Drew Hinkes This is great — I’m so happy to see someone write on the legal issues surrounding cryptocurrency — especially someone who understands the technology and the tech policy issues surrounding it.
I agree that the central legal issue here is that the token holder has waived the right to file a claim. The significant implication here is that this extends to the regulatory landscape. I like how you pointed out the avoidance of a securities classification. Unfortunately, classification can’t really be avoided in the long-run, although they can likely steer clear of SEC action for now.
The point you are reiterating about legal claims I think is really important in the regulatory struggle to define cryptocurrency. The token holder’s inability to sue really strengthens the argument that cryptocurrency is an investment contract and will be regulated as a security by the SEC. It already fits the Howey Test pretty well and with this incident it fits the SCOTUS definition even more so. Would you agree?
Also, I would love to hear more about the possible legal repercussions for the attackers. This was really interesting with Ethereum, where “the code is law.” I’m pretty sure the law doesn’t work that way. :) I’d love to hear more about how it would work.