EMERGING TECHNOLOGY'S LANGUAGE WARS: CRYPTOCURRENCY.

• Author: Reyes, Carla L.

TABLE OF CONTENTS

Introduction 1196 I. Interdisciplinary Language and Conflicting Claims of Legal Meaning 1201 A. Law's Troubled History with Interdisciplinarity 1203 B. A New Role for Corpus Linguistics in Law: Improving the Lawmaking Process 1205 II. Anecdotal Evidence of Cryptocurrency-Related Clashes of Linguistic Meaning 1210 A. Native Cryptocurrency Versus Nonintrinsic Tokens 1212 B. Nonnative Protocol Tokens, Governance Tokens, and Stablecoins 1216 III. Regulation of Cryptocurrency Suffers from Failures to Establish Shared Linguistic Meaning and Value Misalignment 1219 A. Legal Academics 1223 B. Nonlegal Researchers 1228 C. Lawmakers 1231 D. Judges 1236 E. General Public 1239 F. Lawyers and Law Firms 1243 G. Lessons from Comparing the Results 1248 Conclusion 1249 INTRODUCTION

In legislativ testimony, Senator Warren quipped that cryptocurrency places responsibility of the financial system into the hands of "some shadowy, faceless group of super-coders," urging increased regulation. (1) Almost immediately, t-shirts and declarations of solidarity with shadowy super-coders responded. (2) Although the spat is almost amusing, it represents anecdotal evidence of a deep disconnect between stakeholders in the cryptocurrency space and the lawmakers charged with setting cryptocurrency-related policy. In a less amusing, but equally evident example, President Joe Biden issued an executive order regarding digital assets on March 9, 2022, in which he decried the lack of privacy and security in cryptocurrency systems, (3) suggesting that a government-issued central bank digital currency (CBDC) would better preserve privacy and security. (4) Meanwhile, the cryptocurrency and blockchain technology community place a high emphasis on the privacy-enhancing and security-enhancing features of the technology they build, (5) and harbor a deep suspicion of CBDCs and their potential use in government surveillance schemes. (6) For both positions to be even subjectively accurate, a clear disconnect exists. Although some of this disconnect may represent a true philosophical disagreement, a lot of it may be driven by something much more basic, and infinitely more curable: a clash of linguistic meaning.

The long history of digital asset regulation reveals an equally long misunderstanding of the technology upon which digital assets exist and operate. (7) Take, for example, the 2013 virtual currency guidance issued by the U.S. Treasury's Financial Crimes and Enforcement Network (FinCEN) in March 2013. (8) That guidance relied upon terminology such as "administrator" and "centralized repository" to apply regulation to an emerging decentralized industry. (9) No one knew what FinCEN was talking about, and many law firms and lawyers expended significant time trying to decode the guidance. (10) Nearly ten years later, agency statements, guidance, and executive orders continue to use terminology in ways substantially different than those building the technology use the same terms. (11) This persistent linguistic mismatch evidences a significant disconnect between those who make, enforce, and advise about law related to cryptocurrency and those to whom the law applies. Indeed, the linguistic difficulty points to at least three separate areas of disconnect: (1) the technical meaning of certain words, (2) what that meaning conveys about how the technology works, and (3) the values built into technology. That is to say, the misunderstanding between the governing and the governed reveals both a definitional conflict and a misalignment of values.

Indeed, a lingering intuition that interdisciplinary language barriers impact questions at the intersection of cryptocurrency, law, and policy galvanized initial academic commentary. (12) For example, some scholars highlight difficulties surrounding specific terms such as immutable and decentralization, concluding that technologists mislead the public by using these words to mean anything other than what a common, nontechnologist would understand them to mean. (13) Meanwhile, the scholars contributing to the vast literature on smart contracts investigate the continuing confusion surrounding that term. (14) Indeed, these scholarly efforts to separate the realities of technology's capabilities from the hype that often surrounds it echoes a similar ongoing discussion in the broader law and technology field. (15) But much of the discussion, whether cryptocurrency-specific or not, draws on either anecdotal or theoretical concerns about the meaning of terms and potential use cases. (16)

In three parts, this Article uncovers the impact of mismatched language use on policymaking priorities, statutory text, and judicial public discourse more broadly. Specifically, this Article argues that when attempting to regulate a new, highly technical, nearly trillion-dollar industry, those in the legal profession, whether lawyer, lawmaker, legal arbiter, or legal academic, have a duty to account for situations in which the words they use represent different terms of art in different disciplines. Further, this Article argues that understanding, and at times deferring to, the technical meaning of certain cryptocurrency-related terms of art can improve the law's ability to responsibly regulate this quickly growing sector of the economy. Part I introduces the problem of interdisciplinary language use by lawyers, lawmakers, and legal academics, highlighting that legal interpretation canons such as ordinary meaning (17) lull lawyers, lawmakers, and regulators into a false sense of linguistic security. Often those in law fail to inquire as to possible technical meanings of words that serve as terms of art in the substantive area the law seeks to address. (18) Indeed, lawyers and legal academics often co-opt language from other disciplines to enhance the persuasiveness of their own legal analysis rather than letting the tools from the borrowed discipline stand on their own. (19) The result is that much of the current scholarship considering the linguistic pain points between law and technology relies on a largely anecdotal approach, without offering much in the way of concrete data. (20)

Part II argues that the clashes of linguistic meaning that have long plagued the interactions between law and other disciplines are playing out in the context of cryptocurrency regulation. To move beyond an argument based on mere anecdotal evidence, Part II uses corpus linguistics (21) to provide a data-driven critique of lawmaking in the cryptocurrency space. In doing so, this Article makes two core contributions: First, when regulating highly technical industries and technology, the use of presumptively ordinary language with reference to technical artifacts (22) may make the legal landscape more confusing rather than less. Second, while corpus linguistics is often touted as a tool for use by judges in legal interpretation of statutes after their enactment, this Article demonstrates the usefulness of linguistic tools in the process of lawmaking. (23) Having used corpus linguistics to investigate the way different relevant communities use the following key terms: cryptocurrency, token, digital assets, and nonfungible tokens, Part III unpacks the implications and consequences of the results.

1. INTERDISCIPLINARY LANGUAGE AND CONFLICTING CLAIMS OF LEGAL MEANING

   Viewing themselves as master wordsmiths, lawyers, legislators, and the law itself use specialized language to create legal ideas and legal doctrine, and to advocate for clients. (24) As a result, law, as a discipline, contains numerous terms of art--words or phrases that represent a specific idea, rule, or concept. (25) Law is not alone in this practice. Other disciplines employ terms of art as well. As a result, some words can convey different meanings and conjure different values to speakers with different backgrounds and professional training. Nowhere is this truer than in the context of the disciplines that contribute to emerging technology: computer science, engineering, and math, among others. (26)

   Because of the limits of law's ability to accurately accommodate the terms of art used in many highly technical disciplines, the law generally places strong importance on using functional, technology-neutral language in statutes. (27) To apply those technology-neutral statutes to new and emerging technologies, lawyers and regulators often turn to analogy and analogical reasoning. (28) Recognizing that uses of anecdote and metaphor can only take legal discussions so far, some legal scholars and judges look to the use of corpus linguistics as a mechanism for greater evidence-based application of law. (29) Although most attention in legal corpus linguistics centers on determining the ordinary meaning of an ambiguous statute, (30) this Article seeks to apply corpus linguistics techniques in a different context: the law- and regulation-making process. Recognizing that limits exist to the efficacy of a legal researcher employing tools from other disciplines, Part I begins by examining the potential pitfalls of using interdisciplinary methods in a legal academic undertaking. This Part then specifically considers the debated merits of using corpus linguistics in legal inquiries, which have largely focused on its use in legal interpretation. Finally, this Part makes the case that using corpus linguistics at an earlier point in the legal cycle--during study, debate, and drafting legislation and regulation--can offer insight that strengthens law and regulation related to highly technical subject matters.

   1. Law's Troubled History with Interdisciplinarity

      It should probably not come as a surprise that those trained in the technical disciplines required to create cryptocurrency systems feel their craft is misunderstood by law. Law's uneasy status in relation to other academic disciplines derives from a historical tension around the status of law as an academic discipline. (31) Indeed, the...