Actually, people are going to jail for doing it regardless if its impossible to prove or not. We aren't on any jury duty to know exactly what evidence was given to send those people to jail.
For example, what if he sent an email to a buddy that detailed what he was doing and that he "knew" or "understood" it was illegal ?
Simply, I doubt that the only evidence they had was just the program. Some other evidence (e.g. written, recorded phone conversation, attempt to destroy evidence during the investigation or whatever) must have been shown.
For example via a different situation. The justice department didn't have good enough evidence against Martha Stewart until one of her best friends spilled the beans (friend contacted the justice department) and told them what Martha Stewart had said to her. In addition, they discover secret (or they hidden) phone logs and a recorded message about her knowing exactly what she was doing and that she "knew" it was illegal.
That's my point, in the case of Mr. Coscia (convicted), we don't know what evidence was presented to the jury. Just the same, we don't know what evidence is stacked up against Mr. Sarao...
Maybe he confided with a friend, maybe there's recorded phone conversations, maybe he sent emails detailing exactly what he was doing, why he's doing or whatever. Thus, I doubt the only thing they have against these people is just a algorithm.
Regardless, the issue is that the big boys regularly do it and they are outing out the little guy that's doing it too especially those little guys with their algorithms that figure out a way to game the big boys algorithms.
Algorithms against Algorithms...100s of million dollar business
every day and the little guy wants part of the action.
