Tag Archives: Cryptocurrency

5 questions about the environmental impact of crypto-mining

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Originally published on Thomson Reuters Insights by Gina Jurva, with Joseph Raczynski.

Is the act of mining for cryptocurrency damaging to the environment? We asked our resident technologist to assess this emerging landscape

Two hot words in the corporate and financial worlds today seem to be cryptocurrencies and ESG (environmental, social, and corporate governance issues) — yet, are the two intertwined? More specifically, are cryptocurrencies environmentally friendly or are they a global threat to meeting climate targets as articulated at the recent United Nations Conference of the Parties (COP26)?

We spoke to Joseph Raczynski, Thomson Reuters’ resident Technologist & Futurist and early adopter of cryptocurrency, about crypto-mining, the cost to the environment, and its sustainability going forward.

Thomson Reuters Institute: In its most basic terms, what is crypto-mining?

Joseph Raczynski: The traditional act of mining cryptocurrency is driven by heavy computer processing power as processors race to solve a mathematical problem first, so that the sole winner can add a grouping of transactions to the blockchain. For example, a transaction could be one person sending another person money via Bitcoin.

Computer processing power — which you can tangibly feel as your machine gets warm — means the processor is working very hard to do something. The act of mining financially rewards the first computer, or grouping of pooled computers, that solve the mathematical puzzle with that cryptocurrency’s native token. In the Bitcoin example, more than 100,000 nodes (computer groupings) all over the world are competing to win the race, and if they do, they earn 6.25 Bitcoin (valued today around $237,500) for the ability to add the grouping of transactions to the next block on the chain. This happens roughly every 10 minutes.

Joseph Raczynski of Thomson Reuters

Baked into the code is a reduction of the reward over time, and there is a fixed supply of Bitcoin that will ever exist, so the mining becomes likely more difficult over time depending on how many computers are competing at any given moment. This process is called proof of work and is heavily energy intensive; while another form of mining consensus is proof of stake and is far more efficient.

Thomson Reuters Institute: How much does cryptocurrency cost the environment?

Joseph Raczynski: This is a very nuanced and politically divisive topic. Having been in this space since 2011, I can see both sides of the debate, and I believe I can distill its reality. Proof of work is natively inefficient, as it uses lots of electricity to solve that mathematical problem to win the reward. On its face value, this is not environmentally sound.

However, crypto-miners intrinsic interest lies in being as electrically efficient as possible because energy consumption is their principal expense after the hardware investment of fast computers and processors, which are also called mining rigs. Miners seek out the cheapest places in the world to plug their rigs into the electrical grid. They pursue renewables — solar, wind, and hydro power — and have used the blow-off captured from natural gas, which would have been lost or burned as waste.

Although the quest for clean energy is increasingly being sought, not all crypto-miners are doing this. There is little question that proof of work is a cost for the environment, but it is not as catastrophic as some suggest. An intangible effect, of course, is aligning that energy consumption and environmental impact with the benefit that cryptocurrency has created via a vast new industry. The technology has created an internet of value that we will all leverage, so there is a cost benefit that is being struck as well.

Thomson Reuters Institute: Could the impact of crypto-miners be reduced in some way?

Joseph Raczynski: Another fascinating argument about the environmental impact is that crypto-miners are essentially the new intermediary. Be it banking, legal, insurance, supply chain, or most other transactional businesses, each of these enterprises could be replaced with a blockchain. As a result, all of the physical and environmental impacts of those institutions could be negated with a move to blockchain. Think of the electricity used to build and run office buildings, the workers who travel, gas and oil used, materials needed, and all other combinations of energy and environmental impact that any such institution has on the environment — that would be reduced with the underlining technology that would serve its purpose. Ultimately, proof of stake solves this environmental issue, but proof of work is something that will persist, in a decreasing form.

Thomson Reuters Institute: One cryptocurrency, Ethereum, said it wants to reduce its energy use almost 100% this year through transitioning to a proof of stake process. How can cryptocurrencies use proof of stake to be more sustainable?

Joseph Raczynski: There is great news afoot that pretty much solves the electricity issue, and in turn, the environmental problem. The primary blockchains, Ethereum, Solana, Avalanche, Cosmos, along with many others and which are the future of the industry, rely on proof of stake, which itself relies on a different mechanism to confirm and add transactions to the digital ledger. There are many flavors of proof of stake, but if someone wishes to participate as a crypto-miner in this instance, they are not using processing power to win a mathematical race. Instead, each person puts up money, or a stake, to participate. These users are hoping to earn anywhere from 7% to 1,000% on the money that they stake, by locking it into a smart contract that reinforces the resiliency of the network. The incentive is that the more money that people stake, the greater the network effect and security.

Currently, the potential of these high interest rates at are driving tens of billions of dollars into staking. Of those participating, the code dictates who actually gets to save the latest batches of transactions to the blockchain. There is a disincentive if you are a bad actor and try to upend or alter a block, by saving information to the ledger, for example. If you attempt to disrupt the network, you get slashed which means your stake could be confiscated. Proof of stake is expected to reduce the electrical consumption of crypto-mining by well over 99%. Ethereum should be upgraded to this version in 2022, and that alone will reduce the environmental impact.

Thomson Reuters Institute: Does mining and transacting with cryptocurrencies actually contribute to climate change?

Joseph Raczynski: If proof of work continued with Ethereum, which is the most-utilized blockchain in the world, then yes, crypto-mining could have had a negative impact on climate change over time. However, the upgrade to Ethereum 2.0 (ETH2), on a proof of stake model will dramatically change this.

DAO (Decentralized Autonomous Organizations) and Regulation

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Originally published on Cryptos on the Rise.

A DAO (Decentralized Autonomous Organization) is a revolutionary change in the manner that people and businesses can organize.  Leveraging blockchain technology, it is a decentralized model of control and governance.  The essence of a DAO is transparency, clarity of rule, and process driven decisions – primarily utilizing smart contracts on distributed ledgers.  Once a DAO has been established, via a blockchain, participants take ownership of its token, which allow them to participate in the system.  Token holders can propose changes, and can vote on those changes, with the subsequent actions being taken, “leaderlessly”.  There are no CEOs, CFOs, CTOs, only code and community.

Close to 5,000 DAOs have been formed to date, expecting to grow exponentially.  Many involve pooling digital money together to purchase assets, both physical and digital.  ConstitutionDAO was established seven days prior to the auctioning of one of the eleven remaining copies of the US Constitution. The intent, to purchase and house it at a protected public location.  Participants in the DAO contributed money in ETH (Ethereum token) to the cause, raising $45 million.  Separately, the AssangeDAO raise $53 million for the criminal defense of Julian Assange.  These are quick and powerful ways form decentralized autonomous organizations.

Central to a DAO is transparency.  Anyone can see which individual (wallet address) owns tokens.  Tokens allow for people to vote on proposals.  Anyone can create a proposal.  Simply stated, and in an ideal setting, it is egalitarian.  Challenges to the model are its extremely democratic nature, i.e. voting on everything.  As a result, it can be overly deliberate and result in a slower process compared to a more centralized formed organization like a corporation.

With this nascent, but extremely powerful organizational structure, the regulatory landscape at the state level is nearly non-existent.  Wyoming, which has led the US on regulation for blockchain and cryptocurrency, recently codified rules for DAOs residing in the state. Therefore, a DAO could be created under the laws of the State of Wyoming. No other state enables this yet.  Further, there is a movement afoot for corporations in the cryptocurrency space to dissolve and become DAOs.  With potentially hawkish regulation on the horizon for cryptocurrency, DAOs, by their very nature, are code based, self-running, leaderless entities running via a decentralized network, which permits actions based on how users interact under brassbound, predefined rules. Theoretically, under the current regulatory landscape there is nothing the law can do about such an entity. The converted corporation to a DAO would no longer be in control of the platform, which reverts to a completely new decentralized model, unlike anything regulated currently.

According to the SEC guidance issued in 2017, they determined that “The DAO”, an entity raising money in an ICO, Initial Coin Offering, that it was indeed a security.  The difference here is that many of the DAOs created now are under the auspices of “investment clubs” or are simply voting mechanisms, whereby the SEC generally does not regulate, unless met by the “Securities Act of 1933” regulating the offer and sale of those membership interests, or under the Investment Company Act of 1940 (1940 Act), or if a person who is paid for providing advice regarding the investments of the club or its members may be an investment adviser under the Investment Advisers Act of 1940 (Advisers Act) or state law. (SEC, https://www.sec.gov/reportspubs/investor-publications/investorpubsinvclubhtm.html)

The SEC is reportedly looking into true DAOs like Uniswap in the decentralized finance (DeFi) space, as a decentralized exchange (DEX), which is a code-based organization that matches buyers and sellers of cryptocurrency.  One area of focus is lending pools, where users will provide their assets for other users to trade, which provide healthy yields, just as banks provide interest on your assets.  This may fall into the Howey Test investment contract realm. 

DAOs are in their embryonic stage with legislatures and regulators.  There is little question that this space if bursting with potential and therefore creating a framework with regulation is certainly on the horizon. 

The Metaverse is coming: Is the legal market prepared?

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Are you ready for the Metaverse? Probably not, but please bear with me, because the legal implications will be enormous. Open your creative mind first, and at the very end apply your critical thinking legal intellect. Here we go.

Originally published on Thomson Reuters Institute.

Imagine, if you will, a world resembling our physical one, but a completely virtual, immersive, colorful, all-encompassing one with land, rivers, houses, farms, people, animals, full cities, stores, businesses, concerts, and everything else contained in our physical world. Sauntering down a bustling city street, minus the smells, is as easy as walking on a moon that orbits an earthlike place. Platforms with full replication of our physical world are being built through a wearable device to create this Metaverse. Why? That seems a tad ridiculous.

Yet, before the iPhone was launched 14 years ago, we didn’t imagine the myriad of things we could accomplish by simply touching a piece of glass-faced, hand-held technology today. It would have been a leap of faith to see where we sit now. Thus, the Metaverse is that next leap.

Over the next 18 months, following an era of Zoom and Teams virtual meetings on laptops and mobile devices, Apple will be releasing the first mixed or virtual reality headset, allowing for people to interact virtually. Initially the focus will be on new Zoom-like meetings with far more immersive business engagements, but then it gets more profound. Wait for it.

MetaverseConcept of virtual reality glasses

Why now?

The Metaverse, or Web 3.0, is developing, but what led us here? First came layer one: blockchain, an immutable database to store information, in concert with the proliferation of cryptocurrencies, an ability to transfer value akin to currency initially, but later representing all assets. The tokenization of assets is a seminal concept and means that anything physical, or more important in this instance, digital, can be proven and has authority via code on an immutable ledger.

The latest manifestation of this authenticated representation of ownership are NFTs (Non-Fungible Tokens), and their popularity is the slippery slope of the Metaverse. Initially, people are buying digital art. In building out the Metaverse, art will be displayed on the walls of homes. However, the assets, living in smart contracts on the blockchain represent all assets. Homes, offices, land and even designer clothing of this world — legally represented by deeds, contracts, and leases — have been tokenized. This means you can buy digital land, homes, and other objects on a platform like OpenSea, to prove you own it. That value creates a network effect, enabling interactions within an ecosystem, and therefore a new Metaverse (world) is born.

MetraverseDigital land for sale on Decentraland

Indeed, OpenSea is just one of several marketplaces where individuals can buy the future of asset ownership in the Metaverse. All asset ownership, both digitally and physically, could be ported over to an NFT on blockchains. All of these critical pieces are then layered on top of a platform of animation — the actual space inside the headset, which has been with us for many years. It is the asset tokenization that makes this paradigm shift most pivotal. Transactional attorneys should beware, and litigators should feel their eyes widening at the possibilities ahead.

The virtual spaces being developed have cities in which you can buy almost anything. Land, upon which you can build your house, then you can fill that house with pieces of art (via NFT), and wear an outfit that is a verifiable Ralph Lauren suit with Nike shoes. The concert you attend requires a ticket (another NFT), and the subsequent music you want to purchase is also digitally saved and copyright enabled. Again, all of this is purchased from companies with underlining NFT ownership.

These digital worlds will likely be our future in the next decade, and a substantial amount of your time will be inside of these worlds. I know, it’s terrifying. If you are skeptical, however, note that OpenSea processed transactions of more than $3.3 billion in August alone, and this is just the beginning.

In the Metaverse, people will interact, transact, own assets, have relationships, build things and companies, create intellectual property (IP), have copyright issues, and advertise. Further, crimes may happen, insurance likely will be developed, and a massive host of other IRL (In Real Life) concepts that now all now require will evolve — and that will require legal professionals to be involved.

Not to mention the scaling of DeFi (Decentralized Finance), which has already begun and will continue to ramp up. Clearly, this is a burgeoning market. While I have been engaged in this space for several years, a recent white paper from Reed Smith on the Metaverse underlined its importance for the legal industry. It is a worthy read if you wish to continue down the rabbit hole.

What’s next?

What is on the horizon as we move into the Metaverse? DAOs, for one,

DAOs (Decentralized Autonomous Organizations) are entities that have been built by humans. Likely a business initially, but once the code has been written, the code acts as the law and it runs the business autonomously. These DAOs will proliferate both inside, but more importantly for the foreseeable future, outside of the Metaverse. They are already very successful, supporting $25 billion on one DeFi DAO right now. (I will examine the magnitude of DAOs in an upcoming post.)

The implications of the Metaverse for the legal community and within the regulatory community as well as every other facet is enormous. While this space is being built, it is still early. Over the course of the next several years, the Metaverse and all its implications will move from the fringe to a more important arena for lawyers to contemplate and eventually address. Now is time for those lawyers to apply their critical thinking legal intellect.

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

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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

Facebook’s Cryptocurrency Needs to Prove Itself, Expert Says

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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.

Forum Magazine: Blockchain’s Promise – Verifying Value One Block at a Time

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Originally published in Forum Magazine 

by Joseph Raczynski

Blockchain technology is truly transformative, impacting almost every industry. Over the next decade, this technology will significantly transmute the legal landscape as well – a process that has already begun.

Blockchain was initially considered a ridiculous notion – the idea of a digitized ledger beholden to no single owner was derided as unusable. However, the conversion of blockchain from joke to genuine is stark. For example, the top 50 banks in the world have unified in the realization this technology could disrupt the financial industry.

For those newer to blockchain technology, here’s a brief history: In its simplest form, the term “blockchain” refers to a peer-to-peer network of computers running a common software protocol that includes a database replicated on each computer connected to the network, where each user interaction (other than a query) is recorded as a new entry. (Each computer is called a “node,” while the database is often referred to as a “distributed ledger.”)

Further, each blockchain has a mechanism, referred to as a “consensus algorithm,” for ensuring that each copy of the ledger is updated in a consistent manner and is otherwise identical to all other copies of the ledger across the network. Thus, once a transaction has been recorded on the ledger, that record is shared among all the ledger’s users, and generally, it can’t be deleted or overwritten.

Is this technology ushering in an era that creates an undeniable source of truth for contracts and digital identity? How else might it impact how law is practiced and how the legal industry operates?

The Smart Contract

Central to any discussion of blockchain and its legal impact is understanding “smart contracts,” a term that has been around for decades but in this landscape has a specific meaning. A smart contract is a few lines of computer code that creates an “if/then” statement, e.g., if Amazon® stock is at $2,000 on January 1, 2019, then sell it. What is special about smart contracts on the blockchain is that once an agreement has been reached by two parties, it is programmed onto the platform and becomes self-executing and immutable – without any human intervention. For example, Ethereum, the first blockchain platform to popularize the idea of the smart contract, permits people to code “if/then” statements onto the blockchain or into a database with ease, allowing for infinite applications.

Clearly, self-executing legal documents will at some point be the norm. This is one of the most significant efficiencies that we will see in the transactional space.

Forum

Early on, legal industry experts saw that blockchain’s smart contract applications alone had the capability to revolutionize how transactional attorneys practice law, dramatically changing how they interact with documents and clients.

Indeed, it may change the way lawyers view their very function. “These systems embed legal logic, require review by legal counsel and raise unique issues around the proper scope of the lawyer’s review versus the engineer’s,” says Joe Dewey, partner at Holland & Knight. “On an ongoing basis, corporate counsel will need to ensure that the systems are updated when necessary to account for changes in law and company policy.”

The Future with Blockchain in the Legal Profession

Besides the revolution in smart contracts, blockchain is already changing many other aspects within the legal industry, such as:

Cryptocurrency and the Tokenization of Assets – The creation of cryptocurrencies like bitcoin, which use the technology to keep track of ownership and trades, is how most people know blockchain. Digital tokens that represent real value or ownership of other tangible assets has become one of blockchain’s most widely watched developments. With companies and others issuing these tokens via Initial Coin Offerings (ICOs) – raising more than $10 billion thus far this year – attention is being paid.

In the future, we could see all assets represented by these tokens, e.g., a car, house or painting, each a store of value represented by a token and making the transactions of leasing, renting or selling that asset far easier. This will have an impact on how we create and distribute wealth, further impacting the legal industry.

Digital Identity – With the 2017 Equifax breach of 160 million individuals’ private data, our Social Security numbers are nearing the end of their usefulness and a newer identifier may be created to replace them.

Recently at an MIT event, an organization named Sovrin described a new world where each of us will have a digital wallet containing all of our private information, including money, health records, log-ins to websites, birth certificate and driver’s license. Behind all of this information will be blockchain, enabled so there will no longer be a central point of breach where millions of people’s information can be exposed at once.

Legal Industry – Many have predicted that most administrative work now completed by law firms will be replaced with blockchain-enabled solutions – and in more specialized legal matters, such as due diligence, blockchain will have a similar oversized impact. Share ownership tables and company records will be transferred onto blockchain, allowing investors, acquirers and third parties to complete their diligence in less than one hour instead of the typical weeks or months. IPO registration offerings could be processed is less than a week instead of the typical six to nine months.

In a similar vein, Holland & Knight’s Dewey sees a significant change to law firms’ back offices. “When a law firm closes a loan for a bank it needs to send over copies of the executed loan documents and other post-closing deliveries… often, this doesn’t happen,” says Dewey. Blockchain, however, would allow the law firm and the bank to share a common repository and tracking functionality, even if different front-end software solutions are used. “The increased efficiency of such a system would be significant and benefit both the firm and the bank.”

Clearly, blockchain is ripe for disrupting nearly every industry going forward, and the practice of law may feel the impact the most. Still, these are early days. Significant infrastructure must be built, and a great deal of legal guidance will be needed.

If there was ever a time to study blockchain technology and embrace it – and the opportunities it will create – the time for the legal industry is now.

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

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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.

Classification of Cryptocurrency: Coins, Tokens & Securitized Tokens

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Originally published in the Legal Executive Institute. 

By Joseph Raczynski

One of the most contentious debates in the cryptocurrency world surrounds classification of blockchain-based digital assets, tokens and cryptocurrencies. A panel at the recent Thomson Reuters Regulation of Financial Services Conference discussing the basics of cryptocurrenciesexamined this argument. With more than 1,650 cryptocurrencies or tokens trading in the public domain, it is important to understand their nuanced differences.

Cryptocurrency

Dominating this conversation in the United States is whether specific coins are securities, and secondly, if a utility token can exist. In addressing the first part, the US Securities and Exchange Commission (SEC) recently shed some light by declaring both Bitcoin and Ethereum non-securities. This assertion defines that there is no expectation of equity or return on any investment in these virtual currencies. The overarching belief had held that Bitcoin is a currency and thus a competitor to the US Dollar or Euro; and Ethereum is more complicated.

Tokens

The original intent behind Ethereum was that it supported smart contracts by using their blockchain token called Ether or ETH. In this case, a token stands as a digitized tool to perform a service, similar to those physical token coins used in some video game arcades or laundromats. In this digitized version, the Ethereum platform was intended to perform a service and store more complex, automated, yet immutable code on their blockchain (for example, storing a contract on the blockchain that dictates a sell order if the stock of Amazon reaches $2,000 per share on January 1, 2020).

What differentiates Ethereum from Bitcoin is that the token ETH is used to upload and save that smart contract to a blockchain using “gas”, basically the payment of ETH for each transaction. Therefore, many argue that ETH is a “utility token”, performing a service, i.e. saving that contract to the blockchain. What complicates this is that many start-up tech companies are using Initial Coin Offerings (ICOs) on the Ethereum platform to launch crowd-funding campaigns and raising money. The complication — raising money in this form — have some regulators and industry watchers arguing that these ICOs are more like securities, similar to stocks, even if they are sitting atop of the Ethereum token-based platform rather than on a stock exchange.

Tokenized Securities

Now, a hybrid product that is emerging quickly is the tokenized security. Recently at Consensus in New York City, a company called Polymath created a platform for anyone who wishes to raise money for their company quickly can do so by issuing tokenized securities. The primary difference with this model is that the issuer is offering shares or portions of ownership of the company. There is also a belief that these types of securities will eventually adhere to SEC regulation, which is yet to be determined. What drives the regulatory discussion is a 1946 Supreme Court ruling now called the Howey Test, which determine if something is a security or not. The tenets of the Howey Test are as follows:

  1.  It is an investment of money
  2.  There is an expectation of profits from the investment
  3.  The investment of money is in a common enterprise
  4.  Any profit comes from the efforts of a promoter or third party

 

For a token to be considered a security, each of the above must be true. The primary point of contention is around point four, “Any profit comes from the efforts of a promoter or third party”. This aspect is typically out of the hands of the investor and not something they can control. When these tokens are launched on third-party exchanges, this falls outside of that individual investors domain, and for many, nullifies the Howey Test.

Or as Ash Bennington of CoinDesk phrased it:

A long time ago, someone named Howey owned an orange grove.

Howey said: “I’ve got this orange grove and I’ve got no way to make money out of it — because I need money to make money.”

Tell you what. I’m going to sell you this orange grove and, in exchange, you get whatever profits are made from that little plot.

I’ll work the land. I’m going to pick the oranges. I’m going to squeeze the juice. You just pay me the money.

The plaintiffs said: “That’s a security.”

The SEC said: “That’s a security.”

Howey said: ‘No, no. That’s just selling plots of oranges.”

Ultimately, the Supreme Court said: “That’s a security” – because it passed this test: There was an investment of money. And a common enterprise. With the expectation of profit, primarily from the efforts of others.

Governments around the world are grappling with the classification of cryptocurrencies in what should become a multi-trillion-dollar industry within the next decade. With so much at stake for everyone from the garage startups to the Morgan Stanleys of the world, some regulation is inevitable. Most are merely hoping for clarity, not confines, which could hurt the innovation stemming from the once-a-generation revolutionary platform technology called blockchain.

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

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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 Republic; Caitlin 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.