New York’s Department of Financial Services has presented draft regulations for bitcoin trade that are an absolute heap of bullshit, and that’s even before going into what the proposal actually says. The propsed regulations require a so-called “BitLicense” in order to trade in bitcoin with residents of New York and with everybody else in the world. The problem is, that’s an absolute joke from a legal standpoint, completely ignoring the very concept of a jurisdiction.
At last, the proposed regulations for bitcoin trade were published for comments. The bitcoin community has been absolutely furious, but nobody’s going into the fundamentals of the proposal: that it asserts authority over the entire world on the basis of being located in New York.
That’s no more possible – or enforcable – than if the President of Iran asserted authority over the entire world on the basis of being located in Teheran.
Here’s the (proposed) deal: the proposed regulations say that any company, no matter where in the world, doing bitcoin business with a resident of New York must have a so-called BitLicense. The first problem with this is that this BitLicense doesn’t limit itself to regulating the trade between the company and the resident of New York; it asserts authority over any person, no matter where in the world, doing business with that company, which is also located no matter where in the world.
So regulators of New York are asserting authority over trades taking place between a business in Slovenia and a client in Malaysia, based on the idea that the business in Slovenia may also have clients in New York. In technical terms, this is absolute, total bullshit.
To pull a parallel: imagine if Iran determined that any web site offered to Iranians must implement Shari’a laws, not just when offered to Iranians, but when offered to anybody on the flimsy basis that it is also offered to Iranians. This is how batshit insane the asserted authority of the BitLicense proposal is.
I see it as a way to try to deliberately fragment the bitcoin trade into unworkability. If every single patch of land publishes their own requirements for bitcoin trade, and asserts that their requirements apply everywhere, we’ll have an impossible patchwork of 246 legal frameworks that all bitcoin companies must follow, full of multiple contradictions everywhere. It’s nothing short of a deliberate sabotage.
(246 is the number of countries in the world, with the US counted as its 50 states plus DC.)
So while it’s not exactly illegal to assert authority outside of your own jurisdiction like this, it’s completely unenforceable, for the simple reason that when a person in Malaysia trades with Bitstamp in Slovenia, the NYPD has no right to interfere neither in Singapore nor Slovenia. It’s out of their jurisdiction, which literally means that New York doesn’t get to set any rules whatsoever.
But it goes beyond that. The New York regulators don’t have authority to regulate the Slovenian business Bitstamp, or any other non-US business, even for its clients in New York, either. When I choose to do business with a Californian company from my home base in Stockholm, Sweden, I understand and accept the ridiculously fundamental fact that a business in California operates under Californian law, and that Swedish police and justice has absolutely no say whatsoever in how it chooses to operate. Nor does the Swedish judiciary have any say in how I choose to do business with foreign entities, as long as I don’t bring home contraband.
This means that New York regulators are limited to regulating businesses physically operating in New York, and only businesses physically operating in New York. That’s what “jurisdiction” means. That’s what “enforcement” means. New York Police simply doesn’t get to say how a Slovenian business operates, regardless of whether citizens of New York choose to do business with it, on the simple basis that the NYPD doesn’t get to bloody invade Ljubljana.
The entire proposal is bullshit from its assertion of authority onwards.
If you want to go into the insanity of the proposal itself, looking beyond its (complete lack of) authority to regulate, Erik Voorhees has done a nice write-up. Among other things, he observes that “this is not consumer protection. This is explicit surveillance of private citizens who are not accused – nor even under suspicion – of committing a crime.”
This regulation proposal is a deliberate sabotage attempt against the bitcoin ecosystem, and I pledge to treat companies that take part in this attempted sabotage accordingly:
I pledge to never do business with any bitcoin company that submits themselves to this governmental abuse of their own customers, getting this ridiculous New York “BitLicense” and submitting themselves and their customers to a foreign hostile jurisdiction.
Only companies which are physically based in New York – physically based in New York – need care about what New York regulators say. The rest of the world, can, should, and must just plain ignore their silly attempts at bullying.
Thats what governments do, just for the sake of exercising its powers over the People. Just to keep all the power with the state and to prevent us the people from getting any power for ourselfs. Allmighty state will never let self organized Freedom happen as it is a Danger for the Ruling class of state burocrats und capitalists. State Regulation is good for capitalist class as it helps to secure the private Monopoly of Banks und big corporations. This is because only big corporations can afford lawyers and burocracy to fullfill all the regulations. In result every project organized by the people will die because of Government regulations.
So, Pirates want freedom ? Well, you will never get it in a capitalist etatist society..
It is entirely craziness. The level of audacity is over 9000
Me thinks thou doth protest too loud! As Shakespeare would say. You repeatedly assert that New York or anywhere has no legal authority or jurisdiction in the matter. If you believed that, the New York plan would be moot and not even merit mention. You further point out the scope is for any one anywhere in the world doing business with a New York resident, regardless of the location of that resident .. Yeah, they have global jurisdiction over their resident and local jurisdiction over assets and money flows. So if your bitcoin is gonna deal with a resident or if you ever plan to obtain cash from a resident or business or even transit that cash (or other asset) through New York then they have jurisdiction. They also have ability to sieze that asset in such transit, as it passes by wire, bank, courier, email of acct control number, or in any way physically through the borders of the jurisdiction or hands of a new york resident or business doing business in or holding or controlling assets in New York. So really you are wrong again, the reach is quite far from a legal and practical standpoint. Just because you want to make up your own rules and decide what is fair and right does not exclude anyone and everyone else from also doing so. The fact they may have greater standing and authority, and reach than you presently is simply too bad for you.
The blockchain isn’t physically located only in New York and there is no “ability to sieze that asset in such transit” because in the case of a pure bitcoin ledger update there is no transit. Bitcoins don’t physically move. Its a database that gets updated. Only a New York resident need fear the NY regulators since the private key to update certain bitcoin addresses is solely under the NY individuals control. BitLicense boycott outside of NY is inevitable because NY enforcement does not have global enforcement resources. For example look at the botched Kim Dotcom attempt and that wasn’t even a P2P network. Falkvinge is right.
Julian, you are correct.
Boather? seriously? do you know how bitcoin is transacted? Bitcoiners are now legion. How do you mean physically? How would they seize the asset if they can’t see it? And it’s over in a blink of an eye? I realise Mr. Falkvinge is head of a party but I also undertake never ever to vote for anyone who will Lord it over me. Never. We are all starting to feel the grubby hands of politicians squeezing down on us. Ed Snowden opened a window and so did julian Assange and others. What would you prefer – do you really love your bank, your pension plan and other stuff that governments can’t leave their fingers out of?
Rick Falkvinge, though the founder of the first Pirate Party is not its head. His current title, I believe, is “party evangelist.”
Does this mean that a bitcoin exchange operating in, say, the state of Florida should only have to comply with money transmitter laws as prescribed at the Federal and Florida levels? I’ve read some pieces about regulation in the U.S. (written by an attorney) which seem to promote the idea that a business serving customers in any U.S. state would have to seek out a money transmitter license in each state.
Regardless of what *should* happen, it would be unfortunate to have bank accounts seized based on such an assumption.
The U.S. is kind of a tricky special case when it comes to state-to-state jurisdiction. There may well be agreements or statutes in place that a Florida exchange has to agree with 50 other regulations, many of them completely contradicting each other (49 plus DC). However, that would be a U.S.-internal problem that doesn’t extend to Slovenia.
To complicate matters further, this may also have been brokered directly at the state level, constructing a complex matrix of which states need to follow which regulations, such as (for example) cross-state honoring of gun permits.
Cheers,
Rick
The US has already tested its jurisdictional claims in two separate cases: First, they shut down MegaUpload and had New Zealand arrest Kim Dotcom, even though he was in New Zealand, on the legal theory that a crime is taking place in the US if Kim Dotcom’s web site can be reached from the US.. Then, the US prosecuted and shut down Liberty Reserve, even though its servers were in Costa Rica and its owners were in Spain, relying on the same legal theory.
If New York tries to prosecute Slovenians, Swedes, and Germans for doing business with New Yorkers against its wishes, it will probably prevail, even though Germany would never be able to prosecute someone in Alabama for putting up a Web site with a swastika on it that’s visible from Germany.
I agree, completely. It appears that the state of New York wants to make it impossible for any enterprise other than an existing bank to comply with these regulations, not to mention making it idiotic for any bank to do so.
My own review of the regulations found a few problems. I’ve appended them here in case anyone wants to see.
My own review found specific problems such as: 200.2 (a) affiliate is defined to suggest criminal conspiracy; (d) fiat currency refers to a law http://www.law.cornell.edu/uscode/text/31/5103(external link) identifying legal tender but not establishing any punishment for refusing to accept it; (h) does not have any geographic limitations on persons coming under the jurisdiction of this supposed authority; (j) is so defined that a person can be a principal shareholder without owning any stock; (m) defines virtual currency to include bullion, coins, and other manufactured items such as tokens; (n) defines virtual currency business activity very broadly to include any receipt of virtual currency; 200.3 prevents anyone without a licence from accepting virtual currency unless exempt as a merchant or consumer (thus, anyone); 200.4 (a) (2) and (3) requires very complete lists of names and particulars invading the privacy of everyone involved in the licence holder; (5) by requiring fingerprints you are presumed criminal and by requiring photographs you must participate in the fallacy of the identity state; (7) none of your officers have any financial privacy and must incriminate themselves through extensive disclosures; (8) all your strategies and advantages must be disclosed and will get around to your competitors; (11) you are presumed guilty; (13) you have to explain things to the ignorant people who claim authority to regulate you; 200.4 generally: you apply, they deny, until you run out of money; 200.5 fees are not refundable no matter how frivolous their reason for denial; 200.6 (a) extensive weasel words about the confidence and trust of the community and the efficiency of applicants that makes it clear that anyone can be denied unless they have a very cozy relationship with the superintendent; (b) you cannot expect any results because the superintendent can extend the time he/she has to review your application as much as he or she wants; (c) additional weasel words to allow any licence to be revoked for any reason or no reason so you cannot expect to keep a licence unless you already have enormous economic power; (d) revocation comes after an administrative hearing, there is no appeal process indicated; 200.7 (a) you must comply with millions of pages of state and federal regulations without fail; (b) and be able to prove that you have done so at whatever that costs you; (c) you must spend (as entrants into heavily regulated industries such as Tesla Motors seem to have done, for years and to the tune of millions of dollars) on compliance with regulations even if you are not yet or have ceased doing business; 200.8 (a) your books are completely open; (a) (4) if you are a bank or otherwise already regulated you may be presumed to have carte blanche if we understand this section correctly; (c) you cannot keep any earnings or profits in gold, silver, virtual currencies, shares of your own stock, or in any way but certificates of deposit, money market funds, state or municipal bonds, USA government securities, USA government agency securities – in other words, there is no escape from inflation, and this provision is obviously meant to extend further funds to the out-of-control warfare and welfare state that has to be financed with endless debt upon debt; 200.9 (a) the superintendent can require a bond of any amount at all, can change that amount at will, and can close your enterprise if you don’t get all the bond to satisfy the superintendent that the bonded amount is acceptable, and your enterprise can have a completely different bond amount from every other enterprise even if they are exactly the same as you in all major ways, and you have no appeal to anyone else, ever; (b) you cannot have any fractional reserve of virtual currency in your operations, which is going to be a source of dismay to the banking cartel that the New York state department of financial rigmarole is usually jumping through hoops to please; (c) don’t go using client funds without their knowledge the way various brokerage and banking concerns during the 2006-2013 financial crisis have been proved to have done; 200.10 see above concerns on innovation being prohibited; 200.11 (a) you cannot sell your controlling interest in a licence holder without permission; (a) (2) control does not apply to enterprises that are not stockholder corporation type; (a) (3) change of control takes longer than it does to get a licence in the first place, and this time may be extended indefinitely, so you can be prevented from selling your ownership forever at the whim of the superintendent, and, oh yeah, you still have no way to appeal any such action by the superintendent; (b) you cannot merge without permission; (b) (1) you have no privacy; (b) (2) it takes less time to get a licence than to get a merger approved, the merger review time can be extended at the whim of the superintendent; you cannot appeal any part of the actions of the superintendent ever; (b) (3) extensive weasel words to excuse the superintendent for refusing a merger for no reason; 200.12 (a) you have to keep data for ten years or more, which is longer than phone companies are required to keep the records of phone calls, texts, and Internet activity for the federal espionage agencies; (a) (6) you have enormous costs to keep all this information; (b) you have no privacy; (c) a time period is referenced from an Abandoned Property Law, which is not cited as to what chapter of which part of the New York state code it might be found in, and the time period itself isn’t indicated – presumably there is a definition fail here, as well; 200.13 (a) at the whim of the superintendent you can be examined every hour of every day without recess; you have enormous costs for examinations which you bear entirely; there is enormous uncertainty about doing business anywhere else in the world if you have a licence; there is no way to know whether you will be allowed to continue operating because of the onerous nature of the examinations; you have no right to appeal at all, ever, any whim of the superintendent; 200.14 (a) more costs for quarterly reports; (a) (3) your plans are going to be exposed; (b) more costs for audits and preparation of financial statements; (b) (2) more costs for proving compliance with everything under the Sun; (b) (3) guess who is totally responsible for the accuracy of all those reports and statements and has no right of appeal, ever; (c) merely being arrested or sued, even in the case of a frivolous suit, can jeopardise your licence, and any conviction includes the promise of double jeopardy, being punished again by the licensing authority; (d) you have to be able to calculate the value in fiat currency and be responsible for what you’ve filed with the New York department of financial shenanigans, but you have no control over the market, so good luck there; (e) you have to report yourself and give up your Fifth Amendment right to be safe from being required to incriminate yourself; (f) at the whim of the superintendent you can be required to spend all of your time filing additional reports on anything, at any time, and in whatever way the superintendent demands; you continue to have no right to appeal any part of any of this stuff; 200.15 you have to have accounting in USA dollars the value of which you have no control over; 200.15 (a) you have to pay for a very expensive and comprehensive risk assessment that you probably won’t ever find useful; every year or at the whim of the superintendent you have to conduct additional pointless risk assessments that, oh, by the way, won’t reduce any risks; (b) you have enormous costs for anti-money laundering compliance; (b) (2) there is a cost here that is an obvious sop to the companies that do “independent testing for compliance,” so, yay for more regulatory capture; (b) (3) there is someone at your company they will come arrest, so, keep this person terrified; (b) (4) enormous costs for training so that everyone is always afraid and wants to rat on everyone else; (d) (1) your customers cannot have any possibility of privacy, and if they provide an address which is not p
hysical you are in violation; (d) (2) there are endless reporting requirements, and a $10,000 limit per day per person plus (g) (4) requires special orifice probes for any customer wanting to do more than $3,000 in business with you, ever; (d) (3) you are required to spy on your customers and, you have to pay the costs for doing so; (d) (3) (ii) even if you aren’t otherwise required to pay for filing some federal forms, you have to file other forms, at the whim of the superintendent; (e) you are liable for assisting in structuring whether or not you have material knowledge that a customer structured transactions to avoid some of the reporting requirements; (g) (1) you have to know and spy upon your customers; (2) all foreigners are suspected of being criminals and you should discourage them from doing business with you, or else; (3) if a business enterprise doesn’t have some brick and mortar “physical presence in any country” you are in big trouble if you do business with them, because bricks and mortar are good; (j) you have to designate a scape goat and pay to have that person do an enormous amount of stuff; yeah, no appeal here, either; 200.16 (a) don’t ever have your computer security fail; (a) (3) don’t fail to detect intrusions; (a) (5) you have enormous costs here; (c) designate someone they can come arrest; (e) enormous costs for audit, penetration testing; audit trail; reconstruction tracking; tamper protection; logs; records; source code reviews; (3) your source code will be reviewed, and presumably exposed to your competitors; (f) you have enormous personnel costs in hiring, training, and updating; 200.17 you have enormous costs in business continuity and disaster recovery, and you better be able to prove you’ve already spent this money by the time you apply or “no soup for you!”; also in this section, you don’t matter in the event of an emergency; 200.18 There are enormous costs to comply here, you aren’t allowed to make any errors in your advertisements, there is a clear restraint of trade by the NY state department of funny business, and there are identifiable prior restraints on your freedom of speech; you have to keep hard copy of your ads so more trees will die; oh, and no right to appeal; 200.19 there are some hints here at multi-language support, so be ready to pay more to comply; there is in (a) (1) prior restraint on your free speech; (a) (2) you are required to instill fear of political risk in your customers; (a) (4) you have to talk about the block chain, whether your virtual currency is a block chain currency or not, and you have to include weasel words about event timing here; (a) (6) you have to include weasel words to discourage all of your customers; (b) more language support, more costs, more fear that you must instill in your customers or else; (d) you have to have one of those nonsensical acknowledgement of disclosure buttons that implies you have disclosed things that most of your customers didn’t read and will ignore; (e) you have to have a very expensive system for handling all complaints, however frivolous; (g) don’t engage in fraud, unless it is one of the many types of fraudulent misrepresentations inherent in fiat currency, investing your retained earnings in doubtful government securities, and misrepresenting how the NY government is pretending to protect consumers; you have to pay for an anti-fraud policy that complies with bizarre standards; you have no rights to appeal any of this part, either; 200.20 complaints are also part of the costs you will bear, and, oh, you have to testify against yourself; 200.21 there will be a brief grandfather clause if you were already doing business when all this stuff becomes the law of the land, so submit an application within 45 days or fail; if you have applied and were already doing business, you are in compliance, unless the superintendent has a whim.
[…] Why The Proposed New York Bitcoin Regulations Are Absolute, Total Bullshit […]
While I agree licensing and regulatory oversight is ridiculous in this space there is a HUGE flaw in your argument. Where ever you are in the world you are totally free to NOT do business with someone in NYS.
The so called purposed of regulatory authority is protection of the residents of that state. And we all have to admit the news is full of assholes opening a financial service and then ripping the residents of various states and or countries. So as long as that happens it gives regulators a way in to the game.
Anyhow, if you do business with a company in NYS- they have every right (according to current law) to get involved. It has nothing to do with where YOU are but where the counter party is currently residing.
So if you do not want to be regulated by NYS authorities don’t do business there. But for drama queens it wouldn’t be as interesting to just do the logical thing.
I’ve only skimmed this, but ISTM that “doing business with” includes accepting money from them as a donation, or conducting a transaction with them even when the contract specifies a non-NY choice of law, and it seems to be a strict liability law, so you don’t even have to know that your “customer” was a NY resident.
Such a statist. Broad general rejection, how about answering some of the specific terrible aspects of the law he brought up? This is a grab bag of arbitrary power grabbing and punishments on btc and those who use it. Show me how this was applied to MF Global? But will certainly be applied to joe 6 pack to restrict his freedoms business and private.
It would be better for them to just put a “code” in that restricts NY residents from using bitcoin in certain ways like parking and j-walking. When did it become that a State “owns” you because you are a resident? The laws are anti competitive and meant to destroy crypto currency. Will not happen. Bitcoin remittance and acceptance will just become extremely decentralized.
The cat is out of the bag and getting it back in be it bitcoin or another crypto will be near impossible by its nature.
If they BAN the protocol, then we encrypt it and obfuscate signaling.
If they BAN exchanges then we P2P the exchanges and use POP money etc w/o reference to bitcoin.
Any jurisdiction where it is legal to use and tie to commodities will gain billions in business by backing BitGold or BitEur and BitStockX, BitFund.
If they continue to tighten against the will of the people then you will be introduced at some point to a Bitbullet.
The problem with the regulation is it regulate people and business happening outside the territory of the state of New York.
If a New York resident want have business with me in my home country (a person in New York wiring US$ to Bitstamp.net for example) is him that must be regulated, jailed, fined or whatever.
I do not voted, choose or accepted to be regulated by some dude in NY and I never went to NY.
It is about taxation and regulation without representation.
Now, what if a country like Italy decided to write a law against who interfere with lawful (for Italy) business established in Italy? Would like Mr. Lansky to be wanted in Italy? Would him like to be in danger to be arrested and extradited in Italy in any country of Europe if he put a foot here or was just traveling by plane and passing over the air space?
I’m asking just out of curiosity, why did you mention Slovenia so many times?
Because Bitstamp, one of the dominant (if not the dominant) bitcoin exchanges, is located in Slovenia.
Oh, i didn’t know that. Thank you for that piece of info.
This isn’t the first time that the US comes up with some ridiculous nonsense in the area of banking regulations.
A few times ago, I read about a case where a Germany-based company was (and still is) selling stuff to German residents. They accepted several forms of payment; One of the payment options they accepted was paying through a payment processing company based in Luxembourg (they call themselves “Paypal Europe S.à.r.l. et Cie. SCA”). Now the merchant happened to sell products from Cuba (I think it was cigars but I’m not sure). Selling Cuban products is completely normal and legal in Germany.
But then, the aforementioned payment processor suddenly contacted the merchant and claimed that the merchant had to remove certain products from their online shop. Their reasoning was that Germany-based merchants were not allowed to sell cuban products because selling products from Cuba is illegal under US legislation and US legislation applies to Luxembourg-based banks which is why German merchants are not allowed to sell Cuban products.
And they even wrote that they wouldn’t be satisfied if the merchant ceased to process payments for Cuban product through PayPal. No. They would have needed to remove Cuban products from their store altogether.
The merchant decided to stop accepting PayPal payments due to this incident.
(It later turned out that PayPal’s behavior in this case was in violation of EU law.)
Ooops, I wanted to write “a few months ago” or “some time ago”.
I should pay more attention to what I’m writing.
That one actually makes sense, since PayPal Europe is controlled by PayPal USA, and so the issue actually is that PayPal USA could get prosecuted for allowing its subordinate to break the embargo. (PayPal Europe would not have been a party to the case.) Otherwise, the embargo and similar laws would be totally pointless because any company that wanted to break them would just create a foreign subsidiary.
OTOH, it is PayPal USA’s problem to figure out how to own PayPal Europe without either company breaking any laws.
(The embargo is a stupid relic of the cold war too, but because of the importance of the cuban émigré vote in Florida (a crucial swing state), neither party is going to upset them by abolishing it.)
This…isn’t true. There’s nothing exceptional about the license. “If you wish to conduct business with a person in New york, you must meet these requirements.” The person is free to choose not to transact with citizens of New York. The Slovenia->Malaysia example is not true, a person can choose to do so freely, as long as they don’t also have business with New York. Law like this is very common.
This article is bullshit.
If you don’t want to worry about the BitLicense, then do not operate from NY and block all NY residents – it’s that simple.
As the author stated, this is a strict liability law. You can block NY users but what if they hack the system and use a proxy, vpn, p2p cdn to break that block? You are still in their eyes as criminally guilty as if you allowed access. You are responsible again to their laws and application of KYC/AML proofs before doing business with anyone out of fear they might be a NY resident and then soon American Citizen. The setup is impossible for any business to actually follow and not be in violation.
Some Americans have seemingly gotten fully indoctrinated beyond any ability to think straight.
Then again how is it even possible to know when gov agencies are not trolling the comments?
“It’s nothing short of a deliberate sabotage.”
Nah, it’s just New York showing once again that it thinks the sun rises and sets in its ass.
External companies doing traditional business in NY have often been required to submit to all sorts of wacky, extra rules and restrictions “to ensure the protection of the citizens of NY.” The volume of trade available can make doing business in NY suffuciently alluring to lead businesses to comply. However, these are stick-and-bricks businesses or at least those which need physical addresses subject to legal service by NY. If BC-ers can’t find ways around that model, well, you know.
Some seed ideas for solutions are:
1) figure how to exchange BC strictly on the down-low, i.e., below any radar NY has the technical capacity to monitor;
2) establish out-of-state, physical, drop-box alternatives similar to snail-mail services – purchase from those addresses, and have forwarding of deliveries from the drop-boxes to actual NY addresses;
3) refuse any sort of BC trade that NY can detect in a fashion their laws would attempt to regulate.
NY is accustomed to believing it can set the rules for anyone who transacts business with citizens of NY. Let’s see the BC community prove NY wrong.
I think the greatest risk to bitcoin is not regulation, that is doomed to fail, though it can shut off or restrict the means of transfering local fiat currency into bitcoin.
The biggest risk is the likes of the fed continually doing a pump and dump, buying large amounts of bit coin (or raiding sites and exchanges) and then destablising its value by dumping on the market.