combating the mafia throughout the 1980s and 1990s, the number of civil RICO claims filed by private parties against legitimate corporate entities grew exponentially. (3) The growth of private actions, in association with antitrust cases, has caused RICO's potential to combat modern organized crime to be forgotten.

There are billions of dollars of illicit profits made annually since the advent of cyber crime. (4) The potential profits and the anonymity that the Internet provides has attracted traditional organized criminal syndicates to online ventures. (5) Additionally, cyberspace has spawned a new type of criminal that specializes purely in crimes committed via the Internet. They profit through identity theft, fraud, and even cyber bank heists. (6) The cyber crime epidemic is so severe that the White House National Security Council believes it to be a national security priority because it "threatens sensitive corporate and government computer networks[] and undermines worldwide confidence in the international financial system." (7)

Recently, Microsoft used an innovative approach to the civil RICO statute by applying it to cyber crime. (8) Additionally, an individual was convicted for the first time ever under criminal RICO charges in relation to organized cyber crime. (9) After successful utilization of the RICO statute in the United States District Courts to target Internet crimes, there exists precedent in which the courts recognize organized criminal cyber activities as mechanisms advancing a criminal "enterprise" as defined under RICO. (10) The RICO statute has the potential to protect private businesses from the growing onslaught of illegal Internet schemes, as well as assist law enforcement in prosecuting criminal cyber syndicates. However, RICO's applicability to cyber crime is novel and several roadblocks must be addressed in order to best utilize the statute.

Cyber crime is extremely transnational in nature. (11) Frequently, criminals in one country use web-hosting devices located in a second country to reach victims across the world. After the 2010 Supreme Court ruling in Morrison v. National Australia Bank, civil RICO cases with numerous foreign parties or substantial racketeering activities that occurred overseas are determined to be outside the jurisdiction of the United States courts. (12) Since the RICO statute is silent as to extraterritoriality, the Morrison ruling has the potential to obstruct prosecutions of cyber criminals abroad. (13)

Congress enacted RICO over four decades ago, covering particular crimes that were frequently committed by traditional organized criminal syndicates at that time. However, organized criminals evolve and adapt to best take advantage of opportunities that present themselves. Cyber crime is committed through a different medium than previous crimes, and the enumerated violations of racketeering in the RICO Act do not cover the current varying degree of crimes being committed globally via the web. Members of Congress recognize that RICO has the potential to fight cyber crime, but Congress has not succeeded in passing new legislation to better facilitate RICO's applicability. …

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