Cryptocurrencies and Fundamental Rights

Abstract

Cryptocurrencies, like Bitcoin, raise new legal questions due to their innovative technological concepts. While academic research covers nearly all areas of the technological concepts of those currencies, legal studies focus only on a few topics. The papers which have been published so far discuss mainly economic law, tax law and financial regulations. At the same time, governments are starting to explicitly regulate cryptocurrencies in terms of anti-money-laundering (AML) and to clarify or strengthen the legal basis for prosecuting crimes in the context of cryptocurrencies. Furthermore, criminal investigation in the context of cryptocurrencies is intensifying with the rising number of Cryptocurrency related crimes. Moreover, governments should also start to consider crime prevention in the context of cryptocurrencies. AML regulation, crime prevention and prosecution have to take heed of the fundamental rights of the citizens affected. To date, legal research has not dis-cussed the relationship between AML regulation (regarding cryptocurrencies), crime prevention (in conjunction with cryptocurrencies), the prosecution of crimes involving cryptocurrencies and fundamental rights. Many future regulatory concepts will collide with the fundamental right to property of the owners of Cryptocurrency units and the freedom to pursue a trade or profession of owners and operators of exchange platforms, mining pools etc. In cryptocurrencies organized as peer-to-peer systems, the freedom of association also has to be mentioned. With particular regard to prosecution, law enforcement agencies restrict the freedom of telecommunication, data privacy (including the right to informational self-determination), freedom of expression, and the freedom of information. Whenever some of these fundamental rights are impinged upon, regulation concepts and investigation or prosecution approaches must be provided for by law and must fulfill the criterion of necessity. Further interdisciplinary research is needed to develop efficient and legit prevention as well as criminal investigation concepts.

Keywords: Cryptocurrency, Fundamental Rights, Bitcoin, European Charter of Fundamental Rights, European Convention in Human Rights, Prosecution, Anti-Money Laundering

JEL Classification: K14, K20