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cryptocurrency Bitcoin is a good idea?


Paul Bohm
Paul BohmWorked on digital currencies since the 90s.
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Bitcoins reside in a legal grey area within the United States

Corey Recvlohe

Corey Recvloheearly adopter

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Bitcoins reside in a legal grey area within the United States. Many of the laws on the books that apply to currencies cannot apply to bitcoin, but there are questions as to whether it may be designated as a security, and hence could be regulated as such. 

If you look at one of the recent cases involving the Liberty Dollar, a department of Justice statement on the matter said the following, "It is a violation of federal law … to create private coin or currency systems to compete with the official coinage and currency of the United States" [1]. There are two specific sets of statutes which address currency creation, that being counterfeiting statutes, and the Stamp Payments Act of 1862.

Coining Currency

In 1998, Bernard von NotHaus started printing metal backed paper currency called Liberty Dollars. He was charged and convicted of violating Title 18, United States Code, Sections 485, 486.

18 USC § 485

Whoever falsely makes, forges, or counterfeits any coin or bar in resemblance or similitude of any coin of a denomination higher than 5 cents or any gold or silver bar coined or stamped at any mint or assay office of the United States, or in resemblance or similitude of any foreign gold or silver coin current in the United States or in actual use and circulation as money within the United States; or      

Whoever passes, utters, publishes, sells, possesses, or brings into the United States any false, forged, or counterfeit coin or bar, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic or corporate, or any person, or attempts the commission of any offense described in this paragraph - Shall be fined under this title or imprisoned not more than fifteen years, or both.

18 USC § 486

Whoever, except as authorized by law, makes or utters or passes,  or attempts to utter or pass, any coins of gold or silver or other metal, or alloys of metals, intended for use as current money, whether in the resemblance of coins of the United States or of foreign countries, or of original design, shall be fined under this title (!1) or imprisoned not more than five years, or both.

As you can see, these laws deal specifically with silver and gold coinage which resembles U.S. and foreign currency, so prosecution of bitcoin participants under these statutes would not apply because of the digital nature of bitcoins.

Stamp Payments Act of 1862

During the 19th century, there were many shortages of small denomination U.S. coins, due to hoarding of coins worth more than their face value (thanks to inflation), so many firms issued private currencies. 

To discourage further circulation of these small denomination coins, congress passed the Stamp Payments Act, Section 2 states the following:

Whoever makes, issues, circulates, or pays out any note, check, memorandum, token, or other obligation for a less sum than $1, intended to circulate as money or to be received or issued in lieu of lawful money of the United States, shall be fined under this title or imprisoned not more than six months, or both.

Now one could interpret "intended to circulate as money" as applicable to bitcoin usage, but because the authors might not have envisioned digital monies, and congressional amendments to the act (as late as 1994) did not include "electronic cash or coins", there is an argument that congress did not intended the law to apply to non-physical currency.

Securities

Under the 1933 Securities Act §2(a)(1), a "Security" is defined as "any note, stock, treasure stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation of any profit-sharing agreement", and many other items. In terms of a note, bitcoins are a settled amount, and are not promises of payment to parties at any future dates. Bitcoins are also not stocks because they do not infer voting rights or claims to profits in proportion to shares.

Investment Contracts

In the Supreme Court case SEC v. W.J. Howey Co., "investment contracts" can be interpreted as "securities" if persons invest monies in a common enterprise, with the expectation of profits by way of a third party [2]. Some could argue that those who participate in bitcoin exchange are doing so at their own volition, independent of one another. Any profit seeking is only a function of supply and demand, and there are no inherit expectations of profits (except on a speculative basis), and those who own bitcoins do not rely on third parties for their value.

To argue the other way, those who participate in bitcoin exchange invest with their own money, and only a small percentage partake as miners. Those who invest do so with a group of like-minded computer developers, forming an enterprise of individuals who have a common desire for bitcoins to appreciate in value. In terms of third parties, there is an expectation that developers of bitcoin source code will continue to maintain its viability.

Commodity

Because bitcoins are not claims on other entities, there may be more reason to classify it as a commodity, like coffee beans. The difficulty in this is defining the inherent value of bitcoins, because they receive no backing by any tangible assets, unlike governments (bullets) and coffee beans (actual items you can roast). For instance, if bitcoin source code suddenly halted, would they be able to retain their value, against say the dollar? Even if bitcoins 'act' like commodities, there nature is similar to that of investment contracts.

Currency

Under securities laws, currencies are are not securities, as the 1934 Securities Act excludes from the definition of a security "currency or any note ... which has a maturity at the time of issuance of not exceeding nine months" [3]. However, the Courts of Appeals have been unanimous in rejecting a literal reading of the exclusions. (United Housing Foundation, Inc. v. Forman [4], Tcherepnin v. Knight [5].) Congress first enacted the securities acts such that they would sufficiently cover all instruments which could be sold as investments. If a case were to go before the courts, and it is argued that bitcoins are currencies and therefore are exempt because they are excluded under the 1934 Securities Act, they may respond by saying that Congress did not intend to exclude those currencies that are also securities.

Conclusion

Bitcoin is able to skirt much of the federal law concerning currencies because of its digital nature. Although, case law on securities may be able to define a bitcoin as a "security", subjecting bitcoins to sweeping regulation and other anti-fraud provisions. There are also other legal issues which may arise over time, including tax evasion, and money laundering [6].

Sources:
  1. Defendant Convicted of Minting His Own Currency -http://www.fbi.gov/charlotte/pre...
  2. SEC v. W. J. HOWEY CO - http://caselaw.lp.findlaw.com/sc...
  3. Securities Exchange Act of 1934 § 3(a)(10) - http://taft.law.uc.edu/CCL/34Act...
  4. United Housing Foundation, Inc. v. Forman - http://caselaw.lp.findlaw.com/sc...
  5. Tcherepnin v. Knight - http://caselaw.lp.findlaw.com/sc...
  6. Bitcoin: An Innovative Alternative Digital Currency - http://papers.ssrn.com/sol3/pape...

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