Digital Insights & Trends: “Digital Assets” … or Liabilities?

Margo Tank, Head of Digital Commerce Practice

Delaware’s Fiduciary Access to Digital Assets and Digital Accounts Act (H.B. 345) makes Delaware the latest state to regulate access to “digital assets” after death. Unless the account-holder instructs otherwise, legally appointed fiduciaries will: (1) have the same access to digital assets as they have always had to tangible assets, and (2) the same duty to comply with the account-holder’s instructions. In short, the personal representative or guardian of a digital account-holder can access the emails, documents, audio, video, images, social media content, computer programs, software licenses, usernames and passwords created on the deceased’s digital devices or stored electronically. This access could be very helpful, or extremely problematic, depending on what the digital records reveal. Read more…

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New Bitcoin Firms May Get Transitional License in New York

On November 2, New York Superintendent Lawsky delivered remarks at the Money 20/20 Conference on the state’s virtual currency and Bitcoin regulation. In October, Lawsky publicly stated that, as a result of the comments received on New York’s proposed BitLicense framework, there would be important changes made to the July 17 proposal. This week, on behalf of the NYDFS, Lawsky announced that additional changes are being considered to address “concern about the compliance costs of regulation on new or fledging virtual currency enterprises.” Specifically, Lawsky introduced the concept of a Transitional BitLicense, which would allow certain small, money transmitting startups to begin operating without huge compliance costs. Lawsky noted four main factors the NYDFS would consider when deciding whether or not to grant a Transitional BitLicense: (i) the nature and scope of the business and the associated risks for consumers; (ii) projected transactional and business volume; (iii) registration status as a Money Services Business with FinCEN; and (iv) previously established mitigating risk controls.

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FinCEN Rules Proposed Virtual Currency Exchange, Bitcoin Payment System Subject to BSA

On October 27, FinCEN issued two administrative rulings to companies seeking guidance on whether they must register as MSBs and be subject to the required reporting, recordkeeping, and monitoring obligations. In its first letter, a company queried whether its plans to set up a virtual currency trading and booking platform, similar to a traditional securities or commodities exchange, would make it subject to FinCEN regulations. FinCEN responded that the proposed virtual trading platform would be classified as an MSB. As a result, the company would have to register as an MSB as defined under the BSA. In its second ruling, a company asked whether a bitcoin payment system would be subject to the agency’s regulations. The payment system would accept customers’ credit card payments and transfer the payments to merchants in the form of bitcoin. FinCEN ruled that if the company sets up the payment system, the company would be classified as a money transmitter, and subject to BSA regulations, because “it engages as a business in accepting and converting the customers’ real currency into virtual currency for transmission to the merchant.”

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Department Of Treasury Continues Work To Support Money Transmitters

On October 8, the Treasury released a statement regarding its continued efforts to support the legitimate use of money transmitters by fostering financial inclusion and financial transparency, while simultaneously addressing its vulnerabilities of money laundering and terrorist financing. Highlighting its progress in the last 15 years, the statement notes that “record volumes of remittances are being transmitted through legitimate and transparent channels.” Looking forward, the treasury will improve upon its efforts to increase banking access for money transmitters by (i) making its expectations for banks clearer; (ii) improving AML/CFT controls and compliance; (iii) heightening AMC/CFT oversight; and (iv) reaching out to financial institutions and their customers. Finally, the Treasury is working with federal banking agencies to ensure that not all money transmitters are treated as high risk by banking institutions. Ensuring that these efforts are both domestic and international, the Treasury is working with the United Kingdom, the World Bank, and G-20.

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Digital Insights and Trends: Can Bitcoin Support Money Laundering Charges?

Amy Davine Kim, Digital Commerce CounselUpdated Oct. 7, 2014

Bitcoin owners and exchange operators are coming face-to-face with prosecutors focused on money laundering crimes, leading to novel legal arguments about whether the virtual currency is money, or sufficiently “money-like” to support charges of money laundering and other financial crimes. This comes in contrast to a determination by the IRS, for one, stating that virtual currency such as Bitcoin is treated as property for federal tax purposes, and by FinCEN and FATF, that it does not have all the attributes of real currency and does not have legal tender status. Within this context, FinCEN’s Director Jennifer Shasky Calvery recently told Coindesk that the agency is focused on the bad actors, and not the new technology itself.

As reported last month in Digital Commerce & Payments, a New York Federal District Court concluded in Faiella et al. v. United States, that Bitcoin is “money,” denying a defendant’s motion to dismiss a money laundering charge. The defendant was charged with unlawfully operating an unlicensed money transmitting business, but unsuccessfully tried to dismiss the charge because Bitcoin is not “money.” The court said Bitcoin “clearly qualifies as ‘money’,” as it “can be easily purchased in exchange for ordinary currency, acts as a denominator of value, and is used to conduct financial transactions.” Read more…

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Eastern District Court Of Texas Enjoins Bitcoin Investment Scheme And Orders Founder To Pay Civil Penalty

On September 18, the U.S. District Court for the Eastern District of Texas held that the defendant’s bitcoin investment program was a Ponzi scheme, and enjoined the founder and the investment program from violating Section 10(b) of the Securities Exchange Act of 1934 and Sections 5 and 17(a) of the Securities Act of 1933. S.E.C. v. Shavers, No. 4:13-CV-416 (E.D. Tex. Sep. 18, 2014). The court ruled that the founder knowingly and intentionally operated the bitcoin investment program as a sham and Ponzi scheme by repeatedly making misrepresentations, both to investors and potential investors alike, concerning: (i) the use of their bitcoins; (ii) how he planned to generate the promised returns; and (iii) the safety of the investments. The founder used new bitcoins received from investors to make payments on outstanding bitcoin investments, and diverted investors’ bitcoins for his own personal use. The court granted Plaintiff’s uncontested motion for summary judgment or, in the alternative, for default judgment, and, in addition to the injunctions, ordered Defendants jointly and severally liable for disgorgement of approximately $40 million in profits, and ordered each Defendant to pay civil penalties in the amount of $150,000.

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Eastern District Court of Texas Holds that Bitcoin Investments Are Securities

On August 26, the U.S. District Court for the Eastern District of Texas held that the Bitcoin investments at issue are “investment contracts” and “securities” within the meaning of the Securities Act of 1933 and the Exchange Act of 1934. S.E.C. v. Shavers, et al., No. 4:13-CV-416, (E.D. Tex. Aug. 26, 2014). The Court found that the Bitcoin investments in the case satisfy the “investment of money” prong established by the Supreme Court in S.E.C. v. W.J. Howey & Co., 328 U.S. 293, 298-99 (1946), because Bitcoin has a measure of value, can be used as a form of payment, and is used as a method of exchange. The essence of an investment contract, the court reasoned, was the contribution of an exchange of value, rather than “money” in the narrow sense of legal tender only. The SEC alleged that the Defendants made a number of solicitations aimed at enticing lenders to invest in Bitcoin-related investment opportunities. The Court granted the Defendants’ motion to reconsider its prior decision on subject-matter jurisdiction, but denied the Defendants’ motion to dismiss for lack of subject-matter jurisdiction.

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Digital Insights & Trends: There’s an App for That – But Is It Legal?

Margo Tank, Head of Digital Commerce Practice

The “sharing economy” is an e-commerce darling, making household names of companies like Airbnb and Lyft, with lesser-known businesses such as RelayRides and MoneyParking emerging daily. Also called the peer-to-peer business model, the digital sharing economy was estimated at $26 billion in a 2013 Economist article, with Forbes estimating 25% annual growth. Its benefits have been touted by the public, some politicians and the press, and range from reduced environmental impacts and information asymmetry to increased social and trust communities, in addition to financial rewards for consumers on both sides of the sharing transaction.

While legions of users connect to car-sharing, home-sharing, parking-sharing and goods-sharing sites through smartphone apps, legal challenges pile up, because some aspects of the sharing economy aren’t strictly legal. Consider, for example, the subpoena from New York Attorney General Eric Schneiderman to accommodation-sharing site Airbnb, based on Schneiderman’s claim that most Airbnb hosts are violating a law prohibiting subletting homes for less than 30 days. In his April op-ed in the New York Times (“Taming the Digital Wild West”), Schneiderman also says Uber may be violating state laws on price gouging. Read more…

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D.C. Transitions Money Transmitter And Other Licenses To NMLS

On August 20, the District of Columbia Department of Insurance, Securities and Banking (DISB) announced that, as of September 3, 2014, it will begin using the NMLS to manage money transmitter, check casher, money lender, retail seller, sales finance company and non-bank ATM licenses and registrations. Beginning on that date, new applicants for such licenses and registrations must apply via the NMLS. Entities currently holding such licenses and registrations must create a complete record in NMLS and submit it to DISB for approval by December 31, 2014.

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Federal District Court Holds Bitcoin Is Money

On August 19, the U.S. District Court for the Southern District of New York found that Bitcoin is “money” in a memorandum order denying a defendant’s motion to dismiss a federal money laundering charge. Faiella et al. v. United States, No. 14-cr-243 (JSR), 2014 WL 4100897 (S.D.N.Y. Aug. 19, 2014). The defendant is a former Bitcoin exchange owner who was charged in 2013 with unlawfully operating an unlicensed money transmitting business. In his motion before the court, the defendant argued that the charge should be dismissed because Bitcoin is not “money” within the meaning of the statute. The court disagreed, relying upon the dictionary definition of “money” to conclude that Bitcoin “clearly qualifies as ‘money’” as it “can be easily purchased in exchange for ordinary currency, acts as a denominator of value, and is used to conduct financial transactions.” The court additionally relied on Congress’ intent that anti-money laundering statutes keep pace with evolving threats, and also cited an opinion from a similar case in the U.S. District Court for the Eastern District of Texas that concluded Bitcoin can be used as money. SEC v. Shavers, No. 4:13-CV-416, 2013 WL 4028182, at *2 (E.D. Tex. Aug. 6, 2013).

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CFPB Announces EClosing Pilot Participants

On August 21, the CFPB announced the companies that have been selected to participate in its residential mortgage eClosing pilot program. The program is intended to explore how the increased use of technology during the mortgage closing process may affect consumer understanding and engagement and save time and money for consumers, lenders, and other market participants. Specifically, the program seeks to aid the CFPB in better understanding the role that eClosings can play in addressing consumers’ “pain points” in the closing process, as identified by the CFPB in an April 2014 report. The three-month pilot program will begin later this year, and the participants include both technology vendors that provide eClosing solutions and creditors that have contracted to close loans using those solutions.

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FTC Finalizes Mobile Application Privacy Settlements

On August 19, the FTC approved final orders resolving allegations that two companies: (i) misrepresented the level of security of their mobile applications; and (ii) failed to secure the transmission of millions of consumers’ sensitive personal information. The FTC alleged that one company’s application assured consumers that their credit card information was stored and transmitted securely even though the company disabled a higher level of security validation, which allowed such credit card information to be intercepted. In addition, the company allegedly failed to have an adequate process for receiving vulnerability reports from security researchers and other third parties. The FTC alleged that the second company also disabled enhanced security validation despite claiming that it followed industry-leading security precautions, which also left consumers’ information vulnerable to interception. The final settlement orders require both companies to establish comprehensive programs designed to address security risks during the development of their applications and to undergo independent security assessments every other year for the next 20 years. The settlements also prohibit the companies from misrepresenting the level of privacy or security of their products and services.

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New York Extends Comment Period For BitLicense Proposal

This week, the New York DFS announced the extension of the comment period on its proposal to create a regulatory licensing framework for virtual currency companies, including a so-called BitLicense. Given the “significant amount of public interest in and commentary on” the proposal, the DFS doubled the length of the comment period from 45 to 90 days. Comments are now due by October 21, 2014. Further information about the proposal and related issues is available here.

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Ninth Circuit Affirms Decision Not To Enforce Browsewrap Arbitration Agreement

On August 18, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s decision not to enforce a retailer’s online “browsewrap” arbitration agreement because the retailer failed to provide adequate constructive notice. Nguyen v. Barnes & Noble Inc., No. 12-56628,2014 WL 4056549 (9th Cir. Aug. 18, 2014). The consumer filed suit alleging that the retailer’s cancellation of his online purchase of two sale items caused him to buy substitute products at a greater expense. The retailer responded that by making the purchase through the company’s website, the consumer accepted the website’s Terms of Use, which contained an agreement to arbitrate any claims arising out of use of the website. Although this “browsewrap” agreement provided that any user of the website was deemed to have accepted the agreement’s terms by, among other things, making a purchase, the district court held that the consumer did not have constructive notice of the Terms of Use because the site did not require that the consumer affirmatively assent to them. The Ninth Circuit agreed, holding that “where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.” The court also rejected the retailer’s argument that the customer had constructive notice of the browsewrap terms based on his prior experience with browsewrap agreements found on other sites, including some popular social media sites.

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California Federal Court Dismisses User Information Claims Against Digital Wallet Company

On August 12, the U.S. District Court for the Northern District of California dismissed for failure to state a claim a putative class action alleging that a digital wallet provider made unauthorized disclosures of user information to third-party mobile app developers. Svenson v. Google Inc., No. 13-cv-04080, 2014 WL 3962820 (N.D. Cal. Aug. 12, 2014). The named plaintiff claimed that when the digital wallet provider processed payments for apps purchased through an affiliated online store, it also provided certain customer/personally identifiable information to third-party app developers, including email address, account name, home city and state, zip code, and in some instances, telephone number. The plaintiff asserted theories of breach of contract and breach of the implied covenant of good faith and fair dealing, as well as violations of the Stored Communications Act and California’s Unfair Competition Law. The court held that the plaintiff’s breach of contract claim failed, reasoning in part that: (i) the plaintiff was not deprived of the “benefit of the bargain” given that the allegations involved free services and a $1.77 app; and (ii) there was no support for the theory that the economic value of the plaintiff’s information was diminished (because the plaintiff failed to allege that there was a market for the information). Similarly, the court held that the plaintiff’s Unfair Competition Law claims did not allege an economic injury, and that the breach of implied covenant claims were duplicative of the breach of contract claims. The court also dismissed the plaintiff’s Stored Communications Act claims.

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