What’s Next for CBDCs

By JP Schnapper-Casteras and Misha Guttentag

Much has happened — in public health and in central banking — since our last post spelling out some key questions on Central Bank Digital Currencies (CBDCs). Congress is holding hearings, the Federal Reserve and other central banks are actively publishing CBDC research, and foreign and private sector projects are moving ahead.

It’s no coincidence that all this activity is occurring now. We see three main causes: China’s push towards rolling out its CBDC (though many details remain unverified), the continued development of Libra (with mixed reactions), and, more pressingly, the COVID-19 pandemic. In the United States, our struggle to quickly disperse funds to many millions of Americans has exposed our public financial infrastructure as outdated and ill-equipped for this crisis or crises to come. 

Venn Diagram showing how CBCDs fit at the intersection of "Central Bank-issued money" and "Digital Money"
(image adapted from the Bank of England’s 2020 CBDC Discussion Paper)

At a fundamental level, CBDCs represent an opportunity to “fill gaps in the payment landscape,” as the Bank of Canada explained in research released this week. From a consumer and commercial perspective, a CBDC provides a “digital cash” alternative to today’s high-fee, low-privacy electronic payments. With CBDCs, individuals can pay electronically (in person or online) without sacrificing their privacy, and merchants can accept these payments at lower cost. From a policy perspective, a CBDC could offer a variety of other tools and benefits, especially for the one in four American households that are currently unbanked or “underbanked.”

Broadly, the debate over the U.S. digital dollar has quickly shifted from a question of if, to when and how. More pointedly, we see these as the three big questions to be hashed out next:

1. How private will the CBDC be? 

Privacy in payments is a public good that promotes social welfare and protects against price discrimination, as the Bank of Canada recently highlighted. To address the “current trend of declining privacy in payments,” the Bank’s research proposes designing CBDC as “‘enhanced cash’—to reduce the carrying and handling costs associated with cash and enable electronic transfers, while retaining cash’s distinctive desirable features [such as privacy, universal accessibility, and no transaction fees].” Yet several prominent central banks, including the Bank of England, essentially assume that any CBDC won’t have cash-like privacy guarantees. Why not? As the Financial Times recently reported, fears over privacy “are a massive obstacle to switching to CBDCs,” and, given some central bank communications, these fears seem justified.

At the same time, it is important to underscore that CBDC privacy (or lack thereof) is a political question. Whether the digital dollar protects privacy may come down to whether the voting public and other stakeholders demand that CBDCs carry the same privacy guarantees as cash — or if they will accept a CBDC where everyone’s transaction data is recorded with their identities (and/or sold to third parties). For what it’s worth, we think a CBDC without at least some cash-like privacy, especially if accompanied by efforts to phase out paper cash, could quickly turn into a political firestorm and sour public perception on CBDCs. It is also worth highlighting what former CFTC Chairman Christopher Giancarlo told Congress this week: “It may turn out that the United States has an ace to play in the contest for the future of digital money: privacy rights. Coding traditional American ideals of economic freedom and balanced privacy into a digital dollar will surely enhance its global appeal.” We agree — the U.S. has plenty to gain from preserving privacy in its digital dollar.

2. What role will Congress play? 

The legislative branch should play an essential role in CBDC design. As we highlighted in December, the U.S. Constitution empowers Congress with the ultimate authority to oversee and regulate money, and some of CBDC decisions involve policy decisions that should not be left to the Federal Reserve. More specifically, Congress has plenty of tools at its disposal, including funding local pilot programs, issuing CBDC design parameters to the central bank, beginning a trial rollout of U.S. Post Office Banking, or even minting $1 trillion coins to ship reloadable debit cards to every American. Big decisions about the future of money — particularly amid a historic pandemic and economic shocks — should be met by a Congress willing to think and act big, too. 

3. How will the private sector be involved? 

Federal Reserve Chairman Jerome Powell recently dismissed the idea of private sector involvement in the development of a CBDC, but other current and former senior officials, such as Brian Brooks (Acting Comptroller of the Currency) and Christopher Giancarlo (former CFTC Chairman) disagree. Will we see the Federal Reserve launch a CBDC wholly on its own? Or will we see a few different Fed-endorsed “digital dollars” piloted simultaneously, perhaps some issued by the Fed and others by private companies or banks? It may be worth exploring a hybrid licensing framework whereby the federal government sets out technical, regulatory, and oversight requirements for the private sector to issue competing “digital dollars,” while still preserving the benefits of a Fed-run “public option.”

All told, CBDCs remain a fast-moving policy area with far-reaching implications, both in a pandemic and beyond. As Chairman Powell testified, “we owe it to the public that we serve to be up to speed [on CBDCs].” In the meantime, we’ll continue to monitor further developments in this space (as part of our CBDC practice) and are always interested in hearing from potential stakeholders. 

Broadband For All!

In a Pandemic, We Need Public Broadband

In the last two months, billions of people have started working and educating their kids from home, underscoring the necessity of fast, at-home Internet (“broadband”). Yet in the United States, one in four households has no broadband at home. And those who can pay for it mostly get bad deals: U.S. residents, on average, pay more money for slower Internet than the rest of the developed world.

Broadband For All!

Like electricity in the late nineteenth century, broadband deployment today largely follows the profit motives of private providers. This approach leaves many poor neighborhoods — in cities, and especially in rural areas — in digital darkness. Ten percent of Americans, and nearly 40 percent of those living in rural areas, have no option, at any price, to subscribe to broadband where they live. They will continue to be left behind unless we are willing to create broadband networks where the private market has not and will not. 

To bridge these digital divides, the federal government should direct new grants to communities to build their own publicly-owned networks (“public broadband”). Years ago, I made the case for public broadband in the Yale Journal of Law and Technology. I argued that, in many communities, broadband should be built, delivered, and maintained as a public service — like water, electricity, and roads. I also laid out legal and political strategies to help communities build these networks.   

One example of such a network, among many, is in Chattanooga, Tennessee, whose public broadband network is now among the fastest and most affordable in the world. The Institute for Local Self-Reliance maintains a fuller list of America’s public broadband networks here

Just last week, House Democrats announced a plan to invest nearly $100 billion of new broadband infrastructure, including build-out grants and guaranteeing the right of local governments to deliver public broadband. Good. But we should keep careful eye on the proposal’s details as they emerge, to make sure the funds go to communities — and are not just another handout to private providers like Comcast. 

This pandemic has demonstrated unequivocally that broadband is an essential public service. It is high time for our leaders, both national and local, to step up and treat it like one. Public broadband networks, funded via new federal grants directed to communities, are a good place to start.

My article, “A Light in Digital Darkness: Public Broadband after Tennessee v. FCC,” is available here.  

The Rise of Digital Cash

By Misha Guttentag and JP Schnapper-Casteras

What if spending money in the real world was as inconvenient and invasive as spending money online? Imagine a customer at the register of a local corner store:

Customer: I’d like to buy this $1 water.

Merchant: OK, I just need you to type your name, home address, email, and credit card number, all of which I’ll add, without your consent, to your customer profile, where we track every one of your purchases. We’ll tell our partners what you purchased here today (for a fee, of course), send you ads to sell you more things . . .

Customer: Huh?

Merchant: . . . Oh, and we attached a GPS tracker to your coat so we can see what stores you visit next.

Dystopic, huh? Fortunately, in the real world, unlike on the Internet, you have the option of cash, a timeless technology which allows fast, discreet exchange of money for goods and services. Of course “cashless” solutions like credit/debit cards are convenient, too: you can pay by thumbprint/swipe/tap, always make perfect change, and never have to figure out what to do with pennies. But in a digital age, we should have the best of both: the ease and privacy of cash with the convenience of digital payments.1

As Wired Magazine’s Zeynep Tufecki lamented this year: “I want to easily support artists and writers [online] without having to set up an account, create a password, fork over my credit card details, and commit to an ­ongoing­ relationship that involves receiving a new piece of spammish email at least once a week.” When we make payments online, she says, “it sucks.”

So how can we make it suck less? Can it be true that small digital payments are impossible or incompatible with the Internet? No way.2 So why aren’t cash transactions under $5, which are abundantly common in the brick-and-mortar world, available via our computers and phones?

One big answer for the lack of digital cash is that the traditional banking system isn’t designed for them. The legacy payment rails, like ACH, are designed for infrequent, large-value, high-fee transfers between big banks (who own these rails, and charge high fees to use them). Similarly, credit cards charge a high base fee for each transaction, plus ~3% of the cost — which makes accepting small-dollar credit purchases unduly expensive.

But a big technological leap happened in the last year: the emergence and growth of a new, open payment technology called the Lightning Network, an alternative rails for fast (faster than credit cards), low-cost, secure digital cash transactions. It’s still early days, but there’s no question the network works. Here’s an example of Lightning in action, buying a recipe for $0.01: 

We’ve been working on integrating and experimenting with Lightning for a while now, and we couldn’t be more excited about where digital cash is headed. We see three reasons it’s going to be huge: 

One reason is timing: a variety of consumer preferences and market trends are converging in ways that are favorable for digital cash. There is a growing body of evidence that users are increasingly worried about their privacy, fatigued by subscription-only paywalls and targeted advertising, and willing to pay for content and choose products based on how they handle their data. Cash use remains especially popular for individuals under 25. Studies confirmed that we search differently when we know we’re being watched — and it is only logical to assume we buy differently too.3 Businesses are looking for new ways to sell products, expand their user bases, and monetize existing content with alternatives to advertisements. Content creators are clamoring for a way to be compensated directly by fans, as evidenced by the rise of newsletter- and membership-based services like Patreon, Substack, and Medium. In the words of Medium CEO (and Twitter co-founder) Ev Williams, “it’s clear that the broken system is ad-driven media on the internet. It simply doesn’t serve people.”

The second reason is technology. The Internet succeeded because it was open: anyone could launch a website, app, or browser. Similarly, Lightning is designed so anyone can readily send or receive digital cash.4 The legacy banking system is closed — only banks get to send money to and from each other, or only allow transfers within the same network, like on PayPal or Venmo.5 Until recently, there was simply no alternative. But with Lightning, we have a network that is open to everyone. Lightning also makes payments programmable, so as developers dive in, integrating Lightning is leading to all sorts of applications that are just getting started: clearing paywalls as easy as scanning a code, online pay-to-play arcades, you can even instantly feed chickens. The fact that consumers are already getting used to paying by smartphone makes for an easy and exciting transition to digital cash. Here’s Lightning in action, buying a beverage:

Above: Buying a beverage with Lightning (h/t BitMEX); Below: Feeding chickens with Lightning on PolloFeed

The third reason is opportunity: studies have shown that cash payments under $5 accounted for over $1 trillion in consumer spending in the United States alone. If Lightning providers can bring some of those transactions into the digital realm, the revenue opportunity is enormous, and that’s just for handling payments. Much like the early Internet, there is an incredible amount of business that can be built on top of an open network where anyone can participate. We’re not the only ones who think so: legendary computer scientist and former Stanford President John Hennessy, and prominent venture capitalists Mary Meeker and Marc Andreesen have spoken passionately about the massive potential for small payments online, and Twitter co-founder Jack Dorsey invested directly in supporting Lightning development.

To be sure, there is plenty of work ahead. Lightning Network transactions almost all take place using bitcoin, which for now puts it out of most users’ comfort zones.6 And the meteoric success of “free” services such as Facebook, Gmail, and Google Search does suggest that many users are accustomed to paying with their privacy; writers and artists publish plenty of content online for free. At the same time, consumers and creators haven’t really had the option of digital cash before, so we’re in new territory: many of those behaviors could change. 

In short, it’s an exciting time for digital cash. If we build and invest deliberately, we can find ourselves on the cusp of a cash comeback that has the potential to revitalize business models and create new ones, support quality content, and protect privacy. Imagine the possibilities for an economy full of seamless, speedy, private, digital cash transactions. We’ll be able to pay, get what we came for, and move on. With Lightning, that’s just getting started.

Libra’s Legal Challenges

By Misha Guttentag and JP Schnapper-Casteras

Today’s announcement of Facebook’s much-anticipated cryptocurrency, Libra, has already spurred a flurry of commentary about technology and ramifications for the fintech space. But as Facebook publicly unveils its plans for Libra, a new question emerges: is Facebook prepared for the legal challenges to come?

On the face of things, Facebook’s announcement hews close to legal compliance. Their subsidiary is already registered with FinCEN, and their announcement carefully avoids any impression that purchasing Libra will earn users a profit. So, legally speaking, nothing to see here — right? Nope, not so fast. Here are some big, unanswered legal questions on Facebook’s horizon:

First, who will regulate this potentially ground-breaking new “global currency”? In today’s current legal environment, the short answer is just about everyone. In the U.S. alone, the Treasury, SEC, CFTC, IRS and state financial regulators are all already involved in cryptocurrency regulation. Facebook already earned the ire of antitrust groups through its data collection alone; its foray into central banking could be the kicker that finally sets off the Department of Justice’s Antitrust Division to begin more formally exploring the possibility of breaking Facebook up. On the Hill, representatives across the political spectrum have been asking hard questions about Facebook and its currency plans, including a recent bipartisan inquiry from the Senate. The two top lawmakers on the House Financial Services Committee have urged Facebook to testify before Congress about its plans for Libra; Maxine Waters, the ranking Democrat, even called for a moratorium on further Libra development. Other legal questions linger, including about tax implications of Libra-denominated spending, and Facebook’s commitment to enforcing the U.S.’s strict Anti-Money Laundering requirements placed on financial institutions like banks.

Globally, Libra faces an international regulatory landscape that is even more complex. Within hours of Facebook’s announcement, France’s Finance Minister, Bruno La Maire, proclaimed that Libra becoming a sovereign currency should be “out of the question,” that it “can’t and must not happen,” and that it only “increases our determination to regulate the Internet giants.” Jurisdictionally, Facebook headquartered the Libra Association in Geneva, but that hardly settles the question of which countries will try to exert control. In Asia, India’s legislature is considering a bill that would criminalize the purchase and sale of cryptocurrencies, presumably including Libra. China has repeatedly vacillated on digital currencies, banning and unbanning their production and sale. Perhaps Facebook has a grand strategy to employ a phalanx of local counsel to persuade regulators overseas or challenge clampdowns in court where needed. But it is hard to see smooth seas ahead.

Beyond finessing global regulations, Libra will have to contend with United States securities laws, especially surrounding its plans to “stabilize” its currency value. Facebook’s announcement suggests the company plans to “back” Libra with a mix of financial assets in order to stabilize its price. The legal status of so-called “stablecoins” — designed to retain a steady value, as compared to a currency like bitcoin or the Japanese Yen, whose purchasing power appreciates and depreciates — is unclear. The regulatory uncertainty surrounding “stablecoins” played a major part in the dissolution of one of the biggest projects, Basis, which shuttered and refunded approximately $100 million to investors.

More fundamentally, if Facebook succeeds in creating a currency that maintains value — as opposed to the 2% annual decline in purchasing power (inflation target) favored by the world’s central banks, Libra could even represent a source of competition for national currencies. As the Nobel-Prize winning mathematician John Nash mused, monetary policies “are typically of great importance to citizens who have alternative options for where to place their savings.” If Facebook can beat 2% inflation, then some currencies could struggle to compete.

Libra.org, “Vision” (June 2019)

Thus, questions remain: will central bankers (and other political leaders) view Libra as a threat to their monetary sovereignty? Will regulators see stablecoins as a benign mechanism to avoid speculative investment or crashes? Will they view it as a basket of commodities and securities like an ETF? Or will they ask whether stablecoins could constitute a form of market manipulation whereby Libra’s members, who each paid $10 million to participate in the network, intervene to prop up (or deflate) the price whenever they so choose?

Finally, the elephant in the room is not Libra, but Facebook itself. Libra comes out in a difficult and sensitive moment for Facebook, both in terms of politics and popular backlash.  More broadly, there is serious skepticism from progressives and conservatives alike about the expanding size and role of “Big Technology.”  At the consumer level, there appears to be a groundswell of concern about how companies like Facebook are monetizing and handling years’ worth of private data. Whether Facebook can earn back user trust, at the same time it launches a currency that will invariably require some degree of trust, remains to be seen. Indeed, the “In God We Trust” phrase printed on the U.S. Dollar is more than a motto — nearly one century after the Federal Reserve ended citizens’ abilities to redeem dollars for gold, the phrase symbolizes how trust in the currency’s value is crucial to the money’s acceptance and success. A currency without trust backing its value can quickly become worth no more than the paper (or a cotton-linen blend) on which it is printed.  

The big risk for the world’s regulators is not that Libra fails, but that it succeeds. Or, perhaps even more consequential, that Libra succeeds in familiarizing a broad swath of users to digital currencies, who ultimately opt to use an even more permissionless global currency like bitcoin. In the future, regulators considering a clampdown on the cryptocurrency phenomena may find themselves also facing a bitcoin network with no affinity for authority — and longing for simpler or centralized policy landscape that has since been overtaken by events. For now the bottom line is this: between today’s announcement and Libra’s launch in 2020, Facebook’s legal team — and perhaps monetary and financial regulators too — have plenty of work to do.

What the Bank of Canada Still Misunderstands about Bitcoin

The Bank of Canada recently published a study on “cryptoassets” that contains a subtle but significant error. In this post I explain what went wrong and why the Bank, which has previously released high-quality scholarship on this topic, should prioritize a more nuanced understanding of the roles that digital money like bitcoin can play in the banking system.

Appendix: Electricity calculations for a blockchain payment system.

The authors pose the question, “How much electricity would be needed to have all Canadian payments settled on a proof-of-work blockchain?” In the appendix, they calculate that settling every Canadian retail transaction on a bitcoin-like blockchain would entail astronomical energy costs, and conclude: “changes to the bitcoin technology and usage need to be substantial before it could be used as a retail payment method.”

This approach is based on a faulty premise about bitcoin and its blockchain that is emblematic of a broader misconception.

The problem:

At its essence, the appendix conflates payment with settlement, and then determines that every retail transaction would be settled on the bitcoin blockchain, despite no such requirement at a technological or conceptual level.

Even putting aside the appendix’s use of widelydebunked energy estimates or its dismissal of bitcoin-integrated payment technologies, central banks should be conceptualizing of bitcoin as a money and the bitcoin blockchain as a high-security form of settlement. The bitcoin blockchain is not and was not designed to be a method of payment for every retail transaction in the world.

To analogize this distinction, imagine a payment between parties on an app like Venmo. If Alice keeps $100 in her Venmo account and sends $30 to Bob, the payment is merely numbers moved internally on Venmo servers. Only when either party decides to “cash out” — withdrawing funds from Venmo to their bank account, for dollars — might the transaction be considered settled:

Settlement vs. Payments ($)

Like Canadian Dollars or Euros or USD, bitcoin-based payments can be made available via Venmo/Cash App, credit cards, checks, ACH, Paypal, and other layered payment systems. In other words, retail payments could retain existing payment infrastructure and still be denominated in bitcoin, and not necessitate settlement to a bitcoin-like blockchain.

Settlement vs. Payments (₿)

We do not even need to address major recent developments in bitcoin payments technology, such as the Lightning Network and other “Layer 2” development,” to understand that no changes to bitcoin’s technology need to take place before it can be used in Canada’s payment landscape. Bitcoin is not VISA or Venmo — it’s closer to money those companies move around.

To be charitable, perhaps the authors intended only to demonstrate what we discuss here: the futility of broadcasting all retail payments on bitcoin’s energy-intensive blockchain. If so, on this we agree. We do not mean to advocate that all Canadian retail payments should be conducted with or denominated in bitcoin. For many reasons, including familiarity, security, and price stability, Canadian customers and retailers may prefer to transact in CAD. Still, the conclusion that “changes to the bitcoin technology” are required is simply not true.

Moreover, the bitcoin blockchain’s proof-of-work electricity consumption is not an accidental byproduct: it is the means by which transactions are made all-but-irreversible a short time after they are added to the ledger and repeatedly confirmed by network consensus. In other words, the electricity and consensus confirmations offer a level of final settlement better-suited for high-value transfers (e.g., between banks) than for retail payments. If the intent here was to highlight the absurdity of using the bitcoin blockchain for retail payments, without acknowledging the utility of its blockchain for high-value settlement between institutions like central banks, then the authors should make that clear. As Hal Finney, the first person to ever receive a bitcoin transaction, predicted in 2010:

I believe this will be the ultimate fate of Bitcoin, to be the ‘high-powered money’ that serves as a reserve currency for banks that issue their own digital cash. Most Bitcoin transactions will occur between banks, to settle net transfers.”

The Takeaway:

Bitcoin has a variety of pros and cons, uses and misuses. What it does not have is a centralized research department to create these sorts of reports, nor a communications department to publicize and distill its applications and policy implications for lawmakers and central bankers. Such are the consequences of decentralization.

Still, it would be a shame if policymakers do not realize that the questions here go beyond retail payments, and carry global, potentially historic implications. For example: when nations with their own currencies trade with each other, which money should they use for settlement? Former Federal Reserve Chairman Paul Volcker recently lamented the lack of a “common numeraire” in our international trade system. A numeraire, he describes, would act as the monetary unit in international settlement, and free central banks from reliance on the unpredictable supply of a third nation’s currency, most recently the U.S. dollar.

The Adjusted Monetary Base is the sum of currency (including coin) in circulation outside Federal Reserve Banks and the U.S. Treasury, plus deposits held by depository institutions at Federal Reserve Banks.

It is worth considering whether a digital money like bitcoin — with predictable and verifiable supply, as well as Internet-native design tailor-fit for digital banking — could fulfill the role of “numeraire” and establish a “metric unit” for international exchange. If that possibility seems outlandish, fair enough. So too at one point was the possibility of agreement on the mass of the kilogram or the length of the meter, but the measurements enabled trust and coordination, and rapidly became integral for global advancement in science and trade.

The Bank of Canada’s study shows that it is still all too easy to misunderstand what bitcoin is. This is especially true when communications from bankers and bitcoiners alike present strawman caricatures of each other. But this also means that if we are to get serious about the complex and overlapping realms of central banking, retail payments, and digital money, we all ought to be a bit more rigorous and critical. Especially when we read third party research, like this study here, that narrow and misconstrue the discussion of what bitcoin is, and could be.

When are Developers Responsible for their Users?

By Misha Guttentag and JP Schnapper-Casteras

One of Satoshi Nakamoto’s last known public posts, in 2010, was a warning: “Wikileaks has kicked the hornet’s nest, and the swarm is headed towards us.” At the time, PC World had just published an article describing how bitcoin (then trading for a whopping $0.20) could be used for permissionless donations to Wikileaks, despite any bans by local authorities or payment processors. It is impossible to know Nakamoto’s exact concern, but one thing was clear: how people chose to use the bitcoin protocol he released — including how they would spend the bitcoin “currency” it issued — was out of his hands, even if it meant others could use it to potentially break social norms, business monopolies, and local laws. And if bitcoin payments to Wikileaks (or poker sites) were forbidden, could Nakamoto or bitcoin’s other developers be held personally liable for enabling unlawful activity?

Open-source programming often means letting go.

Today, nearly a decade after Nakamoto’s warning, regulators continue to wrestle with waves of permissionless innovation emerging from open-source projects like bitcoin, and to a greater extent, from the Internet itself. A fundamental question remains: should programmers of open-source software — where anyone can build upon, re-release and re-deploy the code — be held responsible if users take the code and violate their local laws or regulations, and if so, where should we draw those lines?

Developer Intent

One possible answer comes from a Commissioner of the Commodity Futures Trading Commission (CFTC), Brian Quintenz, who recently published his thoughts on when, in his estimation, the CFTC should (and should not) bring action against open-source developers whose code is used to violate CFTC regulations. As Quintenz put it, “Absent proof that developers intended that the code facilitate conduct that is illegal, the CFTC should not bring a case against them.” He proceeded to list several relevant questions to consider in determining a “developer’s intent,” including whether the developers were promoting, profiting from, or modifying code in order to enhance unlawful activity.

If the code is a contribution to a bigger system, what role will it play?

For developers who, like Nakamoto, are designing, building, and launching code, these questions of liability are not merely musings: they affect the likelihood of attracting investment, users, and developer talent. Absent more specific statutes or binding authority from regulators, sometimes public speeches and statements are the best sources of legal guidance available.

With Commissioner Quintenz’s commentary in mind, we wanted to highlight a question we expect to surface in the near future: to what extent should open-source developers of bots or algorithms expect to have some legal responsibility for actions that bots take on behalf of their users? Take, for example, a “trading bot” that enabled a user to plug into a trading platform and buy or sell products or digital tokens based on user-provided parameters (e.g., if it rises to XX, sell it — if it falls to YY, buy it). Could a trading bot developer be held liable if a user in a Treasury-sanctioned country downloaded open-source trading software and, via a VPN, surreptitiously deployed on a US-based exchange to sell bitcoin, violating U.S. sanctions? The short answer is likely no, and here’s why:

Guidelines for Code Design

In his speech, Commissioner Quintenz weighed a related question about software that is “specifically programmed” to violate laws, in this case, “to purposely distort the final settlement price” of a futures contract. His approach is worth highlighting here: “The more a code is narrowly tailored to achieve a particular end, the more it appears as if it was intentionally designed to achieve that end.” In other words, if the bot were knowingly designed and intended to manipulate a futures contract (also known as “banging the close”), it would “look a lot like aiding and abetting” of a legal violation — but if it merely allowed a user to make trades at whatever time they wanted, and it is only the user who deploys the software to manipulate a price during a particular interval, the developer should not expect to be held liable.

Additional questions emerge for developers of software that users could operate in ways that transgress Securities and Exchange Commission (SEC) rules, but for those developers, similar principles should apply. For example, if a a developer releases software knowingly and purposefully to enable users in the United States to manipulate trading markets, then the developer might be held liable for contributing to the forbidden action. Recent charges against a software developer involved in designing custom software that enabled sophisticated spoofing of futures markets confirms as much. If, on the other hand, the developer merely releases an open-source trading software — essentially exchange-agnostic, asset-agnostic, leaving the decision entirely up to the user as to which assets to trade, consistent with the laws of the users’ own jurisdiction — then the developer has a compelling case that they should not be held responsible for actions taken (or modifications made) by end-users of their own volition.

Users, Use Care

For users themselves, similar guidelines should apply. On the one hand, if users deploy software to knowingly engage in unlawful activity, they should expect to be held responsible. On the other hand, the risk associated with other types of software use is less clear. For example, imagine a group of card-game enthusiasts who utilize an algorithm to help them trade Magic: The Gathering cards online, an activity that (as far as they know) is legal within their jurisdictions. If their regulators in the future clarify that online trading of Magic cards is somehow outlawed, the group members might expect that any future trades of these cards will incur legal risk, but are less likely to be held liable for previous trades of these cards, since they did not then knowingly engage in impermissible activity. As a best practice, users should take care to check the requirements of their local jurisdiction and adjust their activities accordingly, regardless of the actual functionality of the open-source software before them. As a matter of policy, the onus here should fall on the users, not on open-source developers, since developers would be hard-pressed to monitor, limit, and/or tailor access to their code to meet the evolving jurisdiction-specific needs of each user.

For the time being, Quintenz’s recent focus on a software developer’s intent is a sensible rule of thumb for open source projects of all stripes, including in the context of bots and digital assets. Put differently, developers of OpenOffice should not be held liable if someone uses it to draft a ransom note; on the other hand, a developer clearly designing for illicit use, like releasing a tool called “OpenPassportForger,” would have a comparatively harder time arguing he or she did not intend it to be used to break the law. Even with these broad principles in mind, other market- and jurisdiction-specific rules can still apply in certain circumstances. For example, SEC regulations regarding algorithmic trading strategies conceivably apply to algorithms that trade securities (like stock in eBay and Amazon), while not applying to algorithms that help sellers arbitrage prices between eBay and Amazon platforms, since the products are not securities subject to SEC jurisdiction.

And until the day comes that bots are sentient enough to consult their own lawyers, developers and users of sophisticated automated software should — when in doubt — consult attorneys* of their own.

[*] Disclaimer: Consistent with the terms and conditions of this site and blog, this post is not and should not be treated as legal advice.