The Light Touch of Caveat Emptor in Crypto’s Wild West

Abstract

Innovation is the defining feature of the cryptocurrency ecosystem. If, as has been suggested, the Securities and Exchange Commission and the Commodity Futures Trading Commission are pushing blockchain out of its “Wild West” phase just ten years after it started, they may be shortchanging it by a couple of decades. The flip side of innovation is uncertainty. Blockchain is breaking down old legal categories, redefining what we thought were the conceptual limits of property. A fuller understanding of the impact uncertainty has on all participants in the blockchain ecosystem—including coin purchasers, whose share of responsibility to protect themselves is frequently overlooked—could help clarify how the criminal law should come in at this stage. This short paper recommends a light-touch approach to crypto enforcement that would help U.S. tech innovators keep pace with global competition. Such an approach would, for the time being, treat crypto products just like traditional products. It would impose minimal regulatory standards beyond those ordinarily in place to protect consumers from deception and abuse. It would, above all else, eschew new criminal law or creative use of existing criminal law.

Keywords: Cryptocurrency, Insider Trading, White-Collar Crime, Blockchain, Tokens, Securities, Commodities, Currency, Innovation, Technology