This article follows a 7 April 2021 article titled:
Tech and Crime Series: Cryptoassets and financial crime Part I.
On 1 June 2022, the US Department of Justice (DoJ) announced that a former employee of a non-fungible token (NFT) marketplace, OpenSea, had been charged in the first ever digital asset insider trading scheme.
As the associated press release states, “NFTs might be new, but this type of criminal scheme is not. ..[..]..Today’s charges demonstrate the commitment of this Office to stamping out insider trading – whether it occurs on the stock market or the blockchain.”
Although this is the first time that charges in relation to insider trading have been brought against trading in digital assets, it is not the first time that criminal charges have been made against individuals alleged to have used new technologies (specifically
cryptoassets) to engage in old criminal schemes. Indeed, charges in relation to fraud and money laundering have been made on numerous occasions against those allegedly involved in crooked cryptocurrency scams.
However, it is perhaps inevitable that as cryptoassets move into the era of the NFT, it was only a matter of time before an allegation was made of using this latest manifestation of the technology to engage in an old criminal scheme.
As remains the case though, when one strips back the complexity from these cases and analyses the actual conduct as alleged, there will often be found an old criminal scheme, just dressed up in modern clothing. As such, old-fashioned investigation techniques
assisted by features of the technology and combined with correct charging decision, often work most effectively at investigating and prosecuting these types of allegations.
However, as this article will also examine, there are some interesting features in this NFT case about the charging decision and its wider implications.
Previous tech crime cases
Cryptoassets are still a new technological innovation. As this new technology has developed, the charges against those accused of using these technologies to engage in old criminal schemes become increasingly common.
For example, back in 6 March 2021, it was announced that an individual had been charged in the US with conspiracy to commit fraud and money laundering. This was in relation to alleged involvement in a cryptocurrency scheme.
At the time similar language comparing old criminal schemes and new technologies was used in the associated press releases, with FBI Assistant Director William F stating that the suspects “used social media to perpetrate an age-old pump and dump scheme
that earned them nearly two million dollars”. He later warned that “When engaging in illegal activity, simply finding new ways to carry out old tricks won’t produce different results. Investment fraud and money laundering schemes carry a strict penalty
under federal law.”
Previous charges have therefore focused on those abusing these new technologies to engage in fraudulent schemes and any associated money laundering. Indeed, features of the technology have also assisted would-be criminals, such as the novelty and borderless
scalability of this new technology, and the fact that cryptoassets also offer a potentially anonymous, decentralised and cross-jurisdictional conduit to rapidly transfer peer-to-peer value.
Old criminal schemes
However, when one strips back to the conduct alleged in cases, despite a novel technology being used, the actual elements can be generally straightforward to investigate and charge.
As was previously discussed, the legal principles constituting a fraud have been deliberately drafted broadly and simply and therefore cast an intentionally wide-net. With regards to anti-money laundering, although some cryptoassets have no central authority
(e.g. a bank) to regulate, there was an early appreciation of that fact that there are still intermediaries, where users convert their cryptocurrencies (or NFTs!) into fiat currency, which can be regulated to deal with issues such as anonymity. Indeed, NFTs
themselves will often be dealt through a centralised institution.
Latest NFT case and policing market manipulation
Therefore although a prominent feature of this latest case is the fact that NFTs have allegedly been used to engage in criminal conduct (essentially an allegation that the individual used to trade NFTs confidential business information before it became publicly
known), when one strips back the actual conduct as alleged, an old criminal offence is revealed.
Despite this, there are still some noteworthy features of this case. An 11 June 2022 article by CoinDesk titled “How the Feds are prosecuting NFT inside trading scheme as wire fraud – and why that matters” observed that “The U.S. Department of
Justice last week took an innovative step in applying established criminal theorise of liability to non-fungible tokens”.
As the article continues, the DoJ has charged under the general wire fraud statute, rather than the specific insider dealing regulations. Additionally, the article notes that the indictment does not specifically label NFTs as securities. As regular readers
may be aware, the categorisation of NFTs as securities is a thorny issue and it may well have been that this was done to avoid setting a precedent. The article concludes that if the wire fraud theory proves successful then this could be used to police market
manipulation of others assets (whether they are considered securities or not).
Finally, of interest is also the fact that it is alleged that the perpetrator used anonymous accounts on OpenSea and anonymous cryptocurrency to try and hide their tracks. Hence the addition of charges of money laundering. Presumably, and possibly assisted
by features of the technology, these tracks were not so well hidden. Indeed, the immutably nature of the technology often enables trails to be pursued.
Conclusion
As discussed previously, when policing any new technology, regulatory and prosecuting agencies are always to a certain extent going to be playing catch-up. However, once again, when one strips away the novel features and instead focusses on the conduct,
regulators and prosecutors agencies have been well advised to look to old tried-and-tested methods underpinned with a bit of common sense and understanding of this new technology. This now includes a full understanding of NFTs such that an allegation of criminal
charges has been made for the first time.
However, what this latest case has taught is that there are features of this case that could enable prosecutors to expand their reach for these types of allegations. Therefore as this technology becomes more prevalent, there now certainly will be more cases
coming out of the woodwork, including those which follow the latest manifestations of the technology.