Enabling or Crippling? The Risks of State-by-State Blockchain Laws

When governments announce the adoption of blockchain legislation, even self-professed blockchain skeptics take notice. But are blockchain-enabling statutes really necessary in many cases, and could their passage lead to some unintended results?

To date, to our knowledge, four U.S. states have passed formal blockchain legislation. Such statutes authorize the use of blockchain technology for one or more functions, for instance: to conduct commerce (Arizona and Nevada); to introduce information into evidence (Vermont); and to maintain corporate records (Delaware). No doubt other states also are contemplating and, in some cases, actively working to draft and pass legislation authorizing the use of blockchain technology for some of the same – and perhaps, myriad other – functions.

Do we need permission?

It is exciting and, in many ways, laudable that Arizona, Delaware, Nevada and Vermont have taken leadership positions with respect to blockchain technology. By passing blockchain enabling statutes, those states arguably have signaled to the public and the market their confidence in the technology and, many believe, have given their imprimatur to the technology. These statutes appear to suggest, “Go ahead and use blockchain technology. We won’t penalize you for using it. You have our permission.”

But is it necessary? Do we need U.S. state governments to give their permission for the use of blockchain technology? Have there been other times at which we have called out a specific technology and required legislation to authorize its use? Why do we think we need to do it here? Will we have to go through this one more time to authorize the use of artificial intelligence?

And, if legislation is passed in one jurisdiction, what does that say about those jurisdictions that choose not to enact similar laws? Does that omission by a particular state somehow imply that such blockchain activity is invalid, illegal or not permitted there?

Many jurisdictions likely are struggling with these very questions, namely, whether specific legislation is required to authorize the use of blockchain technology and, if so, to what extent is such legislation required and with what degree of specificity? […]

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