Legal Advice / Answering Legal Questions

[SgtSpike]

Been a few days...just bumping the thread.  I'm kind of surprised all of my questions have been serious security law / civil law type questions.  I really thought most of them would be of a criminal nature around here  

You don´t see the community spirit and, am afraid, don´t really want to be part of it.

Ciao

What does that even mean?

[Nolo]

Been a few days...just bumping the thread.  I'm kind of surprised all of my questions have been serious security law / civil law type questions.  I really thought most of them would be of a criminal nature around here  

You don´t see the community spirit and, am afraid, don´t really want to be part of it.

Ciao

What does that even mean?

Well it was meant to be offensive apparently, but I didn't really understand it either lol.  No harm no foul I guess.

[SgtSpike]

I think the criminal law is more cut-and-dry, so fewer questions about it.  People buying drugs on silk road know it is illegal - what questions would they have?  I am sure there are some, but I can't think of any myself at the moment.

People are more interested in questions regarding the economics and usage of Bitcoin itself... questions that haven't yet had the opportunity of being specifically answered in a courtroom yet.  I think that's why you get more of them based around security law / civil law instead of criminal law.

[Nolo]

I think the criminal law is more cut-and-dry, so fewer questions about it.  People buying drugs on silk road know it is illegal - what questions would they have?  I am sure there are some, but I can't think of any myself at the moment.

People are more interested in questions regarding the economics and usage of Bitcoin itself... questions that haven't yet had the opportunity of being specifically answered in a courtroom yet.  I think that's why you get more of them based around security law / civil law instead of criminal law.

True.  I might be dealing with a slightly more intelligent crowd then I'm used to in my practice as well lol.  Typically the criminal questions I get are along the lines of "Yeah I did it, but what legal grounds can I use to get off."  That's mostly what I do in criminal cases.  Just poke holes in the prosecution's argument. 

The law surrounding bitcoin usage is definitely intriguing though.  It basically requires the application of hundred(s) year old law to cutting edge modern technological and security issues.  And you nailed it.  There is about 0 actual case law on the subject.  So I can't wait until someone actually brings some of these issues to trial. 

[SgtSpike]

I think the criminal law is more cut-and-dry, so fewer questions about it.  People buying drugs on silk road know it is illegal - what questions would they have?  I am sure there are some, but I can't think of any myself at the moment.

People are more interested in questions regarding the economics and usage of Bitcoin itself... questions that haven't yet had the opportunity of being specifically answered in a courtroom yet.  I think that's why you get more of them based around security law / civil law instead of criminal law.

True.  I might be dealing with a slightly more intelligent crowd then I'm used to in my practice as well lol.  Typically the criminal questions I get are along the lines of "Yeah I did it, but what legal grounds can I use to get off."  That's mostly what I do in criminal cases.  Just poke holes in the prosecution's argument. 

The law surrounding bitcoin usage is definitely intriguing though.  It basically requires the application of hundred(s) year old law to cutting edge modern technological and security issues.  And you nailed it.  There is about 0 actual case law on the subject.  So I can't wait until someone actually brings some of these issues to trial. 

Haha, a higher class of criminal!

Here's a question for you:  What's your take on the legality of Bitcoin as a currency?  Could the US deem it illegal to use (even though they couldn't stop people from using it) as they did with other alternative currencies, like eGold and Liberty Dollars, etc?

[Nolo]

I think the criminal law is more cut-and-dry, so fewer questions about it.  People buying drugs on silk road know it is illegal - what questions would they have?  I am sure there are some, but I can't think of any myself at the moment.

People are more interested in questions regarding the economics and usage of Bitcoin itself... questions that haven't yet had the opportunity of being specifically answered in a courtroom yet.  I think that's why you get more of them based around security law / civil law instead of criminal law.

True.  I might be dealing with a slightly more intelligent crowd then I'm used to in my practice as well lol.  Typically the criminal questions I get are along the lines of "Yeah I did it, but what legal grounds can I use to get off."  That's mostly what I do in criminal cases.  Just poke holes in the prosecution's argument.  

The law surrounding bitcoin usage is definitely intriguing though.  It basically requires the application of hundred(s) year old law to cutting edge modern technological and security issues.  And you nailed it.  There is about 0 actual case law on the subject.  So I can't wait until someone actually brings some of these issues to trial.  

Haha, a higher class of criminal!

Here's a question for you:  What's your take on the legality of Bitcoin as a currency?  Could the US deem it illegal to use (even though they couldn't stop people from using it) as they did with other alternative currencies, like eGold and Liberty Dollars, etc?

Well as of right now, I see nothing illegal about the existence and use of bitcoins.  (It goes without saying that illegal acts can be engaged in with them, such as buying/selling on silkroad, using it as a way to launder other currencies, or failing to pay taxes on gains.  It is after all an asset.)  

The federal government may disagree with my analysis that I do not view anything illegal with the existence and use of bitcoins.  They clearly did with Liberty Dollars and would almost certainly attempt to make the same arguments against bitcoins if they chose to do so.  The problem is, that a bitcoin's very existence is so different in nature from that of a Liberty Dollar (which was usually an actual coin or printed paper currency).  Plus it was a whole lot easier for the feds to get to liberty dollars as they were primarily locally used and not as "virtual" as bitcoins.  The feds would not be able to disrupt bitcoins without substantial investment and effort.  

The more complicated question is could the US deem it illegal to use?  This goes into serious question of Constitutional Law.  Sure, the Congress could pass a bill that makes it illegal to trade something of value for bitcoins.  The President could then sign this bill, thus atleast temporarily making bitcoins illegal.  But, this law would (hopefully) be challenged in the courts.  This is when the real constitutional challenge would come into play.  Unfortunately, I just don't have the expertise in this area to give a full analysis of what the courts might do.  (And I'm not sure anyone does, to be honest since there is just so little precedent on the issue.)

The Securities and Exchange Commission already has a little bit of authority to make the transfer of bitcoins illegal, but as of yet, have failed to do so.  They could merely classify bitcoins as a security rather than a currency, and it would then fall squarely within their jurisdiction to regulate.  For example, they may require that only those with proper licenses could sell them.  This would almost certainly be challenged as well.

So the bottom line is: Are they illegal?  I don't think so, but the fed might.  If they are currently legal, then the government could make it illegal.  Would they?  I don't know.  Probably not until they consider it a competitive threat to the US Dollar.  If they did, would it survive a constitutional challenge?  I don't know and I don't think anyone fully does.    

[SgtSpike]

Good answers, thanks for the insight Nolo.

I keep meaning to send you a tip, but forget every time I am at the computer actually holding my coins.  I will get to it someday though, I promise. 

[Nolo]

Good answers, thanks for the insight Nolo.

I keep meaning to send you a tip, but forget every time I am at the computer actually holding my coins.  I will get to it someday though, I promise. 

Lol if I had a BTC for every time a client has told me the check is in the mail 

[SgtSpike]

Good answers, thanks for the insight Nolo.

I keep meaning to send you a tip, but forget every time I am at the computer actually holding my coins.  I will get to it someday though, I promise. 

Lol if I had a BTC for every time a client has told me the check is in the mail 

Hah, I bet!  Thing is, I hold myself to my word, and think it is despicable when others do not do the same.

I don't have a lot of money (certainly not compared to a lawyer's salary!) but I will give you a tip at least!

[Nolo]

Good answers, thanks for the insight Nolo.

I keep meaning to send you a tip, but forget every time I am at the computer actually holding my coins.  I will get to it someday though, I promise. 

Lol if I had a BTC for every time a client has told me the check is in the mail 

Hah, I bet!  Thing is, I hold myself to my word, and think it is despicable when others do not do the same.

I don't have a lot of money (certainly not compared to a lawyer's salary!) but I will give you a tip at least!

I'm just messing with you.  I appreciate your honesty.  All you have as a lawyer is your reputation.  Pretty much the same way online. 

[Dabs]

What country are you from again? United States / America? How much different is law from there and the Philippines for example? We have courts, but we do not have juries. The cases are decided by a judge. You do not get tried by 12 peers because there are no jurors.

Sometimes, you get tried in public by media, and sometimes media seems to have an effect on the judge. Also, some judges have refused certain cases because of who it involves (like some big time corrupt government official who has the means to kill the judge, which is not an uncommon event here.)

Recently we impeached our Chief Justice and appointed a new one who should sit there for the next 18 years. Some cases get special courts which are judged by Senators (like the recent impeachment of the previous Chief Justice.)

I am particularly interested in self defense and justifiable homicide, in the event it happens, while hoping it will ever happen, at least to me. An opinion on your thoughts about the 2nd amendment would be appreciated.

I have read about cases where an entire jeep was robbed, but a good samaritan killed the robber while disappearing.

[Nolo]

What country are you from again? United States / America? How much different is law from there and the Philippines for example? We have courts, but we do not have juries. The cases are decided by a judge. You do not get tried by 12 peers because there are no jurors.

Sometimes, you get tried in public by media, and sometimes media seems to have an effect on the judge. Also, some judges have refused certain cases because of who it involves (like some big time corrupt government official who has the means to kill the judge, which is not an uncommon event here.)

Recently we impeached our Chief Justice and appointed a new one who should sit there for the next 18 years. Some cases get special courts which are judged by Senators (like the recent impeachment of the previous Chief Justice.)

I am particularly interested in self defense and justifiable homicide, in the event it happens, while hoping it will ever happen, at least to me. An opinion on your thoughts about the 2nd amendment would be appreciated.

I have read about cases where an entire jeep was robbed, but a good samaritan killed the robber while disappearing.

I'll be honestly harsh.  I believe it is very difficult to have a fair criminal trial without a jury.  That is such a fundamental principle of American justice, that I have an incredibly difficult time with the idea of not having one.  

I know nothing of the judicial system in the Philippines other than what you have just told me.  So I'll move on to your next couple of questions, self-defense, justifiable homicide, and the 2nd Amendment.  I believe that the 2nd Amendment is a civil liberty the drafters of the Bill of Rights found necessary.  But this doesn't mean that this right is inviolate, and cannot have restrictions placed on it.  Just as the 1st Amendment, has restrictions (the most frequently invoked example is "You can't yell fire in a crowded theater"), so does and can the 2nd Amendment.  Clearly the Drafters did not envision fully automatic assault weapons.  Is the government within its right to ban such weapons?  In my opinion, absolutely.  Can the government restrict ownership to those it deems fit to grant a license to?  In my opinion, absolutely.  Can the government ban all firearms?  In my opinion, absolutely not.  Not until the Constitution is amended anyway, and that isn't happening anytime soon.  Now on to justification defenses.    

Justification Defenses

Self-Defense
If a person has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may use that amount of force which is reasonably necessary to prevent such harm, unless he is the aggressor.

An aggressor is one who strikes the first blow or commits a crime against the victim.  The aggressor can regain the right of self-defense in either of two ways:
1) upon complete withdrawal perceived by the other party; or
2) escalation of force by the victim of the initial aggression.

The majority view of the states is that there is no duty to retreat.  In jurisdictions that do follow a retreat rule, one need not retreat unless it can be done in complete safety, and retreat need not be made in one's home.

Defense of Others
A defendant is justified in defending another person with reasonable force only if he reasonably believes the victim had a right to use such force.  Some jurisdictions limit this defense to situations where a special relationship exists between the defendant and the victim, while other jurisdictions view the defendant as "standing in the shoes" of the person defended.

Defense of Property
Reasonable non-deadly force is justified in defending one's property from theft, destruction, or trespass where the defendant has a reasonable belief that hte property is in immeidate danger and no greater force than necessary is used.  Non-deadly force is also proper when used to re-enter real property or regain prossession of wrongfully taken personal property upon immediate pursuit.

Deadly force is that which threatens death or serious bodily harm.  Non-deadly force threatens only bodily harm.  

The use of non-deadly force is improper where a request to desist would suffice.  (Example:  "Put down my book now!"  If this would suffice, then the use of force is not allowed.  This is viewed from a reasonably prudent person standard.  What would a reasonable person believe under the circumstances?)

Deadly force may NEVER be used merely to defend property.  However, by virtue of other defenses (self-defense, defense of others), deadly force may be used where unlawful interference with property is accompanied by a threat of deadly force or where the defender reasonably believes an entry will be made or attempted in his home by one intending to commit a felony.  

Law Enforcement Defenses
Police:  A police officer may use that amount of non-deadly force that he reasonably believes necessary to effect a lawful arrest or prevent the escape of the arrestee.  Deadly force may not be used to arrest or prevent the escape of a misdemeanor offender.  A police officer may use deadly force to prevent the commission of a dangerous felony or to effectuate an arrest where it is reasoanbly believed the person has committed a felony and the force is reasonably necessary to effectuate the arrest.  

Private Citizen: A private citizen is privileged to use that amount of non-deadly force that reasonably appears necessary to prevent the commission of a felony or a misdemeanor amounting to a breach of the peace.  A private citizen may use non-deadly force to make an arrest if the crime was in fact committed and he reaosnably believes the person against whom he uses the force committed the crime.  A private citizen may use the same amount of deadly force as a police officer only if a dangerous felony is involved and the person against whom he used the force is actually guilty of the crime.  (In other words, really bad idea to try this.  Let the police do their job.  If you do it, and you make a mistake, you're going to jail.)

Resisting Unlawful Arrest
A defendant may use reasonable non-deadly force to resist an unlawful arrest.  An individual may only resist a lawful arrest by a police officer where the individual does not know that the other person is a police officer.  (Once again, just don't do it if you know it is a cop)

Necessity
Even deadly force is justified to avoid imminent injury resulting from natural forces or where an individual reasonably believes that his criminal conduct is necessary to avoid a "greater harm".  (For example, Mark kills Sam to save Jane and Jill.)  There is no defense of necessity where the defendant is at fault in creating the perilous situation.  


If this summary of the law of justification has been helpful for you, please feel free to contribute to: 15vdQBqJ3FrVWAnkPTAUERVaco2ozsn3Ss
I do quite a bit of pro bono work, and any extra I can earn online providing legal advice, allows me to spend more time during the day assisting and providing high quality legal services to the indigent and those that simply can't afford high priced attorneys.

[Maniac479]

The reason Liberty Dollars were illegal was because of their design. Specifically they had phrases and words on them that were too close to actual government currency, things like the use of the word "dollar" and "In God We Trust" and $ signs and busts of women that looked governmental, things like that. The guy that mints "physical bitcoins" could get into trouble if he made them look too similar to actual government coins.

There are lots of "local" currencies that don't use any of these phrases that are perfectly legal. Bitcoins, being virtual, don't even come close to having the same problems that Liberty Dollars did. Not only that, Liberty Dollars were part of a larger anti-government conspiracy. They were going to take down Liberty Dollars no matter what.

If the gov't wants to shut you down, they can find a reason. Silk Road might put a target on Bitcoin's back, but it seems more likely that they'd go after Silk Road first. Besides they can't shut down Bitcoins as it's widely distributed on an on international network basis. Even a trial ruling in the USA would have no jurisdiction outside the USA.

I think the criminal law is more cut-and-dry, so fewer questions about it.  People buying drugs on silk road know it is illegal - what questions would they have?  I am sure there are some, but I can't think of any myself at the moment.

People are more interested in questions regarding the economics and usage of Bitcoin itself... questions that haven't yet had the opportunity of being specifically answered in a courtroom yet.  I think that's why you get more of them based around security law / civil law instead of criminal law.

True.  I might be dealing with a slightly more intelligent crowd then I'm used to in my practice as well lol.  Typically the criminal questions I get are along the lines of "Yeah I did it, but what legal grounds can I use to get off."  That's mostly what I do in criminal cases.  Just poke holes in the prosecution's argument.  

The law surrounding bitcoin usage is definitely intriguing though.  It basically requires the application of hundred(s) year old law to cutting edge modern technological and security issues.  And you nailed it.  There is about 0 actual case law on the subject.  So I can't wait until someone actually brings some of these issues to trial.  

Haha, a higher class of criminal!

Here's a question for you:  What's your take on the legality of Bitcoin as a currency?  Could the US deem it illegal to use (even though they couldn't stop people from using it) as they did with other alternative currencies, like eGold and Liberty Dollars, etc?

Well as of right now, I see nothing illegal about the existence and use of bitcoins.  (It goes without saying that illegal acts can be engaged in with them, such as buying/selling on silkroad, using it as a way to launder other currencies, or failing to pay taxes on gains.  It is after all an asset.)  

The federal government may disagree with my analysis that I do not view anything illegal with the existence and use of bitcoins.  They clearly did with Liberty Dollars and would almost certainly attempt to make the same arguments against bitcoins if they chose to do so.  The problem is, that a bitcoin's very existence is so different in nature from that of a Liberty Dollar (which was usually an actual coin or printed paper currency).  Plus it was a whole lot easier for the feds to get to liberty dollars as they were primarily locally used and not as "virtual" as bitcoins.  The feds would not be able to disrupt bitcoins without substantial investment and effort.  

The more complicated question is could the US deem it illegal to use?  This goes into serious question of Constitutional Law.  Sure, the Congress could pass a bill that makes it illegal to trade something of value for bitcoins.  The President could then sign this bill, thus atleast temporarily making bitcoins illegal.  But, this law would (hopefully) be challenged in the courts.  This is when the real constitutional challenge would come into play.  Unfortunately, I just don't have the expertise in this area to give a full analysis of what the courts might do.  (And I'm not sure anyone does, to be honest since there is just so little precedent on the issue.)

The Securities and Exchange Commission already has a little bit of authority to make the transfer of bitcoins illegal, but as of yet, have failed to do so.  They could merely classify bitcoins as a security rather than a currency, and it would then fall squarely within their jurisdiction to regulate.  For example, they may require that only those with proper licenses could sell them.  This would almost certainly be challenged as well.

So the bottom line is: Are they illegal?  I don't think so, but the fed might.  If they are currently legal, then the government could make it illegal.  Would they?  I don't know.  Probably not until they consider it a competitive threat to the US Dollar.  If they did, would it survive a constitutional challenge?  I don't know and I don't think anyone fully does.    

[Nolo]

The reason Liberty Dollars were illegal was because of their design. Specifically they had phrases and words on them that were too close to actual government currency, things like the use of the word "dollar" and "In God We Trust" and $ signs and busts of women that looked governmental, things like that. The guy that mints "physical bitcoins" could get into trouble if he made them look too similar to actual government coins.

There are lots of "local" currencies that don't use any of these phrases that are perfectly legal. Bitcoins, being virtual, don't even come close to having the same problems that Liberty Dollars did. Not only that, Liberty Dollars were part of a larger anti-government conspiracy. They were going to take down Liberty Dollars no matter what.

If the gov't wants to shut you down, they can find a reason. Silk Road might put a target on Bitcoin's back, but it seems more likely that they'd go after Silk Road first. Besides they can't shut down Bitcoins as it's widely distributed on an on international network basis. Even a trial ruling in the USA would have no jurisdiction outside the USA.

I think the criminal law is more cut-and-dry, so fewer questions about it.  People buying drugs on silk road know it is illegal - what questions would they have?  I am sure there are some, but I can't think of any myself at the moment.

People are more interested in questions regarding the economics and usage of Bitcoin itself... questions that haven't yet had the opportunity of being specifically answered in a courtroom yet.  I think that's why you get more of them based around security law / civil law instead of criminal law.

True.  I might be dealing with a slightly more intelligent crowd then I'm used to in my practice as well lol.  Typically the criminal questions I get are along the lines of "Yeah I did it, but what legal grounds can I use to get off."  That's mostly what I do in criminal cases.  Just poke holes in the prosecution's argument.  

The law surrounding bitcoin usage is definitely intriguing though.  It basically requires the application of hundred(s) year old law to cutting edge modern technological and security issues.  And you nailed it.  There is about 0 actual case law on the subject.  So I can't wait until someone actually brings some of these issues to trial.  

Haha, a higher class of criminal!

Here's a question for you:  What's your take on the legality of Bitcoin as a currency?  Could the US deem it illegal to use (even though they couldn't stop people from using it) as they did with other alternative currencies, like eGold and Liberty Dollars, etc?

Well as of right now, I see nothing illegal about the existence and use of bitcoins.  (It goes without saying that illegal acts can be engaged in with them, such as buying/selling on silkroad, using it as a way to launder other currencies, or failing to pay taxes on gains.  It is after all an asset.)  

The federal government may disagree with my analysis that I do not view anything illegal with the existence and use of bitcoins.  They clearly did with Liberty Dollars and would almost certainly attempt to make the same arguments against bitcoins if they chose to do so.  The problem is, that a bitcoin's very existence is so different in nature from that of a Liberty Dollar (which was usually an actual coin or printed paper currency).  Plus it was a whole lot easier for the feds to get to liberty dollars as they were primarily locally used and not as "virtual" as bitcoins.  The feds would not be able to disrupt bitcoins without substantial investment and effort.  

The more complicated question is could the US deem it illegal to use?  This goes into serious question of Constitutional Law.  Sure, the Congress could pass a bill that makes it illegal to trade something of value for bitcoins.  The President could then sign this bill, thus atleast temporarily making bitcoins illegal.  But, this law would (hopefully) be challenged in the courts.  This is when the real constitutional challenge would come into play.  Unfortunately, I just don't have the expertise in this area to give a full analysis of what the courts might do.  (And I'm not sure anyone does, to be honest since there is just so little precedent on the issue.)

The Securities and Exchange Commission already has a little bit of authority to make the transfer of bitcoins illegal, but as of yet, have failed to do so.  They could merely classify bitcoins as a security rather than a currency, and it would then fall squarely within their jurisdiction to regulate.  For example, they may require that only those with proper licenses could sell them.  This would almost certainly be challenged as well.

So the bottom line is: Are they illegal?  I don't think so, but the fed might.  If they are currently legal, then the government could make it illegal.  Would they?  I don't know.  Probably not until they consider it a competitive threat to the US Dollar.  If they did, would it survive a constitutional challenge?  I don't know and I don't think anyone fully does.    

Agreed.  I think I said all of that.   

[Dansker]

If you guys had any idea how much you should have paid for all this OP has posted so far...

I think it's great of you to offer this advice, and do it basically free. But I don't really understand why you bother, since you cannot even redeem the goodwill, since you will have to stay anonymous since you are not allowed to give this advice here as an attorney....

Anyways, carry on!

[CJGoodings]

What bitcoin needs is a league of lawyers, just incase uncle sam gets a wild hare up his ass and decides go all out guns ablazin'. When the day comes, and it will, we will need a collection of legal representatives to go at bat for bitcoin, which the community could fund (and its for damn sure they will donate if they want their precious bitcoins to keep their value).

As for the talk of constitutionality, being a fellow U.S citizen we both know our government, with its all knowing unchallenged wisdom, has already shat all over our constitution time and time again. All it takes is the words "national security" or "funding terrorist organizations", or anything along those lines and the debate is over, the doors are closed, and the war begins.

[SgtSpike]

If you guys had any idea how much you should have paid for all this OP has posted so far...

I think it's great of you to offer this advice, and do it basically free. But I don't really understand why you bother, since you cannot even redeem the goodwill, since you will have to stay anonymous since you are not allowed to give this advice here as an attorney....

Anyways, carry on!

I know... that's why I at least sent a tip his way!

Honestly, it'd be great to have a lawyer who was quite familiar with Bitcoins, and would be willing to defend/prosecute Bitcoin-related cases in court.  Not sure if that's something you're interested in Nolo, but "specializes in Bitcoin-related cases" might be a great thing to add to your or your employer's website.

[Nolo]

If you guys had any idea how much you should have paid for all this OP has posted so far...

I think it's great of you to offer this advice, and do it basically free. But I don't really understand why you bother, since you cannot even redeem the goodwill, since you will have to stay anonymous since you are not allowed to give this advice here as an attorney....

Anyways, carry on!

I know... that's why I at least sent a tip his way!

Honestly, it'd be great to have a lawyer who was quite familiar with Bitcoins, and would be willing to defend/prosecute Bitcoin-related cases in court.  Not sure if that's something you're interested in Nolo, but "specializes in Bitcoin-related cases" might be a great thing to add to your or your employer's website.

I'm considering it.  In order to meet my ethical standards of "competency" I still feel I have a ways to go as far as education on the whole cryptocurrency type of transactions.  So don't want to go public until I feel fully qualified to handle those types of matters. 

But I am very grateful for the tip   Thank you! 

And thanks to everyone else for the kind words. 

[Nolo]

Bump!!!  

[Nolo]

I'm getting great questions from you guys in PMs.   Thanks again!