Facing the Cryptocurrency Challenge With Existing Asset Recovery Instruments: Give Us the Tools and We Will Finish the Job
The coronavirus pandemic has caused extreme damage between 2020 and 2021. The human toll itself is staggering: the United States recently surpassed six hundred thousand COVID-19 deaths. In other parts of the world, 1.2 million lives lost across Europe, over 500,000 in South-East Asia, and more than 100,000 in Africa have contributed to an approximate worldwide total of over 4 million deaths since the beginning of the pandemic. Moreover, the genesis of new variants on different continents threatens the amazing progress made on the development of vaccines and the mass distribution of these scientific wonders throughout the world’s populations.
Even though healthcare workers, medical practitioners, and the scientific community must be praised for facing the viral threat in several hundred million infections and engineering at least six different vaccines to combat a novel virus, the community of legal practitioners has addressed the secondary effects of the world’s shut-down: battered economies and economic sectors and increased opportunities for fraudulent practices. This article will endeavour to provide a bird’s eye view of two of the most significant challenges that have emerged from the changed landscape of the post-COVID world economy: the growing ubiquity of cryptocurrencies and corresponding opportunities for their misuse. However, considering that the impacts of the catastrophes the world experienced in 2020 and 2021 are still playing out today, the consequences of economic contraction and recovery and the role of cryptocurrencies for U.S.-based legal practitioners are anything but clear and will depend largely on the motivations of a wide array of actors, ranging from federal and state governments, the ordinary consumer, and potential fraudsters seeking opportunities from the uncertainties of a changed world.
Insolvencies and Stock Market Disappointments in Early 2020 Benefitted Cryptocurrencies
The economic crisis spurred by the shutdowns in 2020 abruptly ended the longest economic expansion in U.S. history, which had been ongoing since the passing of the Emergency Economic Stabilization Act of 2008 and the American Recovery and Reinvestment Act of 2009. As a result, public company bankruptcy filings reached their highest level in the past decade, with corporations in the service and oil and gas industries leading the drive in these numbers. Moreover, given the dive in stock prices during March 2020, investors of all kinds flocked to the cryptocurrency market, while banks, money managers, and other financial entities more readily embraced digital assets like cryptocurrencies. Despite the astounding rebound in the stock market by December 2020, to say nothing about the elemental disconnect between success stories on Wall Street and the pain felt by most on Main Street, digital currencies like Bitcoin and Ether saw their value exponentially increased, 300% and 470% respectively. These sharp increases in value, albeit unstable, further incentivized the use of these virtual currencies for everything from purchasing a sandwich at Subway and for more nefarious purposes, like facilitating ransomware payments, scamming and defrauding amateur investors, money laundering, financing terrorism, or drug trafficking on the dark web.
International asset recovery and insolvency practitioners must study these trends and develop effective strategies to better serve their clients and help combat fraudulent practices worldwide. However, considering that traditional cash assets were already highly mobile, the decentralized nature of many cryptocurrencies facilitating the unregulated movement of these at even larger scales will make the illegitimately achieved gains from criminal enterprises or fraudulent transfers exponentially more difficult to find and recover. Typically, the victims of fraudulent transfers or other criminal enterprises that succeed in recovering their lost assets depend on both the ability of asset recovery practitioners to analyse, identify, and attach stolen assets within existing legal frameworks in disparate jurisdictions where scammers and fraudsters decide to hold or hide their ill-gotten gains. As has become well known, the biggest challenge for insolvency and asset recovery lawyers in cases involving digital assets like cryptocurrencies involves the dual challenge of discovering where these assets may be hidden, plus the second challenge of deploying either untested or poorly adapted legal mechanisms available throughout the world to freeze these assets.
The Cryptocurrency Angle: Still Relatively New, But Already Wreaking Havoc
Currently, many regulations acting on the exchange and use of cryptocurrencies are found at the state level. Some states, like Wyoming, have moved to facilitate the use and transaction of digital assets. For instance, the Wyoming legislature created a new type of “bank” that will serve businesses by allowing investors to deposit their digital assets. Other states have exempted cryptocurrencies from state securities laws and accepted the payment of taxes in cryptocurrency. Other jurisdictions remain apprehensive about the use of digital currencies and have either altogether prohibited the use of cryptocurrencies when paying for government services or simply warned their citizens about the risks of investing in cryptocurrency.
The federal government in the United States has yet to comprehensively address the regulation of cryptocurrency, despite apparent recognition that embracing cryptocurrencies will prove important for the nation’s future infrastructure and its role in the vanguard of the market’s development worldwide. On one hand, apprehension or unwillingness to act on cryptocurrencies is best illustrated by the Securities Exchange Commission’s (“SEC”) recent announcement that it will not address virtual currency regulation in the short term despite their meteoric rise in value and transactions. On the other hand, the Anti-Money Laundering Act of 2020 (“AML Act”) made several changes to the Bank Secrecy Act (“BSA”), through which it modified the BSA’s definitions to encompass regulation of cryptocurrency and other digital assets. The AML Act achieved these modifications by referring to cryptocurrency and digital assets as “value that substitute for currency or funds,” perhaps to cast as wide a net as possible in recognition of the highly fungible nature of the market for digital assets and cryptocurrency. Similarly, administrative action through federal agencies, like the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”), has resulted in proposed rulemaking in 2020 and 2021. For instance, FinCEN’s proposed regulation, pursuant to the aims of the BSA, seeks to establish requirements for banks and money services businesses transacting virtual currencies and other digital assets with legal tender status. New requirements under the proposed regulation would demand banks and money service businesses to submit reports, maintain records, and verify the identities of customers involved in transactions of virtual currencies and digital assets. However, FinCEN’s proposed regulation has not yet cleared the requisite administrative procedures to come into force. Meanwhile, the U.S. House of Representatives approved a bipartisan effort to legislate digital assets. If approved by the Senate and signed by the President, the Eliminate Barriers to Innovation Act of 2021 would establish a working group, composed of members of the SEC and the Commodity Futures Trading Commission (“CFTC”), tasked with facilitating collaboration between the government and the private sector and clarifying when the SEC has jurisdiction over digital assets as securities or when the CFTC would have authority when digital assets are categorized as commodities.
Nonetheless, some policymakers worry that suddenly promoting too much regulation will eliminate incentives for investors and consumers to develop the market. In the meantime, what was once a trickle of queries and consultations for asset recovery specialists relating to losses associated with digital assets (or where ill-gotten gains may have been converted into digital assets) has grown to a steady stream and portends to grow even further. To be sure, for some victims the losses are material and are causing real financial pain and damage.
What Can Courts and Practitioners Do?
Mechanisms to recover digital currencies are limited because of the very nature of cryptocurrencies. Digital currencies were created with the singular purpose of avoiding the influence of any central or official authority. For instance, cryptocurrencies are designed as a peer-to-peer electronic cash system. Cryptocurrency traders on decentralized exchanges benefit from the lack of an official entity that regulates all digital currency transactions because there is no need to confirm the credentials of other traders with a payment processor when conducting a transaction. On decentralized platforms, only a particular owner may access and dispose of their digital asset because no central authority exists that can exercise control over a particular cryptocurrency wallet to preserve or help recover ill-gotten proceeds. Meanwhile, cryptocurrency wallets hosted on centralized exchanges may be subject to government regulatory oversight, requiring wallet owners to provide identifying information. Public addresses, the equivalent of bank accounts in the digital currency world, can only be accessed and controlled by private keys linked to that address. As long as the owner of the cryptocurrency maintains their private key secret, no one and no governmental authority is able to access their funds, even in official proceedings. Consequently, the only way to access funds that have been converted into crypto assets is to gain access to the owner’s digital asset wallet with a private key.
The U.S. Federal Trade Commission (“FTC”) reports that the allure of increased anonymity in cryptocurrency transactions (as opposed to traditional cash deals) has led to a rise in scams since October 2020. According to the FTC, approximately 7,000 people have reported losses totalling more than $80 million, nearly twelve times the number of reported cases in 2019. Another increasingly popular tool in the repertoire of fraudsters and online criminals that have adopted cryptocurrency is the utilization of ransomware attacks against companies and institutions with weak IT systems. Cybersecurity has become more difficult to maintain during the coronavirus pandemic because many workers are working from home, using personal internet connections to access delicate institutional mainframes. Coupled with the benefits of decentralized digital currencies, cybercriminals are more easily able to attack weak security systems and evade law enforcement and other financial regulations when they demand payment in cryptocurrency, providing a blueprint for white-collar criminals seeking to hide assets including during and after judicial proceedings.
The Colonial Pipeline ransomware attack during May 2021 was a wakeup call for both cybercriminals and asset recovery practitioners. After Colonial paid $4.4 million in Bitcoin, the Department of Justice was able to trace the ransom money through blockchain analysis. The FBI was able to recover approximately $2.3 million of the original payment, demonstrating to the legal community that it is possible to recover assets criminally taken, even if in cryptocurrency form. Nonetheless, while clearly a victory for law enforcement, it still presents a challenge for asset recovery specialists practising primarily through civil process. It is still unclear precisely how the FBI was able to retrieve the funds from the cryptocurrency wallet containing them because the government has not revealed how it was able to obtain the private key. In private civil proceedings, insolvency and asset recovery lawyers dealing with fraudulent transfers likely will not have the international cooperation, technical resources or subpoena power available to the FBI to quickly uncover information or to freeze the cryptocurrency, much less to access cryptocurrency wallets to obtain an injunction or once a court order or judgment against fraudulent transferors has been issued.
At the pre-trial stage, asset recovery efforts face two significant challenges. First, cryptocurrency wallets on decentralized exchanges are identified only by the public address and there is no way to discover the identity of the owner of the wallet unless the exchange is required to—and does—maintain “Know Your Customer” information. Therefore, those seeking to recover stolen assets converted into digital currency and “hidden” must first conduct blockchain analysis, like the DOJ’s Ransomware and Digital Extortion Task Force efforts during the Colonial Pipeline investigation. A blockchain analysis involves reviewing the public ledger, where all cryptocurrency exchanges are recorded, to trace the transactions of the ransom payment and subsequent transactions the fraudsters use to attempt to secrete the digital assets that are the proceeds of the fraud or theft. The analysis identifies suspicious transactions that are linked with the fraudster’s attempts to disguise the flow of the cryptocurrencies. This step might prove costly for some practitioners who might not have in-house access to the necessary quality of cyber and forensics teams available to the government, forcing some practitioners dealing with a cryptocurrency hunt to outsource blockchain investigations to third-party commercial entities. Further complicating issues for international asset recovery practitioners there is a stark absence of internationally recognized rules governing the collection and handling of digital evidence. This greatly benefits cyber-criminals and fraudsters because the speed with which private asset recovery specialists and law enforcement are able to trace and gather required evidence to litigate or prosecute (as opposed to simply recovering ransom pay, like in the Colonial Pipeline situation) is likely to be slower than criminals and debtors can move and hide their assets. This is especially true given that cryptocurrency is truly global in nature, and cross-border asset recovery is dependent upon principles of comity where domestication/recognition of non-final orders may be non-existent and domestication/recognition of final orders is time-consuming and expensive. However, as with other asset recovery efforts, not all hope is lost when confronted with a sophisticated fraudster or criminal. The key thing is to identify the institutions and entities that can be compelled to produce evidence, which will allow for the trace or forensic review. This is where knowledgeable professionals and courts can assist victims seeking to uncover and recover digital assets.
Second, ensuring that a court preserves its jurisdiction over a defendant (i.e., preventing flight or further transfer and secreting of assets) and avoiding judgment-proofing tactics through unmonitored transactions presents a wholly different set of challenges for practitioners. Luckily, insolvency and asset recovery specialists can seek preliminary injunctive relief to prevent debtors from judgment-proofing tactics by inhibiting the movement of assets or can seek equitable remedies such as the naming of a trustee, receiver, or other disinterested third-party office holder to take control of a vehicle used to hold an asset or perpetuate a fraud. Additionally, courts can issue different kinds of orders, like various injunctions, worldwide freezing orders, and Spartacus orders, which can help prevent wrongdoers from further transacting ill-gotten gains.
Furthermore, the availability of these judicial tools largely depends on applicable law, which is an issue further complicated by the nature of digital assets, which makes it so that victims of cyber-criminals have a more limited ability to prevent an absconding defendant from secreting the digital assets beyond the jurisdiction with the most effective legal tools. Perhaps this area most strongly requires an international effort to recognize cross-border asset recovery operations involving cryptocurrencies. A legislative approach like the Model Law on Cross-Border Insolvency (UNCITRAL), which has promoted a coordinated legal regime that facilitates cooperation between nations in international insolvency cases, may be what is required to afford victims and asset recovery practitioners an effective way to tackle the novel practicalities of dealing with digital currency recoveries.
At the post-judgment stage, some of the instruments to recover stolen cryptocurrency assets (or those converted into digital currencies) are writs of execution, replevin, and levy as well as in personam orders compelling individuals to act with certain assets under pain of contempt However, while these tools may be powerful to recover properties and enforce money judgments, these mechanisms are difficult to use where judgment creditors are not in possession of private keys necessary to access cryptocurrency wallets or where the debtor has absconded the court’s jurisdiction with digital assets and the private keys to access them. Even where judgment debtors are threatened with contempt of court for failure to comply with judicial orders, judgment debtors fleeing U.S. jurisdictions with large amounts of digital assets may not be sufficiently motivated to comply given the ease with which they can easily move, transfer, and otherwise hide their digital wealth abroad. Amendment of statutory provisions and tools for post-judgment recovery to better address crypto-assets must be considered in the immediate future.
The Uncertainties of the Mission Require Even More Preparation
While it appears that cryptocurrencies are here to stay, providing bona fide investment opportunities to professional and amateur traders alike, as well as a regulation and law enforcement evasion tool for cybercriminals, their stability and value in the long run remains uncertain. In late May 2021, a widespread cryptocurrency crash eliminated approximately $1 trillion in market value, with Bitcoin losing close to 30% of its value. The causes of the crash, statements from Tesla’s CEO Elon Musk and crackdowns in China over use of digital currencies, strongly suggest that the market remains exceedingly sensitive to pop-culture and regulatory influences. While cryptocurrencies have increasingly become more mainstream, they are still relegated to the edges of financial systems because they are still not widely accepted as legal tender and are limited to private transactions between individuals online. However, more and more nation-states and municipalities are voicing openness to potentially accepting these digital currencies for official business. Whether cryptocurrencies will become the main form of payment for all transactions in the future is an altogether different question that remains to be comprehensively answered and may also depend on the environmental impact of the mining of cryptocurrency, which is notoriously energy-intensive. However, that does not mean that insolvency and asset recovery practitioners can afford to wait for the question to be settled. Given the current trends seen regarding the prevalence of cybercrime and its preferred method of payment, lawyers at the vanguard of fraud and cross-border asset recovery must contribute to the development of judicial tools and legislative frameworks that promote international cooperation and facilitate digital asset recovery. Developing these tools will allow the law and the courts to modernize with the times, placing cyber-crime victims, creditors, and practitioners on equal footing with online criminals, debtors, and the Internet.
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