Thursday, July 28, 2016

Fitting square pegs into bicycles

To this non-lawyer, jurisprudence often seems to be metaphor mongering/mangling/wrangling -- as in Judge Easterbrook's contention that that there was no more a “law of cyberspace” than there was a “Law of the Horse" ("Cyberspace and the Law of the Horse" (1996); see also Larry Lessig's "The Law of the Horse: What Cyberlaw Might Teach").

From a recent CS Monitor comes the latest in this inexhaustible genre: "Is bitcoin money? Are Airbnbs hotels? Why courts have trouble deciding."

A couple of excerpts:

A Florida circuit-court judge’s Monday ruling that bitcoin is not money is the latest addition to a confusing jumble of definitions and regulations that have attempted to classify and control digital currency. . . . Since Florida doesn’t have a law specific to digital, or virtual, currency, applying laws that regulate money-service businesses to bitcoin transactions “is like fitting a square peg in a round hole," Pooler wrote.
... 
... jamming pegs into ill-suited holes is just what some law enforcement, tax and other regulators across the globe are trying to do as they struggle to apply traditional laws to technology innovations that defy them.

David Bach and Jonathan Sallet wrote a fascinating article about this a decade ago in FirstMonday: "The challenges of classification" (2005).

Perhaps Sallet will revisit this topic when he leaves the FCC. Do we need a new way to extend the applicability of law, given the breakneck introduction of new concepts?  For example, perhaps one should focus on use of the technology, not the technology as such. Privacy is trying this, as the community experiments with moving from notice & consent to use & disclosure. Here's another excerpt from the CS Monitor story, quoting Marco A. Santori, a partner specializing digital currency at a NYC law firm:

"Bitcoin is not a currency, it’s not a commodity, it’s a computer protocol. . . . the computer protocol is being used as money, it should be regulated as money. If it is being used a security, it should be regulated as security. If it is being used a commodity or derivative or a dessert topping, it should be regulated as such."

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