Legal Resources on Tokens, Distributed Ledgers, and the Surrounding Noise (Updated Dec. 8, 2017)

In preparation for attending an academic session on virtual currencies and ICOs, I dug around the Interwebs for quality materials that would articulate the legal and political issues surrounding virtual currencies and blockchain, as well as published cases that get under the hood of the problems. It seems like there’s not much out there.

There’s some nibbling around the edges.  Some folks address (at a high level) money laundering, asset forfeiture, money transmission, the commodity v. security debate, state criminal prosecutions that reach odd results, and the privacy/hacking side.  There’s the typical “chicken little” missives published by law firms when an incremental enforcement action occurs or a regulator makes a seemingly important speech. But I struggled to find anything truly comprehensive or comparable in quality to the buckets of prose that have spilled forth from the ivory towers of our nation’s academic institutions about securities, governance, or constitutional law.

The space does involve a moving target.  But where’s the Lawrence Lessig of the token age writing forward-thinking books about how the law must catch up with the chain?  Where is the scholar saying, “you should be looking at how the CFTC regulates oil contracts, how the courts have construed interests in oil and gas royalties under the securities laws, what the HFT guys did before Michael Lewis shined the light on them, and maybe a few of the FinCEN enforcement actions around Mt. Gox while throwing that all together in a Venn diagram with how the FTC regulates privacy and hacking?” Maybe I am missing something.

So, for my own reference, I have compiled an evolving list of materials focused on the law and policy of virtual currency and distributed ledgers:

United States:

• Criminal Enforcement:
• • U.S. v. 50.44 Bitcoins, a fairly well-known case out of Maryland;
  • U.S. v. Faiella, another well-known case out of New York;
  • In Re John Doe, a Coinbase-focused proceeding in San Francisco requiring disclosure of customer records;
• Civil Enforcement:
• • CFTC Order In Conflip, Inc., CFTC Docket No. 15-29, available here;
  • Complaint in CFTC v. Gelfman Bluprint, Inc., Case. No. 17-7181 (S.D.N.Y., filed Sept. 21, 2107), available here;
  • FinCEN BTC-e Action;
  • FTC settlement in Butterfly Labs
• Law Review Articles, Well-Drafted White Papers, and Other Good Stuff:
• • J Lee, et. al, Bitcoin Basics: A Primer on Virtual Currencies, Bus. L. Int’l, 2015, available here;
  • M.E. Griffiths, Virtual Currency Businesses, Tex. Tech. L. J. 2014, available here;
  • Protocol Labs and Cooley, The SAFT Project: Toward a Compliant Token Sale Framework;
  • Preston Byrne’s Blog;
• Policy Research Backgrounders:
• • CRS: Edward V. Murphy, et al., Bitcoin: Questions, Answers, and Analysis of Legal Issues (2015), available here;
  • Memorandum for Congressional Hearing on “Disrupter Series: Digital Currency and Block Chain Technology”, available here;
  • Rand Corp., Nat’l Security Implications of Virtual Currency, available here;
• Regulatory Pronouncements:
• • FinCEN Ruling on Virtual Currency Mining Operations;
  • FinCEN Ruling on Precious Metal Tokens;
  • FINRA Distributed Ledger Paper;
  • OCC Report on Special Purpose Bank Charters for Fintech;
  • IRS Virtual Currency Guidance;
  • CFTC Primer on Virtual Currencies;
  • SEC Investor Bulletin on ICOs;
  • SEC DAO Report;
  • SEC Investor Alert: Bitcoin and Other Virtual Currency-Related Investments
• Related Foreign Materials:
• • ICOs
  • • Canadian Securities Administrators Statement on ICOs
    • Hong Kong SFC Statement on ICOs
    • People’s Bank of China Statement on ICOs
    • Singapore Monetary Authority Statement on Initial Coin Offerings
    • UK FCA Statement on Initial Coin Offerings
    • UK FCA Paper on Distributed Ledger Technologies

This list will continue to grow.