Perfecting Bitcoin
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GEORGIA LAW REVIEW(DO NOT DELETE) 4/27/2018 1:43 PM PERFECTING BITCOIN Kevin V. Tu* Bitcoin is still here. The price of Bitcoin rebounded— setting a record high of $19,783.21 per Bitcoin in December 2017 before dropping to a price of $8,690 per Bitcoin as of March 22, 2018. Moreover, legal and regulatory developments, like New York’s BitLicense and federal taxation of virtual currency as property, can be viewed as legitimizing its use. The normalization of virtual currency is evidenced by its increasingly mainstream applications. Virtual currency can be used as a faster and lower cost method of transferring funds domestically and internationally. A growing number of retailers now accept virtual currency as a method of payment. In addition, more and more investors are trying to capitalize on the price volatility of virtual currency by buying and selling it as a speculative investment. Recognizing the potential of this growing market of users, investment in virtual currency businesses and startups has also risen. Even traditional financial institutions and the New York Stock Exchange have invested—participating in a funding round for Coinbase that raised $75 million dollars. Putting aside the normative question of whether the normalization of virtual currency is desirable, an inescapable truth remains. Virtual currency is a present reality. It has the potential to disrupt a range of traditional industries and implicate a host of legal issues. But to date, the legal and regulatory treatment of virtual currency has been limited. Developments in * Associate Professor of Law, University of Maryland Francis King Carey School of Law. I would like to thank Professors Max Stearns, Mark Graber, C.J. Peters, and Peter Oh for their thoughtful comments. I am also grateful to workshop participants at both the University of Maryland Francis King Carey School of Law and the University of Pittsburgh School of Law for their feedback. This Article also benefited from the research assistance of Dominic Martinez. Any errors are my own. 505 GEORGIA LAW REVIEW (DO NOT DELETE) 4/27/2018 1:43 PM 506 GEORGIA LAW REVIEW [Vol. 52:505 virtual currency law have focused almost exclusively on virtual currency in the context of money transmission and the twin regulatory objectives of crime prevention and consumer protection. Outside of this space, the discussion about and implementation of an appropriate legal framework is relatively undeveloped. Secured transactions are a prime example of a significant commercial practice that is currently being affected by virtual currency— specifically, the use of virtual currency as collateral. It is increasingly likely that debtors, both individuals and organizational, will hold virtual currency. Because of this, creditors must now deal with the realities of ensuring that they have attached, perfected and have priority over a debtor’s virtual currency. If creditors are unable to navigate this process, they risk losing out on the monetary value of the virtual currency upon a debtor default. Unfortunately, the Uniform Commercial Code was not drafted with virtual currency in mind and it has not been optimized in any way to expressly account for it. Therefore, those engaged in secured transactions are in the position of having to evaluate and interpret how the existing provisions of the Uniform Commercial Code might apply to virtual currency. This Article expands the conversation by pushing beyond the confines of current developments in virtual currency law and regulation. In doing so, it considers broader commercial law implications of virtual currency. Specifically, this Article provides a solution for the present and future of virtual currency collateral under Article 9 of the Uniform Commercial Code. This Article sets forth a roadmap for dealing with the uncertainties of virtual currency collateral under Article 9 as it exists today. In addition, it advances a framework for optimizing Article 9 for virtual currency collateral by recognizing it as a distinct collateral type and creating special rules based on the concept of “control” which already applies to other collateral GEORGIA LAW REVIEW (DO NOT DELETE) 4/27/2018 1:43 PM 2018] PERFECTING BITCOIN 507 types. Since U.S. policymakers have already opted to accommodate (rather than ban) virtual currency, this Article seeks to ensure that the discussion does not overlook the commercial law implications of virtual currency. In doing so, this Article highlights the importance of and advances the development of a comprehensive and appropriately-scaled set of laws and regulations applicable to virtual currency in the United States. GEORGIA LAW REVIEW (DO NOT DELETE) 4/27/2018 1:43 PM 508 GEORGIA LAW REVIEW [Vol. 52:505 TABLE OF CONTENTS I. INTRODUCTION ................................................................... 510 II. THE U.S. RESPONSE TO BITCOIN ........................................ 518 A. FACTORS CONTRIBUTING TO VIRTUAL CURRENCY LAW AND REGULATION .................................................. 519 B. THE CURRENT LEGAL AND REGULATORY ENVIRONMENT ............................................................... 524 1. Guidance for Applying Existing Law ..................... 524 a. Tax Treatment .................................................. 525 b. Federal and State Money Transmitter Laws .... 525 c. Securities Law ................................................... 528 2. Creating New Law Specific to Virtual Currency .... 529 a. State Licensing Regimes ................................... 530 b. National Efforts to Shape State Law ................ 534 c. Limited Scope of Virtual Currency Legal Developments .................................................... 536 III. THE DISRUPTIVE POTENTIAL OF VIRTUAL CURRENCY IN SECURED TRANSACTIONS.................................................... 538 A. EXAMPLES OF VIRTUAL CURRENCY COLLATERAL ........... 541 B. BENEFITS AND CHALLENGES OF VIRTUAL CURRENCY COLLATERAL .................................................................. 544 IV. VIRTUAL CURRENCY UNDER ARTICLE 9 ............................. 545 A. COLLATERAL TYPE ......................................................... 546 B. ATTACHMENT ................................................................ 550 C. PERFECTION .................................................................. 551 D. PRIORITY ....................................................................... 552 E. BEST PRACTICES AND POTENTIAL PROBLEMS ................ 554 V. OPTIMIZING ARTICLE 9 FOR VIRTUAL CURRENCY ............... 557 A. VIRTUAL CURRENCY AS A NEW COLLATERAL TYPE ......... 557 B. CONTROL OF VIRTUAL CURRENCY .................................. 563 C. INTEGRATING CONTROL OF VIRTUAL CURRENCY INTO ARTICLE 9 ............................................................. 568 GEORGIA LAW REVIEW (DO NOT DELETE) 4/27/2018 1:43 PM 2018] PERFECTING BITCOIN 509 D. ADDITIONAL BENEFITS OF AMENDING ARTICLE 9 .......... 572 1. Identifying Collateral and Notice Filing ................ 573 2. Establishing Rights to Collateral ........................... 576 VI. CONCLUSION ....................................................................... 578 GEORGIA LAW REVIEW (DO NOT DELETE) 4/27/2018 1:43 PM 510 GEORGIA LAW REVIEW [Vol. 52:505 I. INTRODUCTION Bitcoin is described as a decentralized cryptocurrency.1 Since the first Bitcoin transaction in 2009,2 it has transcended obscurity and penetrated the public consciousness. Pop culture mentions of Bitcoin include cameos in the movie Horrible Bosses 23 and an episode of The Simpsons,4 along with tweets by Snoop Dogg and Ashton Kutcher.5 Though Bitcoin has frequently been associated 1 Bitcoin is not backed by a commodity, government, or central bank. Units of the currency are denominated in Bitcoins (not U.S. dollars or any other form of legal tender). The value of Bitcoin, then, is primarily a function of what value people assign to it on the open market and in exchange for goods, services, or fiat currency. But what makes Bitcoin truly unique is that there is no central authority charged with creating units of Bitcoin or verifying Bitcoin transactions. Units of Bitcoin are created by a process called “mining” whereby computer enthusiasts use the processing power of their computers to solve complex math problems and authenticate Bitcoin transactions. Until the pre-determined cap of 21 million Bitcoins is reached, those who engage in mining are rewarded with newly created Bitcoins, which only exist digitally. Because Bitcoin transactions are verified though the use of cryptography and the process of mining, the need for traditional third-party intermediaries like Visa or MasterCard is eliminated. Bitcoin transactions occur via the use of two keys—each user has one public key that is shared with the world and one private key that is kept secret like a password. To send Bitcoin, a transaction is initiated with the amount of the transfer encoded with the recipient’s public key. The recipient then accepts the transfer by entering the same amount encoded with his or her private key. Finally, the sender acknowledges the transfer by signing the transaction with his or her private key. Once the transaction is authorized/verified, it is recorded on a public ledger known as the “blockchain.” Bitcoin, therefore, has several perceived benefits. For example, the price of Bitcoin is insulated against inflation and government manipulations because it is created at a controlled pace. Transactions are both faster and cheaper because there is no intermediary involved.