Smart Contract Developers May Be Held Liable by the SEC

Nick Szabo invented them but has reservations about what they’ve become. Vitalik Buterin adopted them but now regrets using their name. Dangerous when coded badly, and powerful when used intelligently, smart contracts have become a critical component of the cryptoconomy. Their code serves as the bond that glues the tokenized ecosystem together. Now, just to add further complexity, the SEC has begun monitoring smart contracts and their creators closely.

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Smart Contracts, Legal Liability and the SEC

Code has often been likened to free speech, with advocates adamant that developers should not be held liable for how their code is used. In the case of Etherdelta, the prosecution of Zachary Coburn was relatively straightforward, since he’d personally developed the smart contracts that powered the platform. In future, however, the SEC may not make a distinction between the developer of a piece of code and the end user. If the creator of a smart contract used to facilitate decentralized trading can be identified, that individual could conceivably be held liable for securities violations. As the SEC’s report notes:

More Code Brings Greater Complexity

As the cryptocurrency industry’s reliance on smart contracts increases, regulators are going to have some difficult decisions to make. Who should be held liable when an entity conducts a securities violation, for example – the trader, the operator of the decentralized platform or the developer who coded the smart contract? Even the father of smart contracts, Nick Szabo, has acknowledged that, despite being wholly digital, they are ultimately an agreement that mirrors a traditional contract, writing: “‘Smart contract’ like ‘contract’ connotes a deal between people, but a deal intermediated and incentivized by dynamic machine-interpreted rules instead of the statically recorded human-interpreted rules of a traditional contract.”

For U.S.-based developers who wish to remain free to code without worrying about legal liabilities, the only solution may be to remain anonymous. This is the approach being favored by the team behind the forthcoming Grin cryptocurrency, which makes use of Mimblewimble privacy tech. It’s also the approach taken by a certain S. Nakamoto 10 years ago upon launching his cryptocurrency. The SEC can’t prosecute whom it doesn’t know.