As our society, as well as our economy, rapidly evolves into a digital format, the law must come to grips with how to account for things that did not previously exist. The advent of the internet spawned new ways to communicate, do business, and commit crimes. In the same way, electronic devices have fundamentally transformed the practice of law over the course of the last decade; briefcases have been replaced by iPads and fax machines by Microsoft Outlook. Accordingly, entirely new categories of evidence have found their way into the courtroom: emails to prove a contract was breached, digital videos to prove an assault occurred, text messages to prove a parent is unfit, and metadata embedded in digital photographs to prove the location or identity of where the photograph was taken.

Most of these intangible things can be converted into a tangible format by printing them off onto paper, but inherently intangible assets are by no means foreign concepts to the judiciary. The goodwill of a business has long been recognized as having value,¹ and digital music is now a viable commercial product.

We are currently experiencing the beginning of the next evolutionary step of our economy as blockchain technology weaves its way into the fabric of our financial and business transactions.

One of the reasons blockchain and cryptocurrencies can be difficult to understand is because they are truly unique concepts with no reference point or previously existing thing with which to compare them. Cell phones had land lines, electric vehicles had combustion engines, and digital photographs had Kodak film and Polaroids, but digitally encrypted mathematical problems created and solved by supercomputers that are utilized for financial transactions aren’t quite as intuitive.

In 2017, cryptocurrencies were thrust into the headlines, and, accordingly, into the consciousness of the general public. As our society continues to transform into a digital format, it is reasonably foreseeable that cryptocurrencies will become more commonplace in the courtroom. This article educates the reader about the basic concepts underpinning blockchain technology, explains the essential tenets of Bitcoin and other cryptocurrencies, examines the uses of smart contracts, and discusses how these assets, products, and services may soon be treated under the law. (See Sidebar, “Key Terms and Concepts.”)

Cryptocurrency and the Law

The law must continually evolve to account for new things, and it takes time for the corpus of jurisprudence to make sense of something that did not previously exist. Although blockchain technology and cryptocurrency were both invented in 2008, they have only recently begun to be implemented on a large scale. As these two separate but interrelated technologies become more enmeshed into our economy and society, it is time for lawyers and judges alike to begin building a foundation of understanding on which will evolve the structural analysis of legal issues surrounding the private, commercial, and criminal uses of cryptocurrencies.

Where It All Began

The internet is a platform on which countless applications and products have been built, such as email, social media, and online shopping, with smart phones as conduits for these products and services. Similarly, blockchain technology is a new platform on which cryptocurrencies, smart contracts, and other financial products and services are being created.

The genesis of Bitcoin and blockchain technology was in October 2008, when Satoshi Nakamoto published, on a cryptography email list, a white paper titled “Bitcoin: A Peer-to-Peer Electronic Cash System.”² In that publication, he introduced the world to blockchain technology and, simultaneously, a new unit of value called Bitcoin. He described Bitcoin as “[a] purely peer-to-peer version of electronic cash.”³ In January 2009, Nakamoto released the software on which the first units of Bitcoin were created.

The identity of Satoshi Nakamoto only contributes to Bitcoin’s ethereal nature, because it remains a mystery to this day. Theories have abounded as to the sex, age, and nationality of the person behind the screen name.⁴ Some have even postulated that Satoshi Nakamoto is actually the product of a conglomerate of individuals. Regardless of whether Satoshi Nakamoto is a person or many people, what is undeniable is that blockchain technology and cryptocurrency are very much part of our reality, and they are proving to be the next evolution in digital transactions. For example, “Ripple has licensed its blockchain technology to over 100 banks,”⁵ and in October 2017, American Express adopted Ripple’s blockchain technology.⁶

Blockchain Technology. “[F]or all of its merits, [blockchain technology] is not [entirely] a new technology.”⁷ “Rather, it is a combination of proven technologies applied in a new way. It was the particular orchestration of three technologies (the Internet, private key cryptography and a protocol governing incentivization) that made … Satoshi Nakamoto's idea so useful.”⁸ Essentially, blockchain is an open, public, decentralized ledger that records transactions between two parties in a permanent manner.

Traditional electronic payments such as credit cards, PayPal, ApplePay, and Automated Clearing House (ACH) payments move through phone lines, cellular networks, or the internet and utilize the software and hardware that is created and installed by the company that is facilitating the transaction. The same company that facilitates the transactions maintains a central ledger that keeps track of all transactions that flow through their network, software, and hardware.

By contrast, transactions sent through a blockchain enable one person or entity to send cryptocurrency directly to another person or entity without the use of a third-party intermediary. The ledger that records the transactions is public and available to all computers connected to that particular blockchain network. As a means of comparison, a similar file-sharing system, Napster, which was created in 1999, allowed users (albeit illegally) to share music directly with one another. Although Napster had no central ledger of any kind, it was a way to transfer digital files directly between two people.

There are many different blockchain networks; each one has its own unique unit of value that is tailored to a particular use. Bitcoin is one of many different cryptocurrencies. As of the time of writing, the most popular “cryptos” are (in order of market capitalization) Bitcoin, Ethereum, Ripple, Bitcoin Cash, EOS, and Stellar.⁹

How Transactions Work

In a practical sense, transferring cryptocurrencies is no different than paying bills or transferring money between accounts online or through an app on your smart phone; the process takes just a minute or two to complete (the actual transmission of funds can take anywhere from a few seconds to several days).

Technically speaking, a transaction begins when User 1 initiates a request to send cryptocurrency to User 2. This is typically done through a smart phone app or a website. The supercomputers that are connected to that particular blockchain network first validate that User 1 owns the amount of cryptocurrency requested to be transferred. Next, they validate that User 1 hasn’t previously sent or spent the currency that will be transferred. This prevents cryptocurrency from being spent more than once.

Double-spending is a problem unique to digital currencies because digital information and assets can be reproduced relatively easily. Physical currencies do not have this issue because they cannot be easily replicated, and the parties involved in a transaction can immediately verify the bona fides of the physical currency. With digital currency, there is a risk that the sender-spender could make a copy of the digital currency and send it to a merchant or another party while retaining the original.⁸ To double-spend a cryptocurrency, digital bank robbers would need to rewrite the entire blockchain, and to do that they would have to control more than half of the network’s puzzle-solving capacity.

Such a “51 percent attack” would be prohibitively expensive and complex. As of Jan. 20, 2015, Bitcoin miners had 13,000 times more combined number-crunching power than the world’s 500 biggest supercomputers.¹⁰ That collective computing power has increased exponentially in the last three years.

To prevent the value of cryptocurrencies from becoming stale, judgments must be entered in a timely manner; otherwise, subsequent evidentiary hearings will be necessary.

The large-scale thefts of cryptocurrencies that have been covered in the media in recent years were not a result of this kind of “brute force” hack. Rather, they were the result of more traditional methods of online theft: tricking someone to disclose their login information or private key, reliance on an insecure or unstable third party, someone impersonating a cryptocurrency recipient, or an “exit scam” in which individuals set up a digital wallet or exchange, confiscate all the cryptocurrency, and then claim they were hacked.¹¹

Once a majority of computers on the network confirm that User 1 owns the amount of cryptocurrency requested to be transferred and hasn’t previously spent it, the transaction is added to the public ledger as a "block" in the chain of transactions. Since there is no intermediary that controls the ledger, transactions cannot be reversed or changed in any way, because doing so would require undoing all of the blocks that came before the block being altered. This unique attribute of blockchain technology prevents the same cryptocurrency from being fraudulently transferred.

Cryptocurrencies are stored in accounts commonly referred to as wallets, which are essentially digital accounts that can be accessed by logging into a website or using a smart phone app. Unlike bank accounts, they are not insured by the FDIC. However, it does insure up to $250,000 of U.S. dollars in Coinbase wallets, if held by a U.S. citizen.¹² Most wallets are not designed to contain U.S. dollars or euros.

Each wallet is randomly assigned a unique public key that is comprised of 34 alphanumeric characters that cannot be changed. Each public key has a corresponding private key that is a series of 64 alphanumeric characters. Using the example from above, User 1 would type in or scan User 2’s public key into their request to send funds, and then User 1 would authenticate and finalize the transaction with their private key. This history of the public keys of both users on the blockchain is then reviewed and approved by multiple supercomputers connected to the blockchain network.

Creation of Cryptocurrencies

Cryptocurrencies are created in one of two ways: by issue or by mining. Some companies, through massive amounts of computer code, have created their own currency or blockchain network, such as Ethereum and Ripple. These companies simply release a fixed number of their unique units of value (“coins”) onto their networks.

Coins can also be released by the mining process. The term “mining” is misleading, because the process is nowhere near what the average person thinks of when they picture minerals being dug or blasted out of the earth. “Every ten minutes or so [supercomputers [called nodes or miners] collect a few hundred pending bitcoin transactions (a ‘block’) [from the network] and turn them into a mathematical puzzle.”¹³

“The first miner to find the solution announces it to others on the network. The other miners then check whether the sender of the funds has the right to spend the money, and whether the solution to the puzzle is correct. If enough of [the nodes on the network agree with the solution and announce] their approval, the block is cryptographically added to the ledger and the miners move on to the next set of transactions (hence the term ‘blockchain’). The miner who found the solution gets 25 Bitcoins as a reward, but only after another 99 blocks have been added to the blockchain ledger. All this gives miners an incentive to participate in the system by validating transactions.”¹⁴

Understanding the Value of Cryptocurrencies

In order to begin to understand the value of cryptocurrency, one must first ask, “Why does anything have value?” The rhetorical answer is, “Because people believe it does.” The reason a yellow-colored mineral called gold has value is because people collectively believe it does.

Why is a piece of paper produced by a slot machine with a bar code and numbers printed on it worth the stated value? Because people believe it is. Will the casino guarantee the exchange of that piece of paper for U.S. currency? In most cases, yes. Can you take that certificate to the gas station next door and trade it for fuel? No. The reason fiat currencies such as the U.S. dollar have been successful is because governments have convinced a critical mass of people that a rectangular piece of paper is worth the amount printed on the bill.

Moving on to digital transactions, if money is fraudulently transferred out of a bank account, the FDIC will put money back into that account. But what really happens? A series of digital transactions occurs and people believe they have their money back because that’s what it says on their computer screen. If you want to buy a cup of coffee with a credit card, you swipe a plastic card in an electronic device, a series of computers in different locations communicate with each other to verify available funds and complete the transaction, and then – based on the faith in that computer system – the barista hands you a cup of coffee. We have been living in a digital economy for quite a while now; in that sense, cryptocurrencies do not require a very large leap of faith.

The sequential nature of blockchain networks naturally lends itself to transactions such as recording documents that transfer ownership of real estate or vehicles, as well as maintaining medical records.

The two most common aspects of cryptocurrency that challenge the traditional notions of monetary value are 1) the absence of a centrally controlled ledger and an entity that controls all of the data, and 2) the lack of an entity that will replace or refund your money if it is stolen or if the entity that holds your money collapses. The cryptography and mathematical certainty of blockchain transactions negates the necessity of those two concepts.

Another hallmark of value is scarcity. When Satoshi Nakamoto unleashed Bitcoin, there were a total of 50 coins, and the mathematical formula would (and does) produce batches of new coins every 10 minutes. Nakamoto established a limit of 21 million Bitcoins that would ever be created. If the current rate of mining of Bitcoins sustains itself, that limit is expected to be reached around the year 2140. A total of 60 million Ether were created¹⁵ and Ripple initially created 100 billion of its coins.¹⁶

Before a thing can be valued, it must first be clearly defined. A dollar is first and foremost a form of currency and means of exchange. The American Gold Eagle, the official gold bullion coin of the United States, is a currency-asset hybrid. A Gold Eagle is used primarily as a store of value and it is regulated and traded as a commodity, but it can also be legally used as a means of exchange if two parties are willing to use it in that way.

Some cryptocurrencies will evolve into commodities, while others will become true means of exchange. As Bitcoin has ascended in value, transaction times have slowed due to a saturation of the network, government entities have begun to regulate it, and it is being treated more like a commodity. By way of comparison, while Bitcoin has become the digital cousin of gold, Litecoin is thought of as the digital cousin of silver – less valuable, with quicker transaction times, and thus more amenable as a means of exchange.

Valuing Cryptocurrency in Dissolutions of Marriage

As of the date of publication, no Wisconsin appellate court has issued an opinion that contains the word “cryptocurrency” or any variation thereof. Therefore, we must look at the existing framework of common law that defines how courts assign value to assets and commodities.

“[A] trial court is prohibited from entering a valuation of marital property not supported by evidence at trial, but the trial court, nonetheless, enjoys broad discretion in valuing marital property.”¹⁷ The trial court is entitled to believe or disbelieve the testimony of either party concerning the valuation of marital property in a dissolution proceeding, and can disbelieve expert testimony. The judicial determination of value must be an informed judgment, but fair “value” is not susceptible of determination by any precise mathematical computation.

Generally, “the assets of a marriage are to be valued and divided as of the date of the divorce.”¹⁸ However, “[s]pecial circumstances can warrant deviation from this rule.”¹⁹ Market conditions and changing economic circumstances can render assets that had been valuable months or years earlier virtually worthless in the present, and vice versa. To distribute marital property without regard to such fluctuations would be illogical. Hence, in those cases where the date of trial is not reasonably proximate to the date of the actual distribution of the marital property, the court should hold another hearing to determine the value of the marital property at the time of its division.

Essentially, blockchain is an open, public, decentralized ledger that records transactions between two parties in a permanent manner.

Cryptocurrencies have existed for approximately 10 years, but in many ways they are still in their infancy. The wild fluctuations in value they experience should become less frequent as the technology matures, acceptance grows, and regulation increases. Until then, they will continue to have extreme vacillations in value in sometimes unpredictable ways. To prevent the value of cryptocurrencies from becoming stale, judgments must be entered in a timely manner; otherwise, subsequent evidentiary hearings will be necessary.

There is no single, universally recognized entity that announces the value of cryptocurrencies. The New York Stock Exchange (NYSE) is relied on when valuing stocks or bonds. The values published by the NYSE are generally accepted by the public to be the actual, true value of the stocks listed on that exchange. In the same way, several websites have been created to track the values of cryptocurrencies. However, the three largest cryptocurrency exchanges – Coinbase, Kraken, and Bitstamp – sometimes assign slightly different values to the same cryptocurrency. A court could base its valuation of cryptocurrency on a snapshot of one of these exchanges.

In addition to its spot price, a cryptocurrency’s market capitalization (the price of a cryptocurrency multiplied by the total number of coins issued) is displayed on these exchanges. This can be a useful means of valuation, but it is not always reliable, because sometimes the number of available coins on a particular blockchain do not yet exist because they have not yet been mined or are being released slowly into the market over time.

A more specific method of proving the value of a specific crypto wallet would be a screen shot of the wallet, which will display the current value of all cryptocurrencies held in that account, just like a bank account or brokerage account. It is possible that a litigant may have developed a proprietary blockchain during the marriage. To value the technology itself, Metcalfe’s law may be helpful. While more theoretical in nature, Metcalfe postulated that the value of a network is proportional to the square of the number of the users on the network. Common examples of this law are cellular telephone networks and social media platforms, such as Instagram, Twitter, and Facebook; the more individuals who participate in the network, the more valuable the network becomes. If the blockchain that the litigant created has no users and is simply sitting on a hard drive somewhere, it may have relatively little value, but the more computers that are connected to that network and using that blockchain’s technology, the more valuable it may be.

Written Discovery

Generally, cryptocurrencies should be clearly defined. A recommended definition of cryptocurrency is the following: A digital unit of value that utilizes blockchain technology and cryptography and includes, but is not limited to, Bitcoin, Bitcoin Cash, Litecoin, Ether, Ripple, and any other digital coin, token or alt-coin.

Here are some examples of recommended requests for production of documents:

• Screen shots that display the current balance of all cryptocurrencies in each wallet, exchange, or other cryptocurrency account owned by you or any entity in which you have an ownership interest since the date of the marriage;

• A ledger of all transactions (that is, purchases and sales of cryptocurrency or exchange of cryptocurrency for goods or services) for each wallet, exchange, or account listed above;

• Copies of all bank statements that reflect transactions to or from a cryptocurrency wallet, exchange, or cryptocurrency account of any kind since the date of the marriage;

• Copies of all credit card statements that reflect transactions to or from a cryptocurrency wallet, exchange, or cryptocurrency account of any kind since the date of the marriage;

• Copies of all brokerage account statements that reflect transactions to or from a cryptocurrency wallet, exchange, or cryptocurrency account of any kind since the date of the marriage; and

• Copies of all text messages or emails that you have sent to another person or entity since the date of the marriage that discuss or pertain to any cryptocurrency owned by you at any point during the marriage (regardless of whether owned solely or jointly with another person or entity).

Here are examples of recommended interrogatories:

• List the public key for all cryptocurrency wallets or cryptocurrency accounts of any kind owned by you or any entity in which you have an ownership interest or control over (regardless of whether owned solely or jointly with another person or entity) at any point in time during the marriage;

• List all cryptocurrency wallets or accounts of any kind that you have owned (solely or jointly with another person or entity) since the date of the marriage;

• List all individual cryptocurrencies that you have purchased, sold, or otherwise transacted since the date of the marriage, the amount of each transaction, and the relevant date(s) of each transaction; and

• State the source of funds (including the name of the financial institution and relevant account numbers) that was utilized to make all purchases of cryptocurrency since the date of the marriage. This includes any account from which debt or credit of any kind, U.S. dollars, or other government currency was used to purchase or trade for cryptocurrency.

Smart Contracts

Smart contracts are digital transactions that incorporate blockchain technology in an “if-then” fashion. For example, the details of the sale of a vehicle (sales price, taxes, and fees, all of the information otherwise contained on a certificate of title, verification of funds of the buyer) could be uploaded onto a blockchain network. Once both parties certify that the vehicle has physically changed possession from the seller to the buyer, the funds are transferred and the information from the sale becomes a permanent part of the blockchain’s public ledger, everything happening instantaneously and simultaneously. Rather than placing trust in the Department of Revenue to keep accurate records that are sometimes difficult to access or view, trust would be placed in the blockchain. The only source of error would lie with the individual who is building or coding the transaction by typing inaccurate data, but even much of that information would preexist on the blockchain (previous owners, VIN, make, model, year, and possibly maintenance and accident history), making the possibility of error negligible.

Smart contracts can also implement business rules, such as transactions that take place only if two or more parties endorse them or contingent transactions that are triggered only if another transaction has been completed first.

The sequential nature of blockchain networks naturally lends itself to transactions such as recording documents that transfer ownership of real estate or vehicles, as well as maintaining medical records. Recorder or register of deeds’ offices are especially predisposed to implementation of blockchain technology, because a large part of what they do is maintain a public ledger, so it would be a relatively small step to digitize and automate the process of recording real estate documents and even marriage certificates.

Wisconsin has an electronic system for filing deeds. A logical step would be to transition to a blockchain-based system. Each county would likely need to have its own blockchain network, which may be easily implemented, although the technicalities of how that might happen are outside the scope of this article. Obviously, achieving that reality will not happen any time soon, but if Moore’s law (roughly stated: the speed of computing doubles every two years) is applied to blockchain technology in general, it will not be as far off as one might think.

Smart contracts are already gaining recognition under the law. “The governor of Tennessee [recently] signed a bill that legally recognizes blockchain data and smart contracts under state law.”²⁰ The spread of blockchain networks is bad for centralized institutions and bureaucracies, such as banks and government authorities. It is possible that the need to have documents notarized may eventually become irrelevant or redundant, because all necessary information could be embedded into the blockchain and transferred instantly and infallibly. The public ledger would also remove the need for reconciling each transaction with a notary book.

Given the increase in the hacking and theft of information from large companies such as retail stores, banks, and credit card companies, as well as governmental institutions like the U.S. Office of Personnel Management,²¹ transactions that are incapable of being modified or changed (and provide complete transparency of the public ledger) could be a good thing.

Looking to the Future

The concepts discussed in this article apply to many types of legal issues, including division of assets in divorce, the collection of money judgments, whether or not punitive damages are appropriate, whether or not to file suit against an individual, piercing of the corporate veil, and a litany of bankruptcy issues. In a profession that frequently looks to the past for guidance on current issues, lawyers must begin to expand their thinking and analysis to accommodate the implications of cryptocurrencies, and not just in the courtroom.

Receipt of electronic payments is a major variable in the area of practice management. Gone are the days when clients might pay with a traveler’s check, and the use of cash as a payment method is in steady decline. “Credit cards and other forms of electronic payments have become an integral part of our nation's commerce and the way many people prefer to pay. In 2009, credit cards officially surpassed paper check transactions in the United States.”²² American Consumer Credit Counseling conducted a survey that found “80 percent of consumers use their debit card to pay for everyday purchases such as gas, meals, and groceries.”²³ The difference between Apple Pay and credit cards is that Apple Pay does not use a tangible card to make payments; instead, all aspects of the transaction are facilitated by an iPhone.

As previously discussed, paying with a credit card, Apple Pay, and now Bitcoin are seemingly small but significant steps away from traditional methods of financial transactions and toward a fully digital economy. The full spectrum of legal professionals should endeavor to understand this relatively new development in our society and derive new methods of applying the law to this new means of currency and value.

Endnotes

¹ McReath v. McReath, 2011 WI 66, ¶ 27, 335 Wis. 2d 643, 800 N.W.2d 399.

² Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System.

³ Id. (Abstract).

⁴ L.S., Who Is Satoshi Nakamoto?, The Economist (Nov. 2, 2015).

⁵ Jeff John Roberts, Is Ripple for Real? A Closer Look at the Company Behind the Third Most Valuable Digital Currency, Fortune (Oct. 23, 2017).

⁶ Reuters, American Express Is Getting Into Blockchain-Based Payments With Ripple, Fortune (Nov. 16, 2017).

⁷ Nolan Bauerle, What is Blockchain Technology?, Coindesk.

⁸ Id.

⁹ Cryptocurrency Market.

¹⁰ L.S., How Bitcoin Mining Works, The Economist (Jan. 20, 2015).

¹¹ Jeff John Roberts, How Bitcoin Is Stolen: 5 Common Threats, Fortune (Dec. 8, 2017).

¹² How Is Coinbase Insured?, Coinbase,

¹³ L.S., How Bitcoin Mining Works, supra note 10.

¹⁴ Id.

¹⁵ ETHER The Crypto-Fuel for the Ethereum Network.

¹⁶ Selena Larson, Cryptocurrency Boom: Why Everyone Is Talking About Ripple, CNN Business (Jan. 4, 2018).

¹⁷ Tarneja v. Tarneja, 164 S.W.3d 555, 559 (Mo. App. S.D. 2005).

¹⁸ Schinner v. Schinner, 143 Wis. 2d 81, 98, 420 N.W.2d 381 (Ct. App. 1988).

¹⁹ Id.

²⁰ Nikhilesh De, Smart Contracts Now Recognized Under Tennessee Law, Coindesk (Mar. 23, 2018).

²¹ Evan Perez, FBI Arrests Chinese National Connected to Malware Used in OPM Data Breach, CNN Politics (Aug. 24, 2017).

²² Amy Porter, Get Paid Faster Than a Speeding Bullet: Accept Credit Cards, ABA GPSolo Magazine (June 29, 2017).

²³ ConsumerCredit.com, https://tinyurl.com/y2dpk7ux. “As of December 2017, 37 percent of … North America retailers” already accepted payment with Apple Pay. Statista The Statistics Portal, Digital Payment Methods That North American Retailers Accept or Plan to Accept as of December 2017, https://tinyurl.com/yxudvyg6.