Privacy and Security on the Internet

By Thomas Guzman*

I. Introduction

The Internet has changed how people get information, purchase goods, and interact with one another.  The Internet has been labeled a human right by the United Nations,[1] and Hilary Clinton has identified Internet freedom as a core value in line with freedoms of expression.[2]  Governments have struggled with questions about how to regulate the Internet.  Lately, the Internet regulatory debate has centered around privacy on the web and security on the web.  The two debates are more inextricably intertwined than may appear at first glance.  Can there be complete privacy on the Internet while maintaining enough cyber awareness to ward off potential threats?

II. Background

In a recent New York Times article, Howard E. Shrobe, a computer science professor at the Massachusetts Institute of Technology, is quoted as saying, “[t]he software we run [on the internet], the programming language we use, and the architecture of the chips we use haven’t changed much in over 30 years….[e]verything [on the internet] was built with performance, not security, in mind.”[3]

Since Edward Snowden released troves of information shedding light on the National Security Agency (NSA) data collection methods, privacy on the internet has been a much discussed topic.  Concerns center on governmental activity monitoring their own citizens’ data in the United States.

Prior to Edward Snowden’s disclosures, the Obama administration had already begun examining policy solutions to use data gathered from government entities to protect U.S. critical infrastructure for national security purposes.[4]

A. Snowden Sparks a Debate on Privacy

In 2013, a former contractor for the NSA, Edward Snowden, released thousands of documents to the media, giving the public a look into the secretive practices of the NSA.[5]  Snowden’s leaks showed the breadth and depth of NSA data collecting practices on both foreign nationals and U.S. citizens located domestically.  Snowden cited civil liberties as his primary motive for disclosing classified information.[6]  If Snowden wanted to spark a public debate on the merits of government data collection practices, he was certainly successful.

Following Snowden’s leaks, James R. Clapper, Director of National Intelligence, apologized for previously lying to Congress.  When asked if the NSA collected any type of data on millions of Americans, Clapper replied “no, sir.”[7]  U.S. District Court Judge Richard Leon said that the agency’s controversial program appears to violate the Constitution’s Fourth Amendment, which protects Americans against unreasonable searches and seizures.[8]  The program collects records of the time and phone numbers involved in every phone call made in the U.S., and allows that database to be queried for connections to suspected terrorists.  “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon, a George W. Bush appointee, in the ruling.[9]  The Supreme Court denied a writ of certiorari to hear the case.[10]

A White House-appointed review panel recommended that the government cease storing call data on hundreds of millions of Americans.[11]  President Obama acknowledged the dialogue surrounding NSA data collection and civil liberties arose at least in part due to Snowden’s disclosures.[12]

Snowden’s disclosures also raised the issue of privacy on the Internet abroad.  Brazilian President Dilma Rousseff championed legislation in her home country that has been touted as an internet bill of rights which limits the metadata that can be collected on Brazilians and promotes access to the Web.[13]

Whether or not the effects of Snowden’s disclosures are positive or negative may be one of opinion.  What cannot be undermined, however, is the rise in awareness of the scant privacy available on the Internet.  While Snowden’s actions led to a whiplash reaction to denounce the NSA’s overreach, which was compounded by the NSA falsely attributing averted terrorist attacks to the data collected, there are more considerations and factors weighing into the merits of monitoring web traffic.

B. Critical Infrastructure Concerns

In a 2013 report to Congress, the Department of Defense accused China of accessing and collecting data on U.S. diplomatic, economic and defense industries.[14]  U.S. accusations were corroborated by a report by Mandiant, a cyber-security firm, which came to similar conclusions.[15]  The accusations from Mandiant and the Defense Department demonstrated the vulnerability to U.S. national security interests against cyber-attacks.

Attempts to pass legislation to address cyber security concerns of private industry critical to national interests have stalled, especially after Snowden’s disclosures.[16]  As a result, President Obama signed an Executive Order in February 2013 that directed the Department of Homeland Security to create a national framework that reflects the increasing role of cyber security in securing physical assets.[17]  “Much of our critical infrastructure – our financial systems, power grids, pipelines, health care systems – run on networks connected to the internet, so this is a matter of public safety and of public health,” President Obama stated in January 2015 while introducing a renewed efforts to pass cyber security reform.[18]

C. Sony

In November 2014, Sony Pictures Entertainment suffered a massive cyber-attack that exposed terabytes of information including personally identifiable information (PII) of Sony employees, emails, and unreleased movies.[19]  On November 24, 2014, Sony became aware of the breach when an ominous red skull with a warning that Sony’s secrets were about to be released appeared on computers at Sony. It is unclear when Sony’s systems became compromised.[20]  A group calling itself “Guardians of Peace” took credit for the attack.  On December 19, 2014, the U.S. Federal Bureau of Investigations (FBI) concluded that North Korea was behind the attack on Sony.[21]

On December 16, 2014, Guardians of Peace, the group claiming responsibility for the hack, posted terrorist threats online directed at movie theaters if they played Sony’s motion picture “The Interview.”[22] The movie is a comedy, which includes a scene depicting the North Korean dictator Kim Jong Un being killed.  In June 2014, North Korea wrote to the Secretary General of the U.N. stating that the distribution of the movie should be regarded as an act of war.[23]

It should be noted however, that Norse, a private cyber security firm, also investigated the Sony hack and found no evidence of North Korea being responsible.[24]

Regardless of who is ultimately responsible, the cost of Sony’s hack is estimated to be upwards of $300 million.[25]

III. Analysis

“You have zero privacy anyway. Get over it,” the co-founder and chief executive of Sun Microsystems, Scott McNealy, said in response to growing concerns of consumer privacy in 1999.[26]  As abrasive as he was, McNealy’s inelegant comment seems eerily prescient sixteen years after the fact.  Every website a user visits is logged, and every post and online purchase leaves a trace of a user’s online presence.[27]  Every email sent via Google’s ubiquitous Gmail service is scanned for data for potential advertisers.[28]  With a $395 billion dollar company built on a principle of data mining and advertising, what chance does online privacy really stand?

Edward Snowden confirmed the notion that “big brother” is watching that existed long before 2012.  As early as 2004, when Facebook was a small website for college students to interact, there was an implicit understanding of the importance of protecting your online image.  There is no doubt that some information posted on the internet should be private, particularly in the case of credit card numbers used for online purchasers.  There is also clearly some information that is not private at all, such as public tweets, which are now being collected by the Library of Congress.[29]  Legal scholars will need to develop theories about all the information that falls between these two examples to determine what online information should be openly accessible and attributable and the information which should require a warrant to be admissible against a citizen.

Do the ends of protecting critical infrastructure from potentially massive disruptions, or preventing potential terrorist attacks through the means of meta-data collection justify NSA practices?  This must be considered while weighing the merits of online data privacy.

Despite the difficulties, online anonymity may be a winning bargain for privacy advocates and policy makers.  Protecting the U.S. economy and national security are goals too large to completely cease metadata collection, but with clear guidelines in place anonymity can be maintained until there is an established need to identify a person of interest.

As Dr. Shrobe stated, the Internet was built with performance in mind not security, so when the need to identify potential persons of interests arises there should be clear guidelines in place to authorize removing the veil of anonymity.[30]  The guidelines should serve as the basis for a preemptive warrant to protect against violations of citizen’s Due Process rights.  As the White House-appointed panel recommended, the government should cease storing call data on hundreds of millions of Americans – or at least cease storing data indefinitely.[31]

Sony is a private example of larger security concerns that come with an open Internet.  The costs Sony has incurred and the publicity of the attack may serve to raise awareness around cyber security.  A federal policy solution to protect industries not critical to national security interests may be a bridge too far, but private companies should begin to factor in cyber security as a cost of doing business in the Internet age, or risk being the next victim of a $300 million cyber-attack.

IV. Conclusion

The Internet has performed exceedingly well in connecting the world and delivering information quickly.  If the Internet was built with performance in mind, as Dr. Shrobe stated, it may be time to consider what the Internet should evolve into.  The Internet as a security-less means of accessing data may prove to be an economic costly proposition that is potentially detrimental to national security.  Private companies can hire cyber security firms to manage their networks and protect against potential cyber intrusions, but the threat of cyber-attacks will not be completely eliminated.  In order for the Internet to meet the challenges of the intricately connected world that it helped to create, it must evolve to become a safer medium through which businesses and governments operate.  Until then, we can remember McNealy’s words every time we log onto an Internet connection and “get over” our lack of privacy.  At least we can cross our fingers for anonymity on the web.

 


*J.D. Candidate, University of Illinois College of Law, expected 2017. B.A. Political Science, University of Illinois at Chicago, 2011.  I would like to thank the entire team at the Journal of Law Technology and Policy for their help on this piece.

[1] David Kravets, U.N Report Declares Internet Access a Human Right, Wired (June 3, 2011), http://www.wired.com/2011/06/internet-a-human-right/.

[2] Harichandan Arakali, Hillary Clinton Calls Internet Freedom ‘Core Value’ at Dreamforce Conference, Int’l Bus. Times (Oct. 15, 2014), http://www.ibtimes.com/hillary-clinton-calls-internet-freedom-core-value-dreamforce-conference-1705158.

[3] Nicole Perlroth, Reinventing the Internet to Make it Safer, N.Y. Times (Dec. 2, 2014, 9:25 PM), http://bits.blogs.nytimes.com/2014/12/02/reinventing-the-internet-to-make-it-safer/.

[4] President Barack Obama, Op-Ed., Taking the Cyberattack Threat Seriously, Wall St. J. (Jul. 19, 2012, 7:15 PM), http://www.wsj.com/articles/SB10000872396390444330904577535492693044650.

[5] Glenn Greenwald, Edward Snowden: The Whistleblower Behind the NSA Surveillance Revelations, Guardian (Jun. 11, 2013, 9:00 AM), http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance.

[6] U.S. Domestic Surveillance, Council on Foreign Rel. (Dec. 18, 2013), http://www.cfr.org/intelligence/us-domestic-surveillance/p9763#p3.

[7] Aaron Blake, Sen. Wyden: Clapper Didn’t Give ‘Straight Answer’ on NSA Programs, Wash. Post (Jun. 11, 2013), http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/11/sen-wyden-clapper-didnt-give-straight-answer-on-nsa-programs/.

[8] Klayman v. Obama, 957 F. Supp. 2d 1, 42 (D.D.C. 2013).

[9] Id.

[10] Klayman v. Obama, 134 S. Ct. 1975 (2014).

[11] Richard A. Clarke, et al., Liberty and Security in a Changing World, White House 161 (Dec. 12, 2013), http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf.

[12] Office of Press Secretary,  Remarks by the President on the Review of Signals Intelligence, White House (Jan. 17, 2014, 11:15 AM), http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence.

[13] Stan Lehman, Brazil Passes an Internet “Bill of Rights”, San Jose Mercury News (Apr. 23, 2014, 10:04 AM), http://www.mercurynews.com/business/ci_25621388/brazil-passes-an-internet-bill-rights.

[14] Office of the Secretary of Defense, Military and Security Developments Involving the People’s Republic of China 2013, Defense 36 (2013), http://www.defense.gov/pubs/2013_china_report_final.pdf.

[15] David Sanger, David Barboza, Nicole Perlroth, Chinese Army Unit Is Seen as Tied to Hacking Against U.S., N.Y. Times (Feb. 18, 2013), http://www.nytimes.com/2013/02/19/technology/chinas-army-is-seen-as-tied-to-hacking-against-us.html.

[16] Ryan Tracy, Cybersecurity Legislation Gets Renewed Push From Financial Firms, Wall St. J. (Nov. 13, 2013, 6:22 PM), http://blogs.wsj.com/washwire/2013/11/13/cybersecurity-legislation-gets-renewed-push-from-financial-firms/.

[17] Strengthening Security and Resilience of the Nation’s Critical Infrastructure, Department Homeland Security (Aug. 6, 2013), http://www.dhs.gov/strengthening-security-and-resilience-nation’s-critical-infrastructure.

[18] Obama Pushes Cybersecurity Legislation, N.Y. Times (Jan. 13, 2015), http://www.nytimes.com/video/us/politics/100000003448212/obama-pushes-cybersecurity-legislation.html.

[19] Todd Vanderwerff, The 2014 Sony Hacks, Explained, Vox (Jan. 20, 2015), http://www.vox.com/cards/sony-hack-north-korea/what-did-the-attackers-do; Andrew Wallenstein & Brent Lang, Sony’s New Movies Leak Online Following Hack Attack, Variety (Nov. 29, 2014, 6:37 PM), http://variety.com/2014/digital/news/new-sony-films-pirated-in-wake-of-hack-attack-1201367036/; Letter from Sony Pictures, toSony Pictures Entertainment Employees (Dec. 8, 2014), available at http://oag.ca.gov/system/files/12%2008%2014%20letter_0.pdf.

[20] Kim Zetter, Sony Got Hacked Hard: What We Know and Don’t Know So Far, Wired (Dec. 3, 2014, 4:02 PM), http://www.wired.com/2014/12/sony-hack-what-we-know/.

[21] FBI Statement: ‘We conclude that North Korean Government is Responsible’, Guardian (Dec. 19, 2014), http://www.theguardian.com/us-news/ng-interactive/2014/dec/19/fbi-statement-north-korean-government.

[22] Ben Child, Hackers Demand Sony Cancel Release of Kim Jong-Un-Baiting Comedy, Guardian (Dec. 9, 2014, 6:43 AM), http://www.theguardian.com/film/2014/dec/09/hackers-demand-sony-cancel-kim-jong-un-film-the-interview.

[23] Michelle Nichols, Bernadette Baum, North Korea Complains to U.N. About Film Starring Rogen, Franco, Reuters (Jul. 9, 2014, 1:38 PM), http://www.reuters.com/article/2014/07/09/us-northkorea-un-film-idUSKBN0FE21D20140709.

[24] Tal Kopan, U.S.: No Alternate Leads in Sony Hack, Politico (Dec. 29, 2014, 7:41 PM), http://www.politico.com/story/2014/12/fbi-briefed-on-alternate-sony-hack-theory-113866.html.

[25] Annie Lowery, Sony’s Very, Very Expensive Hack, N.Y. Mag. (Dec. 16, 2014, 5:47 PM), http://nymag.com/daily/intelligencer/2014/12/sonys-very-very-expensive-hack.html.

[26] Polly Sprenger, Sun on Privacy: ‘Get Over It’, Wired (Jan. 26, 1999), http://archive.wired.com/politics/law/news/1999/01/17538.

[27] Mary Madden, et al., Digital Footprints: Online Identity Management and Search in the Age of Transparency,  Pew Internet & American Life Project, (Dec. 16, 2007, 4:00 PM), http://www.pewinternet.org/files/old-media/Files/Reports/2007/PIP_Digital_Footprints.pdf.

[28] Samuel Gibbs, Gmail Does Scan All Emails, New Google Terms Clarify, Guardian (Apr. 15, 2014), http://www.theguardian.com/technology/2014/apr/15/gmail-scans-all-emails-new-google-terms-clarify.

[29] Library of Congress is Archiving All Of America’s Tweets, Bus. Insider (Jan. 22, 2013), http://www.businessinsider.com/library-of-congress-is-archiving-all-of-americas-tweets-2013-1.

[30] Perlroth, supra note 3.

[31] Richard A. Clarke, et al., supra note 11.

“Your Bitcoins Shall Pay the Forfeit of the Peace”: Why What the Government Chooses To Do With Seized Silk Road Bitcoins Matters

By Derek A. Dion*

I.  The Silk Road Bust

On October 2, 2013, the FBI arrested the “Dread Pirate Roberts” and shut down the Silk Road—a website that served as the Amazon.com of the criminal underworld, selling any matter of illegal drugs online.[1]  Dread Pirate Roberts, also known as Ross Ulbricht, purportedly founded the website.  Silk Road could only be accessed by using The Onion Router, or TOR, which served to anonymize the buyers and vendors on the website.  To further obscure the identities of those engaged in the black market, Silk Road did not make trades in U.S. Dollars or any other government currency.  Instead, the website dealt in Bitcoins—an electronic currency that can be used relatively anonymously.  When the FBI shut down the Silk Road, it immediately seized 26,000 Bitcoins from various vendors on Silk Road and seeks to seize another 600,000 Bitcoins from the Dread Pirate Roberts himself.[2]

“Bitcoin is an electronic form of currency unbacked by any real asset and without specie, such as coin or precious metal.”[3]  Bitcoin exchanges allow users to trade the e-currency for legal tender.  An algorithm regulates the Bitcoin supply, monitoring the peer-to-peer network and the number of coins in the system.  Bitcoins are kept in electronic wallets and accessed using a combination of public and private keypairs, effectively serving as a password.  Bitcoin’s use is questionably legal,[4] and the currency is used by a small community of dedicated users.

As Bitcoins are electronic, the FBI cannot “seize” them the way that it could traditional currency.[5]  Instead, the FBI must seize the servers that hold the wallets on Silk Road’s website or have access to the private keypairs of the illicit Bitcoins.  The FBI has yet to publicly confirm what it will do with the seized Bitcoins.  It has suggested that it may liquidate them after the judicial process is over.[6]  What the FBI chooses to do with the seized Bitcoins matters.  It will serve as a signal to the Bitcoin community regarding whether the U.S. government sees Bitcoin as contraband in-and-of itself or merely an otherwise legal asset that was illegally gained from a website that sells drugs.

This Column’s purpose is to recommend that the FBI liquidate the Bitcoins instead of destroying or freezing them.  It will begin with an examination of the statutes that govern how the FBI may use or dispose of assets under forfeiture law.  The Column will next address the effect that the Silk Road bust had on Bitcoin prices and what that suggests about how the market perceives the currency’s value.  Finally, this Column will examine the implications of government action on Bitcoin.

II.  Forfeiture Law

Statutes and regulations govern what an agency may do with seized property.  The property first goes through a forfeiture proceeding, either criminal or civil, which determines the final disposition of a citizen’s rights with regards to an asset.[7]  Once the asset has been forfeited to an agency, its disposition depends on the type of asset.  For example, when the government seizes currency, the agency has permission to keep the forfeited property for its official use.[8]  For most assets, including foreign currencies, the agency may choose whether it keeps, sells, or destroys the property.  For example, the FBI could trade seized foreign currency for U.S. Dollars through a currency exchange.  Alternatively, the FBI could destroy property for which it has no use.

For certain assets, though, Congress gives the agency less freedom.  For example, forfeited drug paraphernalia must be destroyed unless it is used for law enforcement or educational purposes.[9]  This, of course, makes sense.  It would be bad policy to allow say, the DEA, to be in the business of selling drug paraphernalia to the public, even if there is a willing market and the DEA could make money on the transaction.

Some items are treated like contraband even when they are not.  For example, an agency is not permitted to sell forfeited firearms to the public.[10]  If the agency does not sell the firearms to another agency and does not plan to keep them for law enforcement or educational purposes, they must be destroyed.  Alcohol is treated similarly.[11]  Note that firearms and alcohol, unlike drug paraphernalia, are not illegal per se.  However, Congress has concluded that it is bad policy for the government to partake in selling firearms and alcohol back to the public because those items are legally and morally controversial.

When it comes to the Silk Road Bitcoins, the FBI is free to take whatever action it likes.  The U.S. Code and Code of Federal Regulations make clear that assets not specifically excepted (such as firearms, alcohol, and drug paraphernalia) may be liquidated by an agency.  But the question is: Should the FBI publicly sell the Bitcoins back to the public when Bitcoin’s legal status as a currency remains unclear or should the FBI treat Bitcoins more like it treats non-contraband exceptions like alcohol or firearms?  To answer this question effectively, the government must first consider where the value of Bitcoin lies.

III.  What Governs Bitcoin’s Value?

The price of Bitcoin was immediately affected by the closure of Silk Road.  Prior to the shut down on October 2, Bitcoin’s price on Mt. Gox,[12] one of the largest and most popular Bitcoin exchanges, was $145.70 per coin.[13]  After the FBI announced Ross Ulbricht’s arrest, the price plunged to $109.76.  However, by the end of the next trading day, the price had rebounded to $124.00.  Since then, Bitcoin’s price has begun to soar far above its open on October 2.[14]

It is easy to hazard why Bitcoin’s price initially fell.  The FBI alleged that Silk Road generated sales worth approximately 9.5 million Bitcoins compared to the approximately 11.8 million Bitcoins in circulation.  Obviously, Silk Road played a significant role in the circulation of Bitcoins in the system.  But what explains Bitcoin’s recovery after the crash?  Here are three potential answers:

A.  Users Believe Bitcoin’s Legal Status Is Stable

One reason Bitcoin crashed may be the assumption that the FBI would declare Bitcoin illegal after it shut down Silk Road.  In fact, the FBI has done the opposite.  By suggesting it may liquidate the Bitcoins, the FBI sends a signal that it does not consider Bitcoin contraband.  The recovery could be due to the fact that the FBI had an opportunity to declare Bitcoin illegal and did not.  One of the main reasons Bitcoin is unstable as a currency is the market’s concern that the currency may be considered illegal.

B.  Bitcoin Has Value Beyond Criminal Activity

Another view of the crash is premised on the notion that Bitcoin’s primary value is fostering illegal activity.  When Silk Road was shut down, it destroyed a major source of value for Bitcoin, thus causing a drop in price.  However, if this premise was true, what explains the recovery in price?

There is no doubt that Bitcoin has vast potential for advancing criminal behavior.[15]  But if the market truly had believed that Bitcoin’s value was its capacity for criminal behavior, its price would have gone down with Silk Road’s closure and would likely have remained there.  But instead, the recovery suggests that the market believes in value beyond illegal activity.  And if that is true, removing Silk Road creates separation between Bitcoin and clear, well-known illegal behavior.

C.  Supply Is Restricted

The final theory explaining Bitcoin’s recovery relies on supply and demand.  The FBI may end up removing approximately 625,000 Bitcoins from the marketplace.  As noted above, there are approximately 11 million Bitcoins in existence.  Therefore, the FBI could remove as much as five or six percent of the entire market of Bitcoins.  Thus, by reducing the supply of Bitcoins in the system, one would expect the price to go up.

These three explanations should inform government action.  The FBI must understand that the market may see value in Bitcoin beyond its criminal uses, the volatility of Bitcoin can be quelled by regulating e-currency without outlawing them, and the FBI has seized enough currency to affect prices.

IV.  What Government Action “Says” to the Market

No matter how the FBI decides to dispose of the seized Bitcoins, it will telegraph a message to the Bitcoin market.  Some will argue that the FBI may not mean to “say” anything with an action, but that is not the point.  No matter what the FBI does, the niche community of Bitcoin users will interpret its action as a statement on the legitimacy and viability of the currency.  The FBI has three options: sell the Bitcoins, destroy the Bitcoins, or keep the Bitcoins.

A.  Option 1: Sell

The FBI could trade the Bitcoins for U.S. Dollars on an exchange.  This option communicates to the market that the FBI does not classify Bitcoin as contraband and demonstrates non-active acceptance of the currency.  But a massive, unstructured sell-off will cause price fluctuations to an already unstable currency.  Also, the FBI could face criticism for liquidating Bitcoin if it must use exchanges that are generally unregulated.[16]

B.  Option 2: Destroy

The FBI’s second option is to destroy the seized Bitcoins.  This signals to the market that the FBI views Bitcoin as contraband or semi-contraband (such as liquor or guns).  It also wastes millions of dollars that the FBI could claim for the seizure.  Additionally, as a practical matter, the Bitcoin system is designed to recognize coins in the system and accordingly release new coins at a particular decreasing rate.  In effect, destroying a significant number of coins will simply cause the system to recognize the loss and adapt accordingly.

C.  Option 3: Keep

Finally, the FBI could keep the Bitcoins indefinitely.  Such a gesture would signal to the market that the government is either planning on keeping the Bitcoins to manipulate the market, it plans on eventually seizing all Bitcoins in the system, or it is simply unsure of what it should do.  In either case, this option would leave the Bitcoin market unsettled as it waits to see what the FBI will do.

V.  Recommendation: “Sell”

The FBI should follow through with its earlier comment and liquidate the seized Bitcoins at the end of judicial proceedings.  This author has argued before that Bitcoin should not be treated as contraband per se, and, instead, federal and state governments should pursue viable regulation, particularly of the Bitcoin exchanges.[17]  The goal should be a stable currency used for purposes outside illegal behavior.  To encourage this, the FBI should publicly announce a structured cash-out of the Bitcoin, so as to disturb the market as little as possible.  It should also only deal with exchanges that are licensed as money service businesses and presently comply with FinCEN.  Destroying the Bitcoins wastes value and unnecessarily treats the coin as contraband.  Keeping the seized coins unsettles a nascent and niche market that the government should instead work to stabilize.  This proposal gives the FBI the opportunity to capture the value that it seized from the Silk Road bust, while also signaling to the market that the government seeks to create a stable and legal Bitcoin marketplace.

 


* Derek Dion is in the final year of a joint-degree JD/MBA program at University of Illinois. He thanks the Illinois Journal of Law, Technology & Policy for their willingness to publish a follow up Bitcoin piece.

[1] Andy Greenberg, End of the Silk Road: FBI Says It’s Busted the Web’s Biggest Anonymous Drug Black Market, Forbes (Oct. 2, 2013, 12:35 PM), http://www.forbes.com/sites/andygreenberg/2013/10/02/end-of-the-silk-road-fbi-busts-the-webs-biggest-anonymous-drug-black-market/.

[2] Alex Hern, FBI Struggles to Seize 600,000 Bitcoins from Alleged Silk Road Founder, Guardian (Oct. 7, 2013, 6:31 AM), http://www.theguardian.com/technology/2013/oct/07/fbi-bitcoin-silk-road-ross-ulbricht.

[3] SEC v. Shavers, No. 4:13-CV-416, 2013 WL 4028182, at *1 (E.D. Tex. Aug. 6, 2013).  The criminal case against the Dread Pirate Roberts is United States v. Ulbricht, 13-mg-023287 (S.D.N.Y. 2013), and the civil forfeiture case is United States v. Ulbricht, 13-cv-06919 (S.D.N.Y. 2013).

[4] I have written about Bitcoin more extensively in another article that addressed legal and regulatory challenges.  See generally Derek A. Dion, I’ll Gladly Trade You Two Bits on Tuesday for a Byte Today: Bitcoin, Regulating Fraud in the e-Conomy of Hacker-Cash, 2013 U. Ill. J.L. Tech. & Pol’y 165.

[5] Adam Gabbat & Dominic Rushe, Silk Road Shutdown: How Can the FBI Seize Bitcoins?, Guardian (Oct. 3, 2013, 9:40 AM), http://www.theguardian.com/technology/2013/oct/02/bitcoin-silk-road-how-to-seize.

[6] Kashmir Hill, The FBI’s Plan for the Millions Worth of Bitcoins Seized from Silk Road, Forbes (Oct. 4, 2013, 3:16 PM), http://www.forbes.com/sites/kashmirhill/2013/10/04/fbi-silk-road-bitcoin-seizure/.

[7] See 18 U.S.C. § 981 (2006) (civil); 18 U.S.C. § 982 (criminal).

[8] 40 U.S.C. § 1306(c).

[9] 21 U.S.C. § 863(c).

[10] 26 U.S.C. § 5872.

[11] 26 U.S.C. § 5688(a)(2).

[12] Bizarrely, Bitcoin has different prices on different exchanges, which would seem to lead to an easy arbitrage opportunity.  However, the differing prices may depend on the liquidity of the exchange.  Donald Marron, Do Bitcoins Violate a Fundamental Economic Law?, Christian Sci. Monitor (Sept. 3, 2013), http://www.csmonitor.com/Business/Donald-Marron/2013/0903/Do-bitcoins-violate-a-fundamental-economic-law.

[13] Alex Hern, Bitcoin Price Plummets After Silk Road Closure, Guardian (Oct. 3, 2013, 11:41 AM), http://www.theguardian.com/technology/2013/oct/03/bitcoin-price-silk-road-ulbricht-value.

[14] Emily Spaven, Bitcoin Price Soars to Highest Level Since April Bubble, CoinDesk (Oct. 21, 2013, 5:53 PM), http://www.coindesk.com/bitcoin-price-soars-highest-level-since-april-bubble/.

[15] Dion, supra note 4, at 183–87.

[16] For example, Mt. Gox’s Dwolla account was seized by the Department of Homeland Security via court order from the District of Maryland for operating as a money-transmitting business without a license.  Vitalik Buterin, MtGox’s Dwolla Account Seized for Unlicensed Money Transmission, Bitcoin Mag. (May 16, 2013), http://bitcoinmagazine.com/4641/mtgoxs-dwolla-account-seized/.  Mt. Gox later received a money transmitter license from the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN).  Vitalik Buterin, MtGox Gets FinCEN MSB License, Bitcoin Mag. (June 29, 2013), http://bitcoinmagazine.com/5560/mtgox-gets-fincen-msb-license/.

[17] For example, by requiring exchanges to record certain personal information of those who trade through them.