September 13, 2019

Digging Deeper into Blockchain Regulatory & Legislative Updates

Recently state legislatures find a slew of blockchain technology-related legislation on their desks for consideration. Many of these laws define blockchain technology, at least in part, as “an immutable record of uncensored truth.” Unfortunately, no such blockchain technology exists. In fact, three of these six words (immutable, uncensored truth) are wrong. More troubling, it remains entirely unclear what two of those three words (uncensored truth) even mean. Admittedly, this is not the first time (nor should we expect it to be the last) that law makers and regulators used terms unrecognized and unused by those building technology to define and regulate technology. Rather, the blockchain (and smart contracts) definitional difficulty is merely a symptom of a larger problem that affects most legislative and regulatory guidance drafting efforts related to emerging technology: the speed with which the technology develops and the pace at which companies experiment with different uses of the technology.  

Or, is the so called “law-lag” even really a problem? Indeed, society, including members of legislative and regulatory bodies, tends to expect technology to do more than it can achieve, at a faster pace than it can move. To what extent has this hype infected the law-making process? Which pitfalls under existing laws do new legislation and regulatory guidance alleviate? Which pitfalls do new legal rules exacerbate? How can lawyers learn to identify the difference between new legal rules that solve existing problems and new legal rules that simply create new problems? This panel will explore these and other issues at the frontier of blockchain technology and the law.

The panelists will ground the discussion by first providing a very brief overview of the technical aspects of blockchain technology. When we use the term blockchain technology, or the term distributed ledger, what do we mean specifically? What are the most commonly discussed uses of blockchain technology, and how do those uses map to the current state and federal legislative and regulatory climate? How do non-technical lawyers get up to speed sufficiently to adequately perform the required analysis? This program will offer a (very) short, introductory explanation of the technical fundamentals of blockchain technology and smart contracts that lawyers should understand in order to effectively counsel clients building products and services in the blockchain technology industry.