Monday, January 23, 2017
Allison Caffarone and Meg Holzer (Hofstra University - Maurice A. Deane School of Law and Hofstra University - Maurice A. Deane School of Law) have posted 'Ev'ry American Experiment Sets a Precedent': Why One Florida State Court's Bitcoin Opinion is Everyone's Business (Hofstra Law Journal of International Business & Law, Forthcoming) on SSRN. Here is the abstract:
July 22, 2016. A Florida state court dismisses a three-count information against a sole defendant in "a Miami money-laundering case that is being closely watched around the world." The defendant, a dealer of the virtual currency bitcoin, is free to go. He is also free to continue engaging in the sale of bitcoin. This "victory for bitcoin users" was the first state court case to address Bitcoin in the context of the money services business and anti-money laundering statutes. And on every front, the court got it wrong — while the world was watching. Federal and state prosecutors, defense attorneys, judges, and the Bitcoin community paid careful attention to the case. And although the opinion is not binding, it must be given its "proper regard." The Little Case That Could has effectively become the Little Case That Shouldn't.
Two avenues must be pursued to correct the problems with the Espinoza court's findings. First, a Florida appellate court must overturn the decision on appeal. Second, the legal and financial communities must, as the Southern District of New York already has, disregard the Espinoza court's ineffective reasoning as they continue to develop the law of Bitcoin. Because while this Florida state case awaits appeal, and is not binding on any court, it remains persuasive authority in an area of law where few cases have directly analyzed the character of Bitcoin. As the law is in a constant state of growth, a trial court order opining on this topic has the possibility to cause damage. What exactly did the court do — and decline to do — when it dismissed the charges against Espinoza? And why is this state court dismissal of these charges against a sole defendant so potentially troubling across the world? To answer these questions, we first must turn to the currency (or is it?) at the center of the case: bitcoin.
Part I of this article seeks to explain in largely non-technical terms the design of the Bitcoin network. Part II explains the guidance and administrative rulings provided by the United States Department of the Treasury's Financial Crimes Enforcement Network in relation to the issues in the Espinoza case. Additionally, Part II surveys different approaches taken by state legislatures and regulators in seeking to address decentralized virtual currencies, including bitcoin. Careful attention is paid to how the terms "monetary value" and "virtual currency" are defined, and how those definitions have been interpreted. Part II further explores the differences in the way the respective laws and guidelines treat different members of the Bitcoin ecosystem. Part III analyzes the Espinoza case, taking a critical look at the reasoning behind the dismissal of the criminal information, and suggests that the court's holdings are analytically unsound. Finally, we argue that the Espinoza case must not be allowed to stand and needs to be reversed on appeal.