- In addition to practical obstacles, blockchain systems are bumping into many legal ones as well, mostly in areas like securities, commodities, data privacy, and gaming.
- There is going to be friction between the new and the old as Blockchain systems become more mainstream, but that's likely with any introduction of promising new technologies.
It’s hard to deny the promise of blockchain. The Ethereum protocol gave us the toolkit necessary to begin reinventing the way we interact with each other as peers, as well as the way we interact with businesses in commercial relationships. It seems like everyday I wake up and read about a novel use case or decentralized application seeking to blaze a new path forward or innovate off a legacy system.
As a lawyer for ConsenSys , and bystander to the blistering pace of development across the industry, I engage in daily grappling between the promise and greatness of our collective ideas and the way these ideas might come to life in a world governed by laws written long before Satoshi Nakamoto constructed the genesis block of the Bitcoin blockchain and set the wheels of decentralization firmly on their path.
It is simply incorrect to say decentralized applications, or use cases of the blockchain, are incompatible with legacy legal constructs. Instead, I simply view there to be friction between the new and the old that more often than not accompanies the introduction of promising new technologies. As Dax Hansen of Perkins Coie, a leading practitioner in the space, recently told me, the goal is to figure out what areas of the law you are likely to “bump up against.” It just so happens that one of the industry’s most promising and intriguing use cases, tokens, bumps firmly into nearly a century of securities law and regulation; in particular, a 70-year-old case involving some orange trees in Florida and its progeny.
How we progress and mature as a technology and industry will in no small part depend on how we react when we bump up against laws that may not be easy to apply.
That’s why ConsenSys is proud to be a contributor to Coinbase’s recently released Blockchain Token Securities Law Framework. The Framework is the product of deep thinking by some of the industry’s brightest legal minds trying to analyze the friction between the nearly three-quarter century old Florida orange grove precedent (SEC v. Howey Co.) and token launches. The Framework is a must-read for all industry participants.
Is the Framework perfect or absolute? It would be incredible hubris to think so. Instead, the Framework exhibits excellent execution of the aforementioned mental grappling over how we apply legacy legal constructs to a new phenomenon. The document is exemplary and demonstrates the best qualities of our industry, specifically the persistent search for answers and comfort in a legal system where final answers are almost exclusively handed down by the judiciary.
For nearly every occasion blockchain technology bumps into law, the technology provides the law an equivalent boost. Take for example the Know Your Customer and Anti-Money Laundering laws. Exorbitant amounts are spent every year by institutions attempting to comply with these robust and challenging requirements. Current KYC/AML systems add tremendous friction to commerce and jeopardize sensitive personal information. It’s for this reason that I am excited about uPort, a blockchain based identity platform that will offer us a crucial access point to the emerging decentralized Web 3.0.
Enron gave us Sarbanes-Oxley, the greater than 30,000-word regulatory framework designed to prevent crippling accounting fraud by trusted corporations. Balanc3 will give us a seamless triple-entry accounting system designed to prevent such fraud from occurring in far fewer than 30,000 words of code. When a business’s transactions are non-repudiable and logged in a global shared ledger, it makes it impossible to improperly manipulate the past.
When you wake up with an idea, it’s important to take a moment to ask the question: What areas of the law might this bump into or boost? If you don’t know the answer to the former, take time to consult a legal professional.
The most popular (but not exhaustive) areas of law I often see blockchain systems bump into are securities, commodities, data privacy, money transmission and gaming. If you are designing an ecosystem that features a token, the Framework is a wealth of information to help guide you in your architecture. I will probably never convince all of you that lawyers can be an accelerant, but I promise you that’s not just self-promotion. Thinking about the legal issues early on in your development, be it for a token ecosystem or decentralized application, will enable you to get products to market quickly while minimizing personal, corporate, and ecosystem risks.
I am certain that decentralized applications and their features are no less compatible with existing legal constructs than prior revolutionary technologies were. However, compatibility may require thinking long and hard about how laws written before the dawn of decentralization can harmonize with such a powerful disruptive force.
Matt is responsible for overseeing legal at ConsenSys while empowering the organization to build and deliver more revolutionary products to the ecosystem.