Podcast: The Hearing – Houman Shadab, Professor of Law NYLS

From the producers… Bitcoin: bringing FOMO since 2013.

What would your scream sound like if you had dismissed Bitcoin as a joke in your law class in 2013 at $100 dollars – when it sits at $60,000 today? Joe’s guest this week is Houman Shadab, the Director of the Innovation Center for Law and Technology at New York Law School. He’s here to tell us how lawyers can navigate, benefit from and translate today’s new wave of rapid technological advances.

Houman talks us through the greenroom snacks at the US Capitol before he testified – what we really wanted to know. And, in a throwback to Mark Zuckerberg’s uncomfortable testimony before congress (“Sir, we run ads”), he tells Joe about his experience of sitting in front of the US government explaining the implications of various securities laws on hedge funds.

We’re a curious bunch at The Hearing, so we asked Houman to tell us what lawyers and legal students can do to better enable themselves for success. The answer seems to lie in no-code. Houman explains what the heck this is and why it matters to the legal ecosystem. So, get your notepad and digital wallet ready and press play!

Podcast:

Apple Podcasts https://podcasts.apple.com/gb/podcast/ep-86-houman-shadab-new-york-law-school-icme/id1389813956?i=1000541095827

Spotifyhttps://open.spotify.com/episode/44txkHGm3JqLe3EKgewSCd

SoundCloud https://soundcloud.com/user-264672855/the-hearing-episode-86-houman-shadab-new-york-law-school-icme?si=1b56a97e30e5402397fb3bbca4c2b613

The impact of blockchain, cryptocurrencies, and NFTs on the legal industry with Joseph Raczynski

It was a ton of fun recording this podcast with the omniscient and ever engaging Joseph Gartner at the ABA Center for Innovation – (full transparency, I sit on the Council). With Joey’s new role as Director and Counsel, we chatted all things #blockchain#cryptocurrencies, and #NFTs and their impact on the legal industry.  It is fantastic to be a part of a group pushing on #innovation in the legal industry at the ABA with Chair, Don Bivens and the entire Center for Innovation Governing Council.

https://www.buzzsprout.com/1784333/8764341-the-impact-of-blockchain-cryptocurrencies-and-nfts-on-the-legal-industry-with-joseph-raczynski

Podcast: The Hearing – Stevie Ghiassi, Co-founder Legaler and Legaler Aid

Question: What do the Iranian national football team, NFTs, Hotel Rwanda and tennis great, Andy Murray have in common?

Answer: Stevie Ghiassi, Co-founder of Legaler and Legaler Aid. And my guest this week!

In this episode, Stevie chats with me about his unlikely journey from running a chain of souvenir shops to becoming a legal tech entrepreneur. He also talks about the important work that Legaler Aid is doing, and ways in which legal tech and blockchain have helped them pivot after Covid took away traditional fundraising streams.

Yet again we’re seeing innovative ways that cryptocurrency and blockchain are being used, and how they offer real opportunities for the legal industry.

Apple:

https://podcasts.apple.com/us/podcast/ep-78-stevie-ghiassi-legaler/id1389813956?i=1000524478029

Google: https://podcasts.google.com/feed/aHR0cHM6Ly9wb3J0YWwtYXBpLnRoaXNpc2Rpc3RvcnRlZC5jb20veG1sL3RoZS1oZWFyaW5n/episode/aHR0cDovL2F1ZGlvLnRoaXNpc2Rpc3RvcnRlZC5jb20vcmVwb3NpdG9yeS9hdWRpby9lcGlzb2Rlcy9FcDc4X1N0ZXZpZV9HaGlhc3NpX21peGRvd24tMTYyMjgxMTgwNDQ2MjA3MzUyNi1NekkyT1RFdE56VTVNelkxTkRBPS5tcDM?sa=X&ved=0CAUQkfYCahcKEwjAm42r05XxAhUAAAAAHQAAAAAQCg&hl=en

Facebook’s Cryptocurrency Needs to Prove Itself, Expert Says

Published on Lifewire

Written by Michelai Graham – Interview with Joseph Raczynski

Facebook is scaling back its ambitious plans to move into the cryptocurrency sector while users on the platform aren’t showing much confidence in the site’s new addition.

The media giant will likely launch its smaller scale Libra cryptocurrency project as soon as January. Libra was originally supposed to be a new currency backed by fiat money (a currency established as money by the government) and securities (tradable financial assets). Libra will now work as a stable coin, meaning it won’t fluctuate in value as it’s pegged to something like the US dollar or a basket of currencies.

“It was only a matter of time before a private company went down the road of their own cryptocurrency,” Joseph Raczynski, a technologist and futurist for Thomas Reuters told Lifewire in an email. “I was very excited to hear this was going to happen last summer, but skeptical to see how it would transpire.”

What Exactly Is Facebook Trying to Do With Cryptocurrency Anyway?

Cryptocurrency is the private industry’s brand new way to exchange value over the internet, Raczynski said, and Facebook wants to take advantage of that. 

Raczynski has been working with cryptocurrency since the creation of Bitcoin in 2011 and has even created his own cryptocurrencies before. He said the most appealing aspect of cryptocurrency is the security and ease of use. Unfortunately, cryptocurrency is still just an idea of the future for some people, which may be a struggle for Facebook as it plans to launch soon. 

“At its most basic, cryptocurrency is the representation of value on the Internet,” Raczynski explained. “The first stage that people should be cognizant of is that a cryptocurrency will be similar to a digital dollar.”

“It was only a matter of time before a private company went down the road of their own cryptocurrency.”

Facebook plans to launch a single dollar-backed coin, and eventually a wallet called Novi, to send and receive Libra currencies. Digital wallets are encrypted, Raczynski explained, so only the user would have access to it. With Novi, Facebook users can manage their digital coins within Facebook’s apps, including Messenger, WhatsApp, browsers, and other connected apps. With the use of a single currency, Raczynski thinks it will make the barrier to do things much easier to manage.

“Anyone using Facebook around the world could exchange their local currency for the Facebook currency,” he said. “Anything you want to buy, services rendered, or simply exchanging money could happen across the world with a unified Facebook currency.”

Are Facebook Users Ready for Libra? 

With all of the changes to Facebook’s cryptocurrency plans, users may be skeptical of its efficacy, yet the appeal of being able to easily send and receive money digitally may (eventually) trump those doubts. The social media giant is no stranger to discussing privacy, so it better be prepared to talk about its plans to track cryptocurrency usage on its site.

“Facebook is a lightning rod for controversy,” Raczynski said. “What they do or don’t do with users’ personal data and tracking user habits is a constant in the news and most people’s minds. It really is a broadening of what Facebook can do to trace and track habits and data patterns.”

Facebook users are probably already using digital wallets like PayPal and Venmo, and Facebook’s Novi will work similarly to those. What they all have in common is the fact that the platforms own and manage users’ digital wallets. 

https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2Fnovi%2Fvideos%2F859686647872438%2F

In the “real” cryptocurrency world, users have full ownership of their digital wallets, which are protected by private keys—a public address to share with anyone to make transactions with and a private one that shouldn’t be shared and essentially makes the wallet yours. So, while your money would still be yours via Facebook’s digital wallet, you don’t “own” the system it runs on.

Another important aspect to note is that while Libra is slightly more decentralized than a country’s own monetary system, like the US dollar, it’s still centralized around a number of companies serving as validators. While it might be a better system to use, according to Raczynski, it’s still susceptible to hacks because there are relatively small sets of attack points.

Why Is This Important?

This new currency Facebook is creating won’t rely on the government, and will instead be backed by an extensive portfolio of companies, including those in the Libra Association. 

“They have developed a governance where mega companies run computer nodes/servers that verify transactions between people or companies,” Raczynski said. “Now, in concept, this is similar to what Bitcoin established 11 years ago, only Facebook is run by upwards of 100 companies and their servers, rather than tens of thousands of computers which are not influenced by those private companies.”

In the not-too-distant future, Raczynski said, every asset people have will be represented by a cryptocurrency, from cars to real estate and beyond. This reach could also help people around the world who don’t have access to physical banks.

“Anything you want to buy, services rendered, or simply exchanging money could happen across the world with a unified Facebook currency.”

“There are few things that will be as technologically transformative in the world as cryptocurrency over the next ten years,” said Raczynski. “I am most excited about how it has the potential to help the unbanked, and [help] people living in developing countries rise up and take ownership of their own assets and build wealth.”

Despite Raczynski’s confidence in the growth trajectory of cryptocurrency over the next decade, people will have to learn more about crypto to believe using it on Facebook is a real thing, just as online shopping prompted much skepticism across the world when it first became reality. That, however, is on Facebook to prove.

Podcast: The Hearing – Doug Pepe – Partner – Joseph Hage Aaronson LLC

From the producer: You may have watched as Mark Zuckerberg explained the internet to Congress in a way that felt a bit unnecessary. Well, this episode is sort of the opposite of that. Joe Raczynski is joined by legal and mathematical macroeconomics genius Doug Pepe, to take us through blockchain, tokens and cryptocurrency in a way that’s genuinely enlightening.

The legal industry is sometimes accused of not keeping up, but we know that’s not true. Lawyers are occupying this space now. Their clients are very active and they have a crucial role to play in the serious policy issues being debated.

Doug, a partner at Joseph Hage Aaronson, started his blockchain journey by building gaming computers with his young children, and then teaching them how to mine bitcoin. Fast forward and Doug is now an expert on blockchain privacy, smart contracts and digital identity.

Apple: https://podcasts.apple.com/us/podcast/ep-68-doug-pepe-jha/id1389813956?i=1000503066806

Google/Android: https://podcasts.google.com/feed/aHR0cHM6Ly9wb3J0YWwtYXBpLnRoaXNpc2Rpc3RvcnRlZC5jb20veG1sL3RoZS1oZWFyaW5n/episode/aHR0cDovL2F1ZGlvLnRoaXNpc2Rpc3RvcnRlZC5jb20vcmVwb3NpdG9yeS9hdWRpby9lcGlzb2Rlcy9FcDY4X0RvdWdfUGVwZV9taXhkb3duLTE2MDgzMDQxMDgzMzgzNDc3MDctTXpFMk9UVXROelF6TVRNME16WT0ubXAz?sa=X&ved=0CAUQkfYCahcKEwjo-ObCpN_tAhUAAAAAHQAAAAAQAw

Find out more at tr.com/TheHearing

Will COVID-19 Make Cash Obsolete?

Originally published on the Legal Executive Institute.

By Gina Jurva – Joseph Raczynski

Is the COVID-19 pandemic more quickly moving the world to a cashless society? One where almost all financial transactions are not conducted with physical banknotes or coins, but rather through the transfer of digital information via a smartphone?

Thomson Reuters technologist and futurist Joe Raczynski explains why cash may no longer be king and how the fear of banknotes carrying and passing the coronavirus itself may help get us there more immediately.

Legal Executive Institute: The World Health Organization (WHO) recently indicated that washing your hands after handling money, especially if handling or eating food, is a “good hygiene practice” but they stopped short of issuing any formal warnings. How can technology help guide this conversation?

Joe Raczynski: Sooner than we thought, we will be moving away from the possibility of literal dirty money, meaning legal cash tender. Believe it or not, the United States was on the cusp of issuing a digital dollar on at the end of March. As part of the early draft for the COVID-19 stimulus package, bold and powerful policy makers vied for the creation of a Digital Dollar.

Having presented on this topic for the last four years, I was ecstatic to see this development. The concept was to have the US Department of Treasury issue FedAccounts to everyone in the country. Normally, FedAccounts are only issued to qualified banks.

In essence, these accounts would create digital wallets for everyone. Once released, stimulus money could be sent directly to each person in moments. Ultimately, the concerns around logistics and privacy became too significant a barrier, but clearly it is only a matter of time before we have a digital wallet issued by the US government.

Legal Executive Institute: China has taken measures to sanitize their cash. Is this really a path forward for global payment systems?

Joe Raczynski: Yes and no. Multiple news reports claimed that China was burning their paper currency to prevent passing bank notes infected with the virus. Based on the scientific evidence for how long the virus can stay on surfaces, it is logical to reduce the risk by avoiding paper or metal currency.

Fortunately, China had already transitioned to a nearly cashless society. With AliPay and WeChat Pay, nearly everyone in China is using QR Codes to exchange money digitally in person and through digital wallets online. From what I understand, payments via these two platforms make up roughly 80% of all payments in China. That’s huge! The next step will be the People’s Bank of China issuing a Digital Currency Electronic Payment (DCEP) sometime in the next six months. More than likely this will utilize the benefits of blockchain technology — immutable, secure, and transparent.

cash

This last benefit is potentially problematic for the Chinese people. When their digital currency is used, China will have direct insight into the finances of everyone in the country, and beyond, as China’s plan is to roll this out globally, especially in Asia and Africa. The Chinese government has stated that this will help them fend off money laundering, as suspicious transactions can be immediately audited and examined with ease.

Legal Executive Institute: Prior to COVID-19, how close were we to moving to contactless payments?

Joe Raczynski: Most countries in Europe and Asia currently have available some sort of contactless payment system. In the UK and the rest of Europe, the popular payment method is hovering your debit or credit card over the terminal and the payment is processed immediately. They have been doing this for years. The US is just beginning to use the contactless card payment system. Apple Pay, Samsung Pay, Android Pay, all have been around for years now, and are popular with a younger demographic.

With the virus outbreak, more establishments have been pushing for these transactions, which still use banks and credit card processers like Visa, Mastercard, and American Express.

Legal Executive Institute: How feasible it is for retailers use contactless payments as a primary payment method?

Joe Raczynski: We are at a point where most, if not all transactions could be contactless. Many startups, semi-casual restaurants, and small businesses aim to only use contactless payments — for example, like Square does.

Similarly, individuals transacting with others can send money to each other via private bank enabling systems like Zelle, Venmo, Apple Pay, or Google Pay. Clearly credit cards and virtual gift cards have been popular with online merchants for years.

The primary setback for pure contactless and credit card transactions are the unbanked — US adults who do not have a checking, savings, or money market account. According to the Federal Reserve, about 6% of US adults fall into this category.

Legal Executive Institute: Are mobile payments the answer?

Joe Raczynski: Unequivocally yes! Most semi-modern mobile devices have the capability to add credit or debit cards by mapping them to your mobile app payment system of choice. This is a partial solution, for those with access to the banking system, which is the majority in the US. However, to cover all, the idea of the Digital Dollar in a government-issued wallet would be ideal.

Legal Executive Institute: In the US, major mobile payments apps had adoption rates of less than 10%, according to the Pew Research Center. What are the major hurdles for adopting mobile payments as a primary payment method?

Joe Raczynski: While smartphone use is at roughly 81%, according to Pew, the primary hurdle for contactless payment in the US is actually habit. We are accustomed to swiping cards or inserting them into a device for chip reading.

Education is also key — many people are unaware they can hover their card over a payment terminal to do the transaction. (Look for the wireless symbol on your card to see if this is feasible.) Clearly migrating to app-based transaction on your smartphone will grow in popularity too. And with the pandemic, the push to contactless payments is a given.

Legal Executive Institute: What might payments look like in the future, and how can we protect against fraudulent activity?

Joe Raczynski: I honestly believe some dramatic shifts are about to take place with our primary forms of money. With the advent of blockchain technology, there will be a fission between state-sponsored fiat money and privately-run currencies. The philosophical and theoretical concerns, challenges, and opportunities are innumerous, but not insurmountable.

Facebook’s Libra project, for example, is an effort by a private company to issue a global currency. The idea is to create a permissioned blockchain where a set number of trusted participants (100 or so) control the rules and define total circulation of the coin. While Libra has met with significant headwinds, this is very likely our future, in some incarnation. Facebook, or more likely, a large private company outside of the US will succeed here. If Facebook perseveres, it could create a global currency usable by half the world population overnight, which is extremely powerful, albeit a bit threatening to sovereign nations.

What will be fascinating to watch is the push by governments around the world to issue their own digital currency in the next few years to counter the private company coins. According to the International Monetary Fund, 50 countries are now exploring issuing their own digital currency.

The major dilemma for state-sponsored digital money, however, is the question of whether they pursue blind payments or clear payments. That means, will they allow people to use the digital currency like paper currency by concealing private information through cryptography? Or will they wander down the Chinese model and make it all traceable by the government, which would certainly help curtail nefarious transactions but could ebb civil liberties.

The 4th Annual Government Day: The Reality and Skepticism of Innovation and Blockchain

Originally published on the Legal Executive Institute

By Joseph Raczynski

WASHINGTON, D.C. — The Government sector strives to ramp up its efforts to more widely integrate cutting edge technologies like blockchain, artificial intelligence, and the Internet of Things (IoT), it is running into a myriad of challenges.

Not the least among them, is separating the reality from the hype of these miracle tech solutions.

At Thomson Reuters 4th Annual Government Day, panel attempted this separation by focusing on blockchain, working to uncover the reality of this technology today for governments and cut out the hype of this innovative technology.

Government supply chain management

One area the panel focused on with blockchain is the tech’s potential to change supply chain management, offering a scenario in which a state or federal agency needs to identify the ground zero genesis of a fruit or vegetable foodborne illnesses. The newest proof of concepts utilizes a blockchain-enabled IoT supply chain management technology ecosystem that can save lives by greatly reducing the time it takes to track contaminated tomato from the salad bar back though delivery, distributers, wholesalers, to pickers and finally to the farm.

The panel also discussed how a Massachusetts-based farmer could partner with a technologist to track his tomatoes from vine to fork. The farmer uses IoT temperature gages from the pickers to the platers. This is an example of a public and private partnership where produce with clear data on temperature, handlers, and distributers can be audited through the entire supply chain, all supported on a distributed ledger.

Harnessing this collection of technologies, any listeria outbreak can reduce seven days of research to just seven minutes, ensuring that the U.S. Food and Drug Administration (FDA) have rapid response and control.

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Sovereign identity

Another area the panel discussed included identity management solutions. Breeches to our own private information are commonplace. In fact, recently Facebook suffered yet another attack where 200 million users’ phone numbers were found in a publicly facing open database, including the number of Facebook CEO Mark Zuckerberg. (In case you are wondering, calling Mr. Zuckerberg’s phone number goes to a generic voicemail.)

Not surprisingly given the stakes, various federal agencies have been surveilling this space for some time. An emerging concept about how to prevent such breaches and other identity security mishaps in the future is taking form.

The panel also took up the “radical” idea that the U.S. Department of Homeland Security (DHS) could issue a new unique identifier to replace a citizen’s Social Security Number (SSN). In a major shift, this identifier would exist on a blockchain. This decentralize system would place the control of the identifying number into the hands of the individual, removing a central repository, which could be hacked.

Panelist Alan Cohn, a partner at Steptoe & Johnson, pointed out how this could more securely enable our current voting system, curtailing the chance of fraud and make voting easier for all.

Digital assets

Finally, the panel explored the shifting landscape of digital assets. Cohn said he expects a huge swing in the way we look at assets from a personal perspective and in how the government views it.

The panel concluded that with Facebook launching its own cryptocurrency, Libra, this process has been legitimized. The discussion amped up around what will happen next. I suggested to the panel that Libra could be dead in the water in the United States because of a heightened regulatory concern, but this blockchain-enabled asset cannot be placed back into the bottle. Indeed, with years of consternation ahead from regulators on Libra, companies around the globe will move forward, and the next organization to create what amounts to a world currency will be a messenger app which has 500 million users, Telegram. (Expect its launch before Halloween 2019.)

In all likelihood, governments around the world will be spooked by the immense power an app founded in 2013 will create. They will have a scalable, frictionless asset with features that could bypass anti-money laundering (AML) rules and Know Your Customer (KYC) regulations.

Panel moderator Jason Thomas, Manager of Innovation at Thomson Reuters, and panelist Gail Gottehrer, of the Law Office of Gail Gottehrer, noted that there is significant promise ahead with the intermixing of multiple technologies in combination with blockchain. Indeed, governments are beginning to adopt and adapt in this environment; and with a push from the private sector, state and federal agencies will continue to adjust.

The synthesis of technologies like IoT, AI, and blockchain will create processes which should stamp out farm- and distribution-based foodborne illnesses. New initiatives around the security of personally identifiable information through blockchain will place the control of information into an individual’s hands, removing central points of failure and reducing costly and damaging data breaches.

Lastly, one of the most significant changes ahead is the look and feel of our ownership of assets when everything becomes digital. The opportunity is immense, but so are the concerns around our government’s ability to counter AML as assets become increasingly liquid and frictionless across the globe.

Risk Management in the Cryptosphere: A Talk with Gibson Dunn’s Judith Alison Lee

Originally published in the Legal Executive Institute 

By Joseph Raczynski

Cryptocurrencies and its underlying blockchain technology is upending the traditional paradigm for financial institutions and regulators around risk management. This disruption includes unique challenges around identity association and verification in the cryptosphere, specifically around decentralized exchanges, applications (DApps), and identities. We discussed these topics with Judith Alison Lee, a partner at Gibson Dunn & Crutcher, who advises on issues relating to virtual and digital currencies, blockchain technologies, and distributed cryptoledgers.

Judith, what are the legal challenges in identity-linking and verification in the cryptosphere?

Judith Alison Lee: Given the pseudonymous nature of cryptocurrencies, there needs to be a framework — most likely at the exchange level — to identify the individuals that transact in cryptocurrencies. Most exchanges do collect and attempt to verify customer identifying information; however, depending on the exchange, the information collection and verification may not be robust, and customers may engage in various location- or identity-masking services that pose challenges.

Additionally, there may be jurisdictional challenges regarding privacy laws and the transfer of identifying information. Finally, as we are seeing more and more decentralized platforms supporting peer-to-peer transactions, linking customer identity to particular transactions will likely become more difficult.

How are regulators starting to deal with identity and blockchain?

Regulators are requiring licensing or registration for money transmitter licenses at both the federal and state levels, which requires such entities to comply with Know your Customer and anti-money laundering (KYC/AML) requirements and is one way regulators are addressing identity.


blockchain

Judith Alison Lee of Gibson Dunn & Crutcher

Given the pseudonymous nature of cryptocurrencies, there needs to be a framework — most likely at the exchange level — to identify the individuals that transact in cryptocurrencies.

 


It gets a bit more complicated when we start to talk about linking participants to particular transactions, particularly since the transactions in spot-market cryptocurrencies are not regulated in the same way as transactions in securities or derivatives. As a result, regulators have focused on fraud and manipulation in those markets and have relied on asking the exchanges for transaction-level information, including any identifying information they have collected.

With regard to KYC/AML, terrorist financing, and anonymous transactions, what does the legal landscape look like and how are states or the federal government handling this currently or planning to in the future? 

At the federal level in the US, entities that exchange cryptocurrency may be required to register as money services businesses, while at the state level, many (but not all) states require them to obtain a money transmitter or equivalent license. Both the states and federal government have been involved in enforcement actions to protect against fraudsters in the cryptocurrency space.

In the future, we will have to wait and see if the next Congress will issue legislation on cryptocurrencies.

Is there a way to utilize blockchain for customer due diligence?

It certainly seems that there is a role for blockchain in customer due diligence. The permanent and transparent nature of the blockchain makes it a logical tool to streamline the KYC process. The blockchain would likely be a good way for regulators to have a single source of data and access to the latest information. However, it seems unlikely that a blockchain solution could be utilized for all customer due diligence — though it could certain help to simplify it, particularly for financial institutions.

Clearly, these are the embryonic stages of regulation and oversight for identity management and verification in the crypto space. As adoption of these token rise, global banks and government agencies will further adapt under this decentralized technology-driven revolution.

Podcast: The Hearing With Kevin Poulter & Joseph Raczynski – Future Legal

Episode 2 of THE HEARING is now live!

In episode 2 of The Hearing Podcast Kevin Poulter speaks to futurist Joseph Raczynski on #legaltech #AI #blockchain and the future of the robot lawyer.

Listen now and subscribe to #thehearingpodcast on:

iTunes – https://tmsnrt.rs/2swyzmz

Spotify – https://tmsnrt.rs/2kOOpVw

SoundCloud – https://tmsnrt.rs/2Js4deI

Harvard Business School Panel: How Should ICOs and Cryptocurrencies Be Governed?

Originally published in the Legal Executive Institute

by Joseph Raczynski

BOSTON — Recently I moderated a session at Harvard Business School surrounding its first annual Business, Regulation and Technology of Blockchain Conference. It was held in conjunction with the MIT China Innovation & Entrepreneurship Fund and the Harvard Law Entrepreneurship Project’s Blockchain Initiative.

Before a crowd of 175 attendees — comprised mostly of members of the legal and financial cryptocurrency communities, and MBA and law students — the panel focused on the governance of cryptocurrencies in 2018. The panel experts consisted of Kendrick Nguyen, CEO of crowdfunding platform RepublicCaitlin Long, self-described blockchain enthusiast and former Chair and President of Symbiont; and Anil Advani, Managing Partner of Inventus Law.

The Difference between a Utility Token and a Security

In pushing to help people understand the Initial Coin Offering (ICO) market, I posed the most hotly debated question in the crypto community: What is the difference between a Utility Token and a Security?

Advani jumped into the conversation by discussing how Jay Clayton, the Chairman of the Securities and Exchange Commission (SEC), defines the distinction, “If you are running a laundromat it is a utility, but if you are raising capital that is a security.” Advani went on to explain, if the token is designed to serve as a prepaid service, or it allows you to access a company’s service, e.g. a loyalty points system, it is a token. However, if you are simply trying to use an ICO to raise capital, that is a security and hence subject to SEC regulation.

HBS-Raczynski

Nguyen agreed, speculating that he “expect to see this space to be litigated in court” and added that he hopes “that a lot more tokens will be determined to be utility tokens rather than securities.”

Long emphasized that it may take some time for regulators to sort this out, but companies need to be cautious in the meantime. “Most of the cryptocurrency platforms are not functional yet,” she noted. “So the token currently is not exchangeable for a good or service until that platform is built.” Therefore, these tokens need to be locked up until the companies are operational and not sold until they are ready, she explained, adding that if a company sold its tokens sold ahead of being functional, those tokens could well could be considered a security.

A Token Can Change its Stripes

As this topic is of paramount interest to a $500 billion cryptocurrency industry, the panelists continued the conversation, noting several recent developments. Long described a recent interaction she had with SEC Chairman Clayton. “A token can change it stripes,” Long mentioned, outlining the two stages of a company’s build. In the first phase, because there is no product the tokens are likely considered Security tokens; however, once the platform is running, and the tokens can be exchanged for goods or services, they could be converted to a Utility Token. The key, Long said, is not to “market it as an investment.”

Finally, one of the points noted by Advani was that “Chairman Clayton’s off-remarks during events are similar to Trumps tweets.” It is creating a lack of clarity in this market, thus leading to confusion and consternation, he said.

Privacy Tokens & Taxes

Some of the cryptocurrencies listed among the 1,600 currently available are completely anonymous. I posed the question about its impact on anti-money laundering (AML) rules and the market. Advani is concerned about the ability to track these sorts of assets and said it raises a deep level of concern about how any government would be able to account for this.

Another question that I presented to the panel was on taxes, prompting Long to respond: “This is clear as mud.” There is very little guidance on how to tax hard forks of a cryptocurrency and mining operations, for example, and Long went on to say that this will require legislation to help understand the various facets of the new tokenized society and tax.

While the panel covered a wide spectrum of the impact of regulation on cryptocurrencies, the primary theme that emerged is that though there are glimmers of definition from various agencies in the United States, considerable guidance is still necessary for people to better understand how to invest, create new companies, and work with cryptocurrency.