If we focus only on the activity of villains, we develop a blindspot for what heroes build.
Contrary to crypto skeptics’ views, the merits of decentralization and personal autonomy align with fundamental American rights: free speech, privacy and due process.
It is easy to look at new technology with skepticism, especially when bad actors have capitalized on vulnerabilities within these emerging systems. However, wrongdoers exist in every industry, every technological sector, and are quite adept at finding holes that the good actors haven’t yet filled.
Crypto’s unique benefits play a role in strengthening core American rights. We urge crypto’s antagonists to take a closer look at the technology’s role in enhancing — not undermining — some of our vital Constitutional provisions.
The First, Fourth and Fourteenth Amendments have been integral to the development of America’s enduring ideals of individual freedom. The guaranteed protection of individual liberties — including the ability to speak freely, protect one’s privacy, be treated equally under the law and feel confident in one’s right to be heard — have led individuals from across the world to flock to America in search of a better, safer life.
The strength of this system stems from the adaptable nature of these American fundamental rights. They can adjust to the development of new technologies, new systems of communication and new ways of living our lives. The response to the novel nature of digital assets and blockchain technology should be no different.
Crypto and your freedom of expression
The First Amendment protects our right to freedom of expression, whether through art, words, music, computer code or associations. This right is strengthened when individuals can own their own expressive content. And blockchain technology makes ownership possible online.
Websites built using Web3 technology allow individuals to create and retain ownership over their entire social media presence, so that no one platform can censor their content or delete their data. Global blockchain networks allow people a protected avenue of political speech without fear of persecution.
These Web3 ideals in action stand in stark contrast to traditional financial systems, which are often controlled by those with the largest financial stakes, plagued by censorship, and tend not to be concerned with innovation or the free exchange of ideas. Political dissidents, protestors or anyone with an unpopular opinion can easily have their financial lives disrupted at the whim of overzealous bureaucrats or other elected officials. Digital assets and blockchain technology offer a lifeline to those whose voices might otherwise be silenced, empowering them to participate in a borderless and inclusive digital ecosystem.
The ideals of the open source software community also reflect the values of the First Amendment, the rights of Americans to trade ideas and information with limited barriers and restrictions.
Although computer code came into existence less than a century ago, it has become an important way in which developers express ideas and develop new technologies and systems. Source code is the language in which developers and designers share ideas about science and engineering across the globe and is even considered by some courts to be protected speech.
While the “right to code” is not found in our founding documents (how could it be?), it should be considered, in the popular imagination, as something similar to a composer’s score or sharing the spoken or written word, an issue Americans are passionate about. Rather than trying to treat code as a novel entity, crypto’s open source nature should be heralded as a test of the durability of America’s free speech protections, evolving the idea for the 21st century.
Moving away from centralization
The Fourth Amendment safeguards our privacy and security by protecting us from unreasonable searches and seizures. Open blockchain networks enhance privacy and ownership over financial and personal information in many ways.
When an individual signs up for a bank account at a traditional bank, that individual is required to provide that bank all of their important personal information. The bank may then share that individual’s transaction history with third parties, deny the individual transaction capabilities based on its own internal controls, or even decide to close the individual’s account as a response to how an individual uses their money.
Many would argue that this information sharing and oversight is unnecessarily invasive, that it is an unsafe trade-off to offer up so many important personal details to a centralized institution that may be vulnerable to a hack or general misuse of that information.
For many of us, financial transactions reflect our beliefs, associations and desires. By maintaining financial privacy, people are free to transact and express themselves as they please — they can donate to political causes they believe in, pay for services that may be taboo or restricted in their particular jurisdiction and buy products without fear of losing access to their assets.
The Fourteenth Amendment guarantees equal protection under the law and ensures that no one is deprived of life, liberty or property without due process. Crypto’s fundamental promise lies in its ability to provide the same amount of information and access to anyone with an internet connection.
Born out of the wreckage of the 2008 financial crisis — where we learned the destructive impact of centralized power in the financial system — open blockchain networks and digital assets reduce the reliance on risky centralized intermediaries. These networks ensure there are little to no meaningful barriers to entry for those who wish to participate in the global economy, evening the playing field for everyone with an internet connection. These networks also allow individuals to avoid the risk of their intermediaries closing or preventing access to their accounts.
The digital assets ecosystem, its users and its investors should not be treated differently than any other industry or technology.
Emerging technologies deserve the same protections as other, more established industries, allowing new ideas to rise or fall based on their merits — rather than on the views of unsympathetic regulators. Protecting innovation within an emerging technological field is key to this mission and is in full alignment with our fundamental rights, which adapt as new technologies emerge.
The right to free expression, privacy and due process are core American values, and our policymakers have a rare opportunity to reinforce those values by treating crypto equally and supporting the development of blockchain technology.
As Senior Counsel for Blockchain Association, Marisa helps develop and advocate for policy positions on behalf of the crypto industry as well as manages long-term legal projects and strategic litigation. Prior to joining the Association, Marisa represented corporate clients in regulatory enforcement actions, internal investigations, and civil litigation matters at Covington & Burling and O’Melveny & Myers. Marisa also served as a federal law clerk in the U.S. District Court for the Central District of California. Marisa earned her B.A. from Brandeis University, and her J.D. from Loyola Law School in Los Angeles.
Amanda serves as the DEF’s Chief Legal Officer where she leads the organization’s impact litigation and policy efforts. Prior to joining DEF, Amanda was a lawyer at Kobre & Kim, where she defended clients against criminal and regulatory investigations, government enforcement actions, and large scale litigation. Before Kobre & Kim, she served as a law clerk for the Honorable Ann M. Donnelly of the U.S. District Court for the Eastern District of New York. Prior to her clerkship, Amanda practiced at Dechert LLP in their white-collar and securities litigation group, where she defended corporations and C-suite executives in government investigations and class-action securities disputes.
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