When “Code is Law” meets “Law is Law” — Inside the American Bar Association’s Biggest Blockchain…
A one-day exploration of the legal landscape shaping the Distributed Ledger Technologies ecosystem at this very moment
While Company after company and country after country embrace “Blockchain” technologies —verifiable, secured distributed ledger systems that record cryptocurrency or other value transfer transactions and what some are calling “the biggest disruptor since the internet” — many question how the law will adapt to these systems — or even whether they are even legal at all. And with the growing hype around this movement, many attorneys are scrambling to become familiar with the topic.
On Monday, April 10th, the American Bar Association (“ABA”) gathered some of the most accomplished technical and legal minds from across the nation to discuss the current legal environment surrounding the blockchain ecosystem at the ABA’s 3rd Annual Blockchain Technology and Digital Currency Institute, hosted at the NYU School of Law. This marked the ABA’s most attended blockchain event so far, signifying a rapidly growing interest — and demand — for legal competence in the decentralized ledger space. Five panels of experts offered their understanding of blockchain law on topics ranging from ICOs to Intellectual Property and from Tax Evasion to the Silk Road’s Dred Pirate Roberts.
Panel 1 — “Fireside Chat” with Blockchain’s Most Accomplished Academics
Panelists: Ari Juels — Co-Director: IC3, Cornell University; Neha Narula — Director of Research: Digital Currency Initiative, MIT Media Lab.
Moderator: Patrick Murck — Special Counsel at Cooley LLP, Fellow at Berkman Klein Center for Internet & Society at Harvard.
The morning kicked off with a general discussion on how blockchain will affect society and legal practice over the next few years. Like many in the industry, the panel struggled to give a unified, concise definition of blockchain, but gave insight on how the top groups at the nation’s top universities are approaching the subject.
- “Blockchain” is a terrible term! — The panel agreed the term means different things to different people. To some, blockchain refers to decentralized ledger technologies (“DLTs”) generally; to others, it means the underlying “Proof of Work” structure that incentivizes public participation in networks like Bitcoin or Ethereum; and to others still, it refers to a faultless data set of transactions storage where each new batch of information is cryptographically linked to every batch before it. Ari Juels suggested “business logic automation” would be a much more accurate term, but he conceded that the term“Blockchain” has caught on and probably is not going anywhere for a while.
- Biggest Challenges for Blockchain and Smart Contracts — The panel agreed that the most widely used blockchain systems cannot achieve their fullest potential under current paradigms, identifying five fundamental challenges that the major permissionless/public crypto-currency and smart contract systems (like Bitcoin and Ethereum) must overcome in order to see wide-scale adoption:
- Scalability — Current systems are too slow to support the high throughput needed for international enterprise use. While Bitcoin is attempting to solve this problem through Segwit or unlimited block sizes, its community must still overcome an immensely bitter (and possibly insurmountable) political battle to move forward with a solution. Ethereum, by contrast, is hoping to solve the scalability issue with Proof of Stake Consensus Algorithms, though Ethereum developers still have yet to produce a testable prototype of its new system and the concept still faces a number of theoretical challenges to its security.
- Correctness — Bugs are an inevitable part of programming. A standardized method of auditing and testing (perhaps through template methods) must be developed for general reliance without risk. Further, ambiguous issues (like “intention”) are not clearly programmable, possibly leading to an inefficient system of coded smart contracts and separate legalese documents that must be designed in parallel. The risks of error and incongruity between two contracts guiding the same transactions might make smart contracts less reliable than the traditional contract system paradigm, but attorneys, technologists and businesspeople have yet to create a better solution.
- Confidentiality — Privacy, predictable speeds, and transparency are all necessary for regulatory approval and wide-scale corporate participation. But current systems cannot fit all three features into a single public network. A chain that can process hundreds of thousands of transactions instantly and anonymously with built-in audit trails is sort of a Holy Grail that must be built for mass adoption.
- Off-chain interaction — Smart contracts are only as “smart” as their programming underlying their conditions and the range of data that will trigger those conditions. For example, a rake-free sports betting contract could be triggered to automatically payout a winner based on the final score of a football game. However, there currently is no efficient method for a blockchain to pull data from a sports page in a format that will trigger such a smart contract.
- Reversibility — As mentioned above, bugs are an inherent aspect of programming; no matter how much debugging or code review you perform, there will always be a significant rate of imperfection. While in some cases, parties to a contract can agree to essentially “dump” all of the data and conditions from a flawed contract into an amended version, this solution is not efficient and depends on all parties’ consent — not always guaranteed. Further, transactions enacted through a stolen private key or other illegal method cannot currently be reversed, leaving users that are less prone to personal security vulnerable to never recovering from theft.
Panel 2 — Is Confusing Regulatory Blockchain Oversight Causing the US to Fall Behind the Rest of the World in Development?
Panelists: Mary Beth Buchanan — Partner at Bryan Cave; Reuben Grinberg — Associate at David Polk; Michael Lempres — Chief Legal and Risk Officer at Coinbase; Yvette Valdez — Counsel at Latham & Watkins.
Moderator: Marco Santori — Partner at Cooley LLP, Legal Ambassador for Delaware’s Blockchain Initiative.
This panel appreciated that, although complicated regulation often means more billable hours for attorneys, laws should be sensible and straightforward as to not discourage entrepreneurs afraid of regulatory backlash. As the panel discussed recently rejected Bitcoin ETFs, difficulty in counseling clients considering ICOs, and conflicting power dynamics of state and federal regulators, they (perhaps unsurprisingly) seemed to leave more questions than answers about the state of blockchain regulation.
- Regulatory Nightmare — Panelist Michael Lempres called the current legal environment surrounding blockchain “a regulatory nightmare” — at least three regulatory bodies claim jurisdiction over some form of crypto-assets in ways that sometimes conflict over the same transactions. For example, the SEC relies on half-century-old case law to claim authority over any asset that fails the Howey Test, but fails to provide any clear guidance for how digital assets are assessed under that test. Likewise, the CFTC finds virtual currencies to fall within their jurisdiction over “commodities” under the Commodities Exchange Act. Further, a patchwork of state and federal banking regulators have indicated that virtual asset transfers fall within their authority. The panel indicated that this absence of clear regulatory rules has created an environment stifling blockchain experimentation, pointing to the recent SEC decision rejecting Bitcoin ETFs as evidence of such. Marco Santori summarized that decision as the SEC paradoxically claiming that Bitcoin “is too unregulated to regulate.”
- The US Losing the Blockchain Race — Mary Beth Buchanan was confident “virtual currency is here to stay,” but shared Moody’s concerns that this confusing regulatory framework puts the US at a disadvantage compared to other countries with less burdensome compliance requirements.
- OCC FinTech Charter — The panelists were mostly excited about the possibility of an upcoming “FinTech Charter” issued by the Office of the Comptroller of the Currency (OCC). This charter would declare certain blockchain companies to be “Special Purpose Banks,” thereby superseding state-by-state regulations. However, Michael Lempres noted that until the OCC releases the final document, we cannot be sure whether such a charter would be more or less restrictive than the current system. Reuben Grinberg also noted that applications with the OCC may be cost-prohibitive, ball-parking expenses around $2M, along with a two year approval period.
- Who knows where this is going — The panel closed with each panelists expressing the full spectrum of long-term expectations for blockchain regulations, from Michael Lempres’ “I’ve bet my career and my kids dinners that we’re going to [thrive under upcoming regulations]” to Marco Santori’s “dark and dour” prediction of contracted financial liberties and freedoms in the space.
Panel 3 — Cutting-Edge Innovations and Opportunities
Panelists: Chris Austin — Technology M&A Partner at Orrick, Herrington & Sutcliffe LLP; David Fragale — Director of Strategic Intelligence and Blockchain at PwC; Verun Gupta — Chief Legal Officer at BitFury; Dana Syracuse — Sr. Counsel at Perkins Coie LLP.
Moderator: Rebecca Simmons — Partner at Sullivan & Cromwell LLP.
This segment focused on how innovators and entrepreneurs are using distributed ledger technology to optimize business processes and improve the world. The panel agreed that blockchain is the engine that will drive the FinTech movement, with some panelists suggesting that financial firms should move quickly into restructuring around a technological core competence, or else risk displacement by more dynamic newcomers. Each panelist touched on other industries or services that may undergo blockchain disruption in the future, asserting that distributed ledgers will cause us to re-think the processes behind areas like fraud analysis, supply chain, digital rights management, national security, and even our concept of personal identity. Chris Austin provided perhaps the most apt slogan of the day, when he observed that “[everyone] feels like there’s huge opportunity [in blockchain], but no one knows where it’s going.”
- Developing Nations — David Fragale advocated for blockchain’s potential to help vulnerable populations in a number of ways. He suggested some examples such as how blockchain could be used to provide identification solutions for refugees, to offer reliable banking services to the planet’s 4.5 billion underbanked individuals, or to transmit migrant populations’ money cross-border with less risk than cash. However, he was less optimistic about blockchain development in the western world, where incumbent financial services enforce tremendous barriers to entry for new products with their entrenched econo-political influence, and where consumers lack the psychological friction in using long-entrenched financial products like credit cards and bank accounts.
- More Regulation Concerns — This panel also expressed a negative outlook on the future of regulation. While David Syracuse noted that some movements like New York’s Bitlicense and Delaware’s proposed amendments to its corporate law allowing DLT-enabled stock transactions represent positive steps, regulation is generally backwards-facing and usually only enacted in response to highly unfortunate events—which often create rules that incidentally prohibit development through broad language designed to prevent repeating such an event.
- Venture Capital Treatment— Chris Austin shared his insight on the movement of investors into the space, noting his impression that money tends to flow towards blockchain services that are either technically shielded from oversight or ones capable of “uber model” adoption — i.e., launching under the regulatory radar and forcing regulators to adapt after a commonly-used system is already in place.
Keynote Speaker — How DLTs Could Have Prevented Three of the Largest Accidents in Recent Share Management Legal Actions
Caitlin Long, CEO Symbiont
In a spirited forty-five minute presentation, Caitlin Long outlined how Delaware courts are already recognizing DLTs’ potential to resolve shortcomings of the modern corporate governance system. She identified three specific cases that she believes could expensive litigation could have been avoided were the companies involved using distributed ledgers to issue securities:
- Dole Foods Case —Dole Foods recently discovered that it underestimated its outstanding stock by 12 million shares when it converted back to a private company in 2013. Delaware Vice Chancellor specifically called for blockchain adoption in footnote 1 of his decision to avoid this type of occurrence, which you can read here.
- Dell MBO Case — When Michael Dell performed a leveraged buyout of his own company’s stock, stockholder T.Rowe Price “accidentally” failed to oppose the buyout twice. In that case, some of T.Rowe Price’s negative votes were disqualified because the complicated legacy system in which the Depository Trust Company technically owns all stocks accidentally caused some shares to technically change hands at the relevant time, even though T.Rowe never actually sold them. She asserted that DLTs can replace the Depository Trust Company system, allowing for more efficient voting without this confusing framework of share management that can cause accidental regulatory failure like this.
- Yahoo CEO Vote—In 2008, Yahoo ex-CEO Jerry Yang handily won shareholders’ approval to remain as the company’s key executive with a reported 85% yes-votes. However, one disapproving shareholder noticed that all of total withheld votes nearly equaled its own holding in the company. The votes were re-tabulated and Yahoo discovered that it failed to count one large disapproving shareholder’s shares altogether, and though Yang still maintained his job, he only won with 66% approval. While this miscount did not have any practical effect on the election, Ms. Long suggested that DLT stock management would prevent this type of miscalculation, and could prevent a much more detrimental outcome in the future.
Ms. Long advocated for how the high corporate costs of tracking share certificates and maintaining internal equity ownership ledgers could be cut with DLTs that automatically track movement in digital assets. She also noted how some states reported issues with fraudulent production of share certificates, a problem she believes can be eliminated by states digitally signing securities with private key-authenticated signatures. Any securities attorney who hasn’t heard of Symbiont should look into Caitlin Long’s company’s DLT solutions and think about how they might help prevent similar circumstances for their clients.
Panel 4 — How Does Intellectual Property Rights Empower Blockchain? How Can Blockchain Empower Intellectual Property Rights?
Panelists: Aaron Wright — Founder/Director of Tech Startup Clinic at Cardozo Law School, Author of upcoming Blockchain Law book; Theodore “Ted” Mlynar — Intellectual Property Partner at Hogan Lovells US LLP; Alexander Greenberg — Intellectual Property, Technology and Cybersecurity Counsel at Barclays; Kate Walters — Counsel at R3 CEV.
Moderator: Grant Fondo — Blockchain and Digital Currencies Partner at Goodwin Proctor LLP.
This panel explored intellectual property (“IP”) strategies in the blockchain ecosystem, particularly how blockchain has embraced an open-source mentality up to this point. Some panelists expressed views that core standardization of blockchain protocols and frameworks will be necessary for future scaling, but are optimistic that the current alliance and consortia movements permeating the ecosystem facilitate the industry-wide benefits of commonality. However, the panelists also agreed that bitter patent-trolling and litigation may come once competition crystallizes in the future — particularly, as Alex Greenberg put it, “at the inevitable convergence of banking and technology . . . when banks start becoming Microsoft or when Microsoft starts becoming a bank,” ultimately leading to costly battles by incumbents protecting their positions.
- “Toothless Consortia” — The current consortia system encourages research-sharing and open-sourcing, causing many traditionally tight-lipped firms to publish R&D results under the theory that their blockchain allies might pick it up and find more use cases. But some panelists feared that companies might abuse this system, as consortia agreements often lack enforcement mechanisms to ensure that its members act fairly towards each other. Ted Mlynar noted that some are considering appealing to the FTC or other regulators for enforcement should issues arise, but he also stated that those companies are also hesitant in light of blockchain’s other regulator woes. For now, it is not clear how this will play out.
- Blockchain Intellectual Property Registration and Management — The panel noted there are some exciting projects working on methods of using distributed ledgers to register IP in a uniform format that is internationally enforceable. However, Aaron Wright commented that this will require new IP and other types of treaties to be negotiated. He also implied that this could prompt a reconceptualization of the entire IP system. Mr. Wright concluded by saying that “[such a] vision is great, but the operational steps to get there are still far off.”
- The “Substitution Method” Theory — Alex Greenberg laid out his belief that blockchain is in the “very early stages where we are still working in a substitution method” where DLTS are mostly developed to substitute legacy systems rather than envisioning large-scale shifts of industrial paradigms. He was confident that this will happen eventually, but believes IP law (and, indeed, many other areas of law) will not enter new realms until (and unless) widescale disruption occurs.
Panel 5 — Blockchain and Regulatory Enforcement; How Can Authorities Keep Up with a System Designed by Cryptoanarchists?
Panelists: Eun Young Choi — US Attorney, Southern District of New York; Valerie Szczepanik; Valerie Szczepanik — Head of SEC’s Distributed Ledger Technology Working Group; Bryan Skarlatos — Tax Partner at Kostelanetz & Fink LLP; Brian Klein — Partner at Baker Marquart.
It is no secret that some of blockchain’s encrypted anonymity and privacy features make them ideal for nefarious uses. This panel featured enforcement officers from the SEC and the US Attorney’s office alongside two of the nation’s top defense attorneys in criminal and tax-litigation matters. This combination led to one of the most interesting discussions of the day as the panelists gave insights from sometimes quite diametric perspectives.
- The IRS’ Coinbase John Doe Summons — Bryan Skarlatos provided his view that the ongoing IRS use of a “John Doe Summons” to investigate the trading history of Coinbase users is inappropriate because it is overbroad. For those unfamiliar with the investigation into the personal and financial information of all Coinbase users between 2013–2015 (You can read about this case’s twisting procedural history here or about the requirements for a successful John Doe summons here). While some have questioned whether simply trading Bitcoin can serve as a reasonable basis for believing that users are failing to comply with tax laws, Mr. Skarlatos explained that some courts have given broad authority for John Doe summons to be used essentially as “fishing expeditions” to catch individual perpetrators in a large pool of mostly innocent members. Nonetheless, he believed this mechanism cannot be used to subpoena account activity for all accounts at an entire bank because compliance would be unfairly burdensome and costly to the bank. In his view, the same theory should apply to Coinbase.
- Tax, Generally — For crypto-traders concerned about their taxable activities, Bryan Skarlatos explained that the IRS seems to target exchanges’ activities as this is more efficient and enforceable than tracking individuals’ histories through the entire Bitcoin blockchain. He noted that certain activities can trigger individual IRS investigations, such as storing company assets in Bitcoin and writing them off as Cost of Goods Sold or using Bitcoin to avoid processing fees in off-shore tax-shelter banks. Eun Young Choi noted that she was not aware of any US Attorney criminal investigations into the use of cryptoassets for tax fraud or evasion, though she said that such cases possibly exist. If you are worried, Brian Klein recommended resolving any tax issues with an accountant or tax attorney sooner than later, as penalties (and the headache) can mount after a non-voluntary investigation is launched.
- Penalties for Failure to File — The panel warned of the consequences that many blockchain entities or investors overlook when considering their filing obligations. Bryan Skarlatos warned that crypto-investors utilizing foreign exchanges or wallet must file FBARs, or risk annual cumulative penalties as high as 50% (meaning you can potentially owe 150% of your earnings after three years of failure to file, for example). The panel noted that the crypto-investments probably do not qualify as international financial interests in themselves just because decentralization implies utilizing oversea nodes, but the issue has never been formally settled. Valerie Szcepanik implored exchanges and other broker or banker-type services to follow Anti-Money Laundering rules like Know Your Customer and Suspicious Activity Report (“SAR”) filing requirements because these are the most common ways to trigger SEC scrutiny. She noted that SAR failures accounted for triggering 6% of SEC investigation per year. Brian Klein reiterated that advice, but also voiced his concern that SARs in particular are over-burdensome. He mentioned that over one million SARs forms are filed each year, with most SARs likely to be routine check-the-box and stream of consciousness statements fail to achieve the requirement’s anti-money laundering goals. Valerie Szczepanik seemed to understand this concern, but noted that as long as they are still the law, financial services need to comply.
The daylong event was a promising indication that the legal industry recognizes the need for regulatory evolution to catch up with this revolutionary technology. Some attendees considered how the lack of clear regulatory structures have created a bitter political climate surrounding enforcement over other areas of internet law — for example, the current debate over whether the FTC or the FCC should have authority over net neutrality rules — and pondered whether congress would be wise to create a new regulatory agency specifically dedicated to handling these blockchain-related issues now, before a similar climate has the chance to manifest. To reiterate Chris Austin’s words, there’s a huge opportunity here — but no one knows where it’s going.
About the Author: Jason Civalleri is a law student and MBA-graduate passionate for blockchain and distributed ledger innovation. His first exposure to blockchain was his investment in Bitcoin in 2011, the proceeds from which he used to finance his first year of law school. He built his first “miner” for the Ethereum network in January, 2016, and has since guided start-ups, medium-sized companies, and Fortune 500 firms on how to better understand decentralized systems when contemplating process optimization and surviving disruption. In his free-time, Jason enjoys brewing beer, sailing, and playing with his dog, “Cairo.”
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