Editorial

Derek Tonin

Code isn’t law, it follows the law

Dr. Craig Wright has often returned to an argument that dark coin advocates like to make, and done his best to show them how they are wrong. “Code is law,” is this idea that was explained very well by Lawrence Lessig that the Internet, and by extension, cryptocurrency, cannot be effectively regulated, so code is in fact law. There’s another argument that because code is effectively just another way of expressing speech, it can’t be regulated in the United States, which protects free speech.

Cointelegraph put this idea to the test against several U.S. legal experts, and the results might be shocking to some libertarian, dark coin fans. The overwhelming consensus is that cryptocurrency code could be interpreted as speech, but even that doesn’t free it from regulation.

Lara Nott, Executive Director of the First Ammendment Center Freedom Forum Institute, explained why even the expression of Bitcoin’s code is not inherently protected speech:

Not every type of speech is. For example, if you threaten someone’s life, or hire a hitman, you are certainly engaging in the act of speech, but the First Amendment won’t protect it. There are times when speech becomes conduct — when it’s more than just an expression of an idea, but constitutes an action — and that’s usually when the government can regulate it.

It follows then that, if crypto is being used to fund the trade of illegal drugs, or to launder money, or engage in any number of other illegal activities, the government will have the right to regulate it. Whatever “law” the code establishes comes secondary to the recognized law of the land.

That definition of when speech becomes conduct is crucial, and Alex Abdo, litigation director at the Knight First Amendment Institute at Columbia University, lays out pretty clearly why the code of cryptos can’t be considered a law at all:

Bitcoin is made up of ones and zeros, but those bits generally are not expressive, except in the way that normal currency is. For that reason, Congress very likely can regulate Bitcoin in the way it regulates any other currency — by imposing financial regulations and the like — so long as it does not violate the protections recognized for political contributions and expenditures.

This is something Bitcoin SV (BSV) developers have come to recognize, and it’s the reason why the developers of tokenized have created it to be as regulation friendly as possible. If the code doesn’t live up to the standards of regulators, and is used in ways that are against the public interest like dark coins have been found to do, there’s always a good chance the government will recognize the code as a threat and crack down on it, and that’s a good thing.

And that’s not far from the same conclusions Lawrence Lessig reached in 2000 when analyzing the idea of “Code is Law” for the Internet. While libertarians might embrace a lack of government regulation for either the internet or crypto because they trust in the law of coders, Lessig wrote:

For here’s the obvious point: when government steps aside, it’s not as if nothing takes its place. It’s not as if private interests have no interests; as if private interests don’t have ends that they will then pursue. To push the antigovernment button is not to teleport us to Eden. When the interests of government are gone, other interests take their place. Do we know what those interests are? And are we so certain they are anything better?

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