[Bitcoin-development] The legal risks of auto-updating wallet software; custodial relationships

[Peter Todd]

I was talking to a lawyer with a background in finance law the other day
and we came to a somewhat worrying conclusion: authors of Bitcoin wallet
software probably have a custodial relationship with their users,
especially if they use auto-update mechanisms. Unfortunately this has
potential legal implications as custodial relationships tend to be
pretty highly regulated.

Why is this? Well, in most jurisdictions financial laws a custodial
relationship is defined as having the ability, but not the right, to
dispose of an asset. If you have the private keys for your users'
bitcoins - e.g. an exchange or "online" wallet - you clearly have the
ability to spend those bitcoins, thus you have a custodial relationship.
However if you can trivially obtain those private keys you can also
argue you have a custodial relationship. For instance StrongCoin was
able to seize funds stolen from OzCoin¹ with a small change to the
client-side Javascript their users download from them every time they
visit the site. Portraying that as "the ability to dispose of an asset"
in a court of law would be pretty easy. Equally on a technical level
this isn't much different from how auto-updating software works.

Now I'm sure people in this audience will immediately point out that by
that logic your OS vendor is also in a custodial relationship - they
after all can push an update that steals everyones' bitcoins regardless
of what local wallet you use. But the law isn't a deterministic
algorithm, it's a political process. Circle is easy to portray as having
a custodial relationship, StrongCoin and Blockchain.info are a little
harder, Android Wallet harder still, Bitcoin Core's multi-party
deterministicly compiled releases even harder.

But ultimately we're not going to know until court cases start
happening. In the meantime probably the best advice - other than getting
out of the wallet business! - is to do everything you can to prevent
losses through malicious auto-updates. Create systems where as many
people as possible have to sign off and review an update before it has
the opportunity to spend user funds. Not having auto-updates at all is a
(legally) safe way to achieve that goal; if you do have them make sure
the process by which an update happens is controlled by more than one
person and there are mechanisms in place to create good audit logs of
how exactly an update happened.

Finally keep in mind that one of the consequences of a custodial
relationship is that some legal authority might try to *force* you to
seize user funds. StrongCoin made it 100% clear to authorities that they
and sites like them are able to seize funds at will - I won't be
surprised if authorities use that power in the future. The more
automatic and less transparent an update is, the higher the chance some
authority will lean on you to seize funds. So don't make it easy for
yourself to meet those demands.

1) https://bitcoinmagazine.com/4273/ozcoin-hacked-stolen-funds-seized-and-returned-by-strongcoin/

[Peter Todd]

Hey Peter,
What would you say to the argument: given developers have auto update
capabilities they only have the ability to *give themselves* *the ability* to
have custodial rights?

Heh, well, courts tend not to have the narrow-minded pedantic logic that
programmers do; quite likely that they'd see having the ability to give
themselves the ability as equivalent to simply having the ability. What
matters more is intent: the authors of an operating system had no intent
to have a custodial relationship over anyones' BTC, so they'd be off the
hook. The authors of a Bitcoin wallet on the other hand, depends on how
you go about it.

For instance Lighthouse has something called UpdateFX, which allows for
multi-signature updates. It also supports deterministic builds, and
allows users to chose whether or not they'll follow new updates
automatically, or only update on demand. In a court that could be all
brought up as examples of intent *not* to have a custodial relationship,
which may be enough to sway judge/jury, and certainly will help avoid
ending up in court in the first place by virtue of the fact that all
those protections help avoid theft, and increase the # of people that an
authority need to involve to seize funds via an update.

[Matt Whitlock]

Post by Peter Todd
I was talking to a lawyer with a background in finance law the other day
and we came to a somewhat worrying conclusion: authors of Bitcoin wallet
software probably have a custodial relationship with their users,
especially if they use auto-update mechanisms. Unfortunately this has
potential legal implications as custodial relationships tend to be
pretty highly regulated.
Why is this? Well, in most jurisdictions financial laws a custodial
relationship is defined as having the ability, but not the right, to
dispose of an asset. If you have the private keys for your users'
bitcoins - e.g. an exchange or "online" wallet - you clearly have the
ability to spend those bitcoins, thus you have a custodial relationship.

If you have the private keys for your users' bitcoins, then you are every bit as much the owner of those bitcoins as your users are. There is no custodial relationship, as you have both the ability and the right to spend those bitcoins. Possession of a private key is equivalent to ownership of the bitcoins controlled by that private key.

[Peter Todd]

Post by Matt Whitlock

Post by Peter Todd
I was talking to a lawyer with a background in finance law the other day
and we came to a somewhat worrying conclusion: authors of Bitcoin wallet
software probably have a custodial relationship with their users,
especially if they use auto-update mechanisms. Unfortunately this has
potential legal implications as custodial relationships tend to be
pretty highly regulated.
Why is this? Well, in most jurisdictions financial laws a custodial
relationship is defined as having the ability, but not the right, to
dispose of an asset. If you have the private keys for your users'
bitcoins - e.g. an exchange or "online" wallet - you clearly have the
ability to spend those bitcoins, thus you have a custodial relationship.

If you have the private keys for your users' bitcoins, then you are every bit as much the owner of those bitcoins as your users are. There is no custodial relationship, as you have both the ability and the right to spend those bitcoins. Possession of a private key is equivalent to ownership of the bitcoins controlled by that private key.

Posessing a private key certainly does not give you an automatic legal
right to anything. As an example I could sign an agreement with you that
promised I would manage some BTC on your behalf. That agreement without
any doubt takes away any legal right I had to your BTC, enough though I
may have have the technical ability to spend them. This is the very
reason why the law has the notion of a custodial relationship in the
first place.

Don't assume the logic you'd use with tech has anything to do with the
logic courts use.

[Matt Whitlock]

Post by Peter Todd

Post by Matt Whitlock
If you have the private keys for your users' bitcoins, then you are every bit as much the owner of those bitcoins as your users are. There is no custodial relationship, as you have both the ability and the right to spend those bitcoins. Possession of a private key is equivalent to ownership of the bitcoins controlled by that private key.

Posessing a private key certainly does not give you an automatic legal
right to anything. As an example I could sign an agreement with you that
promised I would manage some BTC on your behalf. That agreement without
any doubt takes away any legal right I had to your BTC, enough though I
may have have the technical ability to spend them. This is the very
reason why the law has the notion of a custodial relationship in the
first place.

I never signed any kind of agreement with Andreas Schildbach. I keep my bitcoins in his wallet with the full knowledge that an auto-update could clean me out. (I only hold "walking around" amounts of money in my mobile wallet for exactly this reason.) I would love it if Andreas offered me an agreement not to spend my bitcoins without my consent, but I doubt he'd legally be allowed to offer such an agreement, as that would indeed set up a custodial relationship, which would put him into all sorts of regulatory headache.

[Tamas Blummer]

Knowing the private key and owning the linked coins is not necessarily the same in front of a court.

At least in german law there is a difference between ‘Eigentum' means ownership and ‘Besitz’ means ability to deal with it.
Being able to deal with an asset does not make you the owner.

Tamas Blummer

Post by Matt Whitlock
If you have the private keys for your users' bitcoins, then you are every bit as much the owner of those bitcoins as your users are. There is no custodial relationship, as you have both the ability and the right to spend those bitcoins. Possession of a private key is equivalent to ownership of the bitcoins controlled by that private key.

[Matt Whitlock]

Post by Tamas Blummer
Knowing the private key and owning the linked coins is not necessarily the same in front of a court.
At least in german law there is a difference between ‘Eigentum' means ownership and ‘Besitz’ means ability to deal with it.
Being able to deal with an asset does not make you the owner.

So what we're telling the newbies in /r/bitcoin is plain wrong. Bitcoins *do* have an owner independent from the parties who have access to the private keys that control their disposition. That's pretty difficult to reconcile from a technological perspective.

[Peter Todd]

Post by Matt Whitlock

Post by Tamas Blummer
Knowing the private key and owning the linked coins is not necessarily the same in front of a court.
At least in german law there is a difference between ‘Eigentum' means ownership and ‘Besitz’ means ability to deal with it.
Being able to deal with an asset does not make you the owner.

So what we're telling the newbies in /r/bitcoin is plain wrong. Bitcoins *do* have an owner independent from the parties who have access to the private keys that control their disposition. That's pretty difficult to reconcile from a technological perspective.

The law concerns itself with what should be done, not what can be done.

Bitcoin the technology doesn't have a concept of "ownership" - that's a
legal notion, not a mathematical one.

[Tamas Blummer]

I am not a lawyer, just thinking loud.
I think that technology is a strong argument before court, but I suspect that it is just that, as of now.

Tamas Blummer

Post by Matt Whitlock

Post by Tamas Blummer
Knowing the private key and owning the linked coins is not necessarily the same in front of a court.
At least in german law there is a difference between ‘Eigentum' means ownership and ‘Besitz’ means ability to deal with it.
Being able to deal with an asset does not make you the owner.

So what we're telling the newbies in /r/bitcoin is plain wrong. Bitcoins *do* have an owner independent from the parties who have access to the private keys that control their disposition. That's pretty difficult to reconcile from a technological perspective.

[Justus Ranvier]

Post by Peter Todd
But ultimately we're not going to know until court cases start
happening. In the meantime probably the best advice - other than
getting out of the wallet business! - is to do everything you can
to prevent losses through malicious auto-updates. Create systems
where as many people as possible have to sign off and review an
update before it has the opportunity to spend user funds. Not
having auto-updates at all is a (legally) safe way to achieve that
goal; if you do have them make sure the process by which an update
happens is controlled by more than one person and there are
mechanisms in place to create good audit logs of how exactly an
update happened.
Finally keep in mind that one of the consequences of a custodial
relationship is that some legal authority might try to *force* you
to seize user funds. StrongCoin made it 100% clear to authorities
that they and sites like them are able to seize funds at will - I
won't be surprised if authorities use that power in the future. The
more automatic and less transparent an update is, the higher the
chance some authority will lean on you to seize funds. So don't
make it easy for yourself to meet those demands.

One suggestion you didn't mention was jurisdictional arbitrage - don't
be located in the same country as the majority of your users.

Or, from the other perspective, users should be strongly encouraged to
get their wallet software from companies/organizations not located in
the same country as them.


- --
Justus Ranvier | Monetas <http://monetas.net/>
<mailto:***@monetas.net> | Public key ID : C3F7BB2638450DB5
| BM-2cTepVtZ6AyJAs2Y8LpcvZB8KbdaWLwKqc

[Tamas Blummer]

Justus,

In contrary.

Not being in the jurisdiction of the wallet provider makes it harder for the user to reclaim funds taken by the wallet provider.
The legal hurdle to force confiscation through a wallet provider might also be lower if the target user is not domestic.

Tamas Blummer

[Justus Ranvier]

Post by Tamas Blummer
The legal hurdle to force confiscation through a wallet provider
might also be lower if the target user is not domestic.

Depending on the threat model, the incentive to force confiscation
might also be lower.

- --
Justus Ranvier | Monetas <http://monetas.net/>
<mailto:***@monetas.net> | Public key ID : C3F7BB2638450DB5
| BM-2cTepVtZ6AyJAs2Y8LpcvZB8KbdaWLwKqc

[odinn]

Um ~ "jurisdiction of wallet provider?"

If that's the (perhaps ot) bit you want to run on this thread then my
comments are:

Get out of web wallet businesses now. It's not a jurisdictional
question anymore, although I think there used to be very valid long
running debates on where it would be best to do business. Now it just
feels like you will be bouncing from one place to another -
determining where your exit is as soon as you establish a (physical)
presence, because jurisdictions sense a serious threat from the
advancement of financial cryptography as it will evolve in the next
several years. So you have to be mobile, or do something like what
they are establishing at blueseed (see http://blueseed.com which is
just off coast of San Francisco). Please perk up and don't just swipe
to delete, read the whole e-mail. There are some configurations (e.g.
the zero knowledge bit) you can do to mitigate the issues but if you
are asking users to log in and log out of a service that relies on a
web site then in the end you doom them (and any service you provide)
to mandatory storage of customer data and ultimately loss of customer
resources due to identification of the customer.

I think you need to stop quibbling about the details and just get over
it and understand that the problem of web wallet users and
corporations that serve web wallet customers being forced to give up
information constantly to governments means that web wallets are
certainly no longer a viable solution. And post-cromnibus with the
extra financial surveillance provisions now passed on 3rd party
matters, it's even worse. This is not subject to debate, it's just a
fact. Period. Web wallet corps exist now only on a model that exists
to burn the users. Convenient? Yes. But is it good for the users in
the long haul? Absolutely not. Do alternative to the web wallets
exist? Absolutely.

Back off.. Go to p2p. Stop advocating for webby solutions. In fact,
I don't think that anyone working for coinbase or bitpay should be,
anymore. I think that on principle you should withdraw and end your
employment from such services.

Core? Good. Electrum Wallet? good. Mycelium? Local Trader? Open
Bazaar? Could be better, but great. These are the kind of things we
need. No signups, avoids centralizations, no grabbing your data, no
ID collection and requirements.

As to the issue of auto-updating itself... I think the simplest answer
to this question (personally) is that (go ahead and attack me here)
there shouldn't be auto-updates... but that there should be
auto-notifications for update when (a) update is available, but that
(b) this notification should never "push" the user to update (e.g. the
notification should never say "oh hey user if you don't update by such
and such a date, your wallet will not work or satoshis will die
because of your inaction"
(stays quiet while likely 100-e-mail thread is spawned from this)

- -O

Post by Tamas Blummer
Justus,
In contrary.
Not being in the jurisdiction of the wallet provider makes it
harder for the user to reclaim funds taken by the wallet provider.
The legal hurdle to force confiscation through a wallet provider
might also be lower if the target user is not domestic.
Tamas Blummer
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bandwidth. Higher redundancy.Lower latency.Increased
capacity.Completely compliant. http://p.sf.net/sfu/gigenet
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[Roy Badami]

Post by Peter Todd
Why is this? Well, in most jurisdictions financial laws a custodial
relationship is defined as having the ability, but not the right, to
dispose of an asset.

So if I leave my window open while I'm out and there's some cash on my
desk, visible from the street, then every passer by now has a
custodial relationship with me?

Your example of a malicious software update seems more akin to a theft
like that (which is clearly not a custodial relationship) rather than
a true custodial relationship.

roy