Christopher Lloyd
88 Geo. Wash. L. Rev. 204
The 21st century has seen tremendous advances in financial technology, many of which the American legal system is just beginning to understand. One technological development, the cryptocurrency known as “Bitcoin,” holds the potential to both democratize access to capital and facilitate transactions without the need for a central actor. Unfortunately, Bitcoin can just as easily be used for nefarious activities such as money laundering, terrorist financing, and other financial crimes. As Bitcoin has become more mainstream, federal authorities have enjoyed some success applying existing laws—including the Bank Secrecy Act—to the Bitcoin ecosystem and cryptocurrency exchanges that facilitate the buying and selling of Bitcoin. Following the Supreme Court’s recent and revolutionary decision in Carpenter v. United States— which establishes a new framework for evaluating privacy in the digital age— however, the Bank Secrecy Act’s constitutionality as applied to Bitcoin may be in jeopardy. This Note explores the impact Carpenter may have on the Bank Secrecy Act in the context of Bitcoin and what Congress can do to resolve that uncertainty. Because there is a significant possibility that Carpenter’s reasoning may be extended to protect certain data on the Bitcoin network, this Note urges Congress to amend the Bank Secrecy Act to lessen the chance that a constitutional challenge against the Act will be successful. In modifying the Bank Secrecy Act, Congress can bolster privacy protections while simultaneously retaining law enforcement’s ability to use the statute to combat the types of financial crimes the law was designed to stop.
