This guide to Bitcoin, Blockchain, distributed ledger tech, and digital currencies is taken from a collection of presentations, comments, speeches we’ve made at global conferences and articles written by us from 2012 to 2015.
The dangers of being in the Bitcoin space early on
I’ve been in the Bitcoin space since 2012 and writing about it since that time, mostly in respect of its financial crime risks and benefits since that is my area of legal expertise. When I first started talking and writing about Bitcoin and the Blockchain in 2012, there were few lawyers in the space. I confess I loved Bitcoin from the get-go because while I could see its financial crime risks, I could also see its benefits for financial crime mitigation. However, in 2012 and into 2013, it was not a popular thing to publicly say that Bitcoin presented dangers to the financial system among certain of its supporters.
To wit, in 2013, shortly after I was quoted in Forbes Magazine commenting on the money laundering and terrorist financing risks of Bticoin, I received this Tweet (anonymized below) that Christine Duhaime needs killing.
I was a little freaked out but later learned from Elite Daily in New York City while they were filming a documentary about people who were early entrants in the space, that other people in Bitcoin had been threatened for suggesting that Bitcoin be regulated. It comes with the territory, it seems.
My view has always been that it’s better to be transparent about digital currencies if we want regulators to embrace the technology, including to be honest about the ways it which the wallet holders can be rendered anonymous by mixers and tumbler services that, for a fee, tumble each Bitcoin financial transaction thousands of times to make it impossible to identify the transactors and how there are some digital currency exchanges that won’t spent $1 to implement systems required by law to stop terrorist financing or sanctioned transactions that imperil us all.
More than anything over the years, people have asked me what Bitcoin and Blockchain are and why they are worth it from a law perspective. So, below is a collection of things I’ve written about Bitcoin since 2012 that answers the question from a law and law enforcement view of: “Why Bitcoin?”
What is it exactly, this Blockchain or distributed ledger?
Consumer payments and ways of transferring value in Canada and globally have shifted over the last several decades from paper-based media, such as cash and cheques, to card-based media such as credit and debit cards, electronic methods such as pre-authorized payments through ACH, and more recently, digital methods such as digital currencies.
A digital currency is a digital form of a monetary instrument with a bidirectional flow, meaning it allows users to both buy and sell, or use, the digital currency. Bitcoin is the most popular digital currency. Bitcoin operates peer-to-peer and machine-to-machine (M2M). Unlike traditional fiat currencies that are issued by national governments and controlled by central banks, Bitcoin has no central monetary authority and is not backed by any central bank, authority or government. The supply of Bitcoin is not controlled by any central governmental authority, and it is not yet legal tender.
Users can buy digital currencies in person, at an ATM or online with real monetary instruments and can subsequently use digital currencies to buy goods and services globally or to transfer value. The purchase and selling price of digital currencies is determined by supply and demand in the digital currency market.
Trust me — “Because its trustless, its trustworthy”
The transactions for goods and services bought or sold using digital currencies are not processed through a centralized authority, or clearing house. A Bitcoin transaction is processed through the Blockchain, which acts similar to a third party clearing house except that the clearing (or reconciliation and verification of transactions) component is entirely M2M on the Blockchain (i.e., direct).
Cryptographic software validates each transaction through a process referred to as mining where participants compete to make records by solving computationally complex cryptographic problems. In the transactional validation process, transactions are time-stamped via a hash algorithm which creates an ongoing chain, and a decentralized digital and permanent record (the ledger) that theoretically cannot be altered or eliminated. A proof-of-work concept records the transactions chronologically and publicly. The shared public distributed ledger is the Blockchain. The Blockchain, by design, prevents anyone from double-spending, and therefore using digital currencies they do not own.
Although it may appear an oxymoron to say so, financial transactions on any distributed ledger tech, including the Blockchain, are designed to be trustless and therefore they are trustworthy. What I mean by that is that it is designed with a lack of trust in respect of all its users (me, you and the system), which makes the system trustworthy.
Not everyone in the space agrees on this point, however, if you read the White Paper from Satoshi Nakamoto on the technology of Bitcoin, it appears evident that part of what he was attempting to accomplish was to facilitate online gambling, and Bitcoin makes sense to those of us in the online gambling space, more than any other space.
By contrast, other online currencies or payment systems, such as bank credit cards are indirectly settled – they involve a central administrator or financial institution middleman that sits between the transacting parties. These intermediaries validate and reconcile transactions to avoid double spending by a person. In other words, there is a human involved. Digital currency transactions on the Blockchain rely on computer software to perform that function, cutting out the institutional go-between in financial transactions, and no human is involved.
As a result of the Blockchain, it is possible to buy currency, shop for goods or services and remit value internationally almost instantaneously, purely M2M without the need for institutional middlemen.
Ethereum & Smart Contracts
Canadians created distributed ledger technology early on. It’s true – Canadian talent, including law firms, were involved in the space early on when few in the mainstream world knew what a Bitcoin was and many more were disparaging the technology.
For example, Ethereum is a distributed ledger company that was created in Toronto. It moved to Switzerland when Canada announced the world’s first regulation of digital currencies. Its digital currency is called Ether. It is a distributed ledger that is programmable by users. Etherium promotes something called “smart contracts” which are not actually contracts or smart contracts. They are escrow payments that are, in essence, arrangements established purely by computer coding. The theory behind it is that a contracting party will buy Ether through Etherium and pre-pay certain Ether into a wallet and have it programmed to be held in escrow. Upon the fulfillment of the relevant legal condition precedent under the contract between the parties, the payment held in escrow on the distributed ledger is automatically released to a contracting party as a matter of computer coding.
The Ethereum distributed ledger is also often mischaracterized as able to “enforce legal contracts” or the so-called smart contracts. However, it does the opposite – these smart contract complete the payment terms of a contract voluntarily by pre-agreement of the parties and performs no enforcement function whatsoever.
Ethereum is very novel and cool tech but it cannot create legal contracts or contracts that are enforceable on the distributed ledger – what it can do is much more simple – its tech can be used for escrow payments in Ether that are auto-released to an Ethereum wallet, irrespective of the existence of a contract between parties.
I think the potential more cool applications of smart contracts include the possibility of creating invoices that automatically execute a payment when a shipment arrives or the issuance of dividends which are automatically paid to shareholders if corporate profits reach a certain level. Imagine the articles of incorporation with dividend rights whereby declarations of dividends are auto paid by smart contracts – how cool is that?
Cool Law Enforcement Uses
Independent of traditional uses of digital currencies, there are a much broader set of potential applications for Blockchain beyond the payments industry which are significant. As noted earlier, a distributed ledger operates as an online ledger where all the validated transactions that are processed through it are recorded, linked, and can be traced.
In some respects, the distributed ledger is like a public searchable database of all of a bank’s transaction records for every financial transaction ever completed by a customer. If a person’s wallet address is known, anyone can view the history of their financial transactions. In my view, as a financial crime legal expert, if wallet addresses were eventually not anonymous, the Blockchain and distributed ledger technology would be the world’s most perfect counter-terrorist financing and anti-money laundering tool for law enforcement because its unique features mean that it is a permanent depository of evidence, in the legal sense. If you are a lawyer and work in the space of foreign asset recovery and tracing proceeds of crime through the financial system, like I do, you will get what I mean by the benefits of having a permanent bank of evidence for financial crime.
Read here for the financial crime risks of digital currencies.
Cool Law Purposes
There are other legal applications of distributed ledgers and the Blockchain. It allows for the permanent recording of certain records in circumstances where it may be commercially expedient to do so, such as to record the date of issuance of stock options and other securities-related transactions. It has applications as well in cases where it is legally expedient to record certain legal information or triggering dates, such as notice periods, limitation periods, warranty periods, or the commencement of options to exercise certain legal rights. Such application are not yet legal in the sense that no court of law or judicial or legal body has vetted or approved such use as legally relevant, let alone legally binding upon any third party or government agency.
Distributed ledgers and the Blockchain can revolutionize not only the banking sector, but equally the role of law enforcement, financial transactional reporting, and the practice of law and the administration of justice by virtue of what I call the “permanent bank of evidence.”
Vision for the Future
This is what I believe are the promises of the tech for humanity and relevant to the practice of law:
- A reduction in terrorist financing if transactions were operated through a distributed ledger system by virtue of the permanent evidence of transactions on the distributed ledger and Blockchain that can be used simultaneously and cooperatively by law enforcement agencies globally;
- Elimination of some forms of fraud because of the impossibility of double spending using distributed ledger and the Blockchain for financial transactions that could save billions in many areas from environmental fraud arising from the carbon credit trading systems, securities-law related fraud and bribery payments to politically exposed persons;
- Elimination of bank corruption in developing countries, for example in places like Vietnam, where we have seen citizens that are required to pay bank employees bribes, in addition to bank fees, for the privilege of using the banking system to remove or deposit money into their bank accounts or cash pay cheques;
- An inexpensive remittance system that can service millions of poor and unbanked populations, mostly in Africa and Asia, that allows them to receive value from relatives abroad to keep their families alive, and allows more fortunate Canadians to send value directly to them;
- Empowerment, and sometimes the survival, of marginalized or undocumented sectors of the population who are denied financial services because they live in refugee camps in destitution or live on the street with no government issued ID to set up bank accounts. We have seen this first hand in Jordan and Turkey;
- Financial freedom for women, especially those who are denied banking services because of social, political, economic or geographical circumstances, for example, because they live in repressive societies where women cannot receive banking services or are victims of human trafficking whose ID is confiscated by traffickers;
- Ability to quickly and easily transfer value to hundreds of thousands of volunteers who work with international aid organizations around the world in times of crisis when traditional financial institutions are shut down (or destroyed) such as during a terrorist attack, a tsunami, or an earthquake. This is a serious concern that is ever present in the counter-terrorism field; and
- To provide financial inclusion to First Nations across Canada who are unbanked because they lack permanent residences (are homeless or live in halfway houses) to set up bank accounts or there are no bank branches within proximity to them. I have pro bono clients who face this daily.
Obviously, the case studies above to advance humanity or law and justice are unique to my experiences as a financial crime lawyer but nonetheless they present real problems that one day could be solved with distributed ledger tech and digital currencies.
@2012 -2017, Christine Duhaime.