Document Type

Article

Publication Date

2015

Abstract

This essay discusses the requirements for the long-term acceptance of virtual currency as a financial medium of exchange by examination of fundamental criteria associated with the historical development of common tender and selected virtual currencies. The relatively recent appearance of Internet-based transactions have necessitated developing virtual forms of payment such as virtual currencies. According to the Financial Crimes Enforcement Network (“FinCEN”) of the United States Treasury,5 virtual currencies are subject to regulation if that virtual currency has a substitutive purpose for facilitating the exchange of goods and services. Although governments can place stipulations on currencies, users of common tender, including virtual currencies, expect at least three basic privileges for a virtual currency to evolve from conception to realization. First, a virtual currency must be considered intangible personal property similar to trademarks, copyrights, and patents. Second, ownership disputes must be subject to a system such as a judicial proceeding or binding arbitration to resolve property as well as interest conflicts. Finally, a virtual currency must be subject to similar regulation as other financial instruments (e.g., legal tender, scrip, and credit cards) used in facilitating transactions. One of the most common and critical aspects of safeguarding currency is protection against illegitimate representations of assets—that is, primarily against counterfeiting. We discuss the regulatory authority and/or lack of authority, of the sovereign States of the United States to regulate the counterfeiting of financial instruments used as currency, including virtual currency. Moreover, federal and foreign (non-U.S.) currencies are explicitly examined, but some virtual currencies are not regulated or authorized specifically by any government. Can a currency without formal codification from a government be regulated by a sovereign State? As financial transactions have shifted historically from various governments’ legal tender to combinations of government and private issuances and from the hard currency of coins and paper to electronic transactions, many States’ counterfeiting statutes are unclear or fail to consider that technological changes can impact legal and common tender. The rise of transactions facilitated by virtual currencies and regulations protecting states from virtual counterfeiting is examined and discussed.

Comments

The copy of record is available from the publisher at http://illinoisjltp.com/journal/wp-content/uploads/2015/12/McKinney.pdf

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