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FinCEN issued an alert indicating that certain organizations and individuals have been circumventing various laws related to sports betting, including by permitting “third-party betting” and reminding the industry about the importance of applying a risk-based approach with respect to this issue and the need to implement reasonably designed AML programs to address among other risks, the risks associated with third-party betting.

FinCEN further noted that criminals are making bets with legally operating sports books, including by using intermediaries to place bets on behalf of unidentified third parties (third-party betting). In these cases, the intermediaries rarely voluntarily disclose to the casino that a transaction is being conducted on behalf of a third party, thereby disguising the third party’s role in the transaction and obscuring the source of funds used to place the bet. This poses distinct money laundering risks for casinos. In addition to concealing the owner and the origin of funds, third-party betting poses distinct money laundering risks for casinos because it allows criminal organizations, illegal sports books, and others located in any state, where gambling may be illegal,
to place bets within states where sports betting is legal.

Casinos should be aware that failure to identify a third party on whose behalf a transaction is conducted may constitute a violation of the casinos’ recordkeeping and reporting obligations under the BSA.

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In denying a motion for summary judgment of invalidity under Section 101, the court stated: “An inability to articulate an abstract idea to which claims are directed may be a clue that those claims satisfy Section 101.” The patent claims at issue related to management of online poker. Defendant challenged the validity based on lack of patentable subject matter under Section 101 in light of the recent Alice decision,
alleging the claims related to the abstract idea of a “customer loyalty program direct to poker, ” (i.e. a player rewards system within a poker room), without adding significantly more. The court refused to buy this argument because the independent claims did not even include a customer loyalty or compensation system.

It is always easy to say that a claim relates to an abstract idea, but that is not the proper legal test. The focused is on what is actually claimed. As stated in Alice, a claim that recites an abstract idea must include “additional features” to ensure “that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].” To the extent the claims do recite an abstract the question is whether there are other ways to use the abstract idea.

Despite the furor over the Alice
decision, properly drafted software and game patents are still patent eligible.

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Too many companies/lawyers treat website Terms of Service (TOS) as boilerplate agreements that no one reads. Many companies simply put a link at the bottom of the homepage. This approach continues to prove ineffective, as courts are more frequently refusing to enforce TOS absent properly drafted terms and a requirement that the user read and/or affirmatively accept the terms. In a recent 9th
Circuit Appeal, the court ruled against Barnes&Noble stating that “where the link to a website’s terms of use is buried at the bottom of the page or tucked away in obscure corners of the website where users are unlikely to see it, courts have refused to enforce the browse-wrap agreement.”

The Court further held: “where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on–without more–is insufficient…”

The result in this case was that the court decided there was no binding agreement,
and therefore B&N could not enforce the arbitration clause contained in the TOS. However, in other cases, even more significant problems can arise. Similar problems can cause modifications to a TOS to be ineffective.

The bottom line is that if properly drafted and implemented, a TOS can provide significant protection for companies and can minimize legal liability to customers. If not, courts will likely not enforce those terms.

If you have not recently reviewed your TOS, you should have a lawyer do so soon.

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In comments on October 14, 2014, Ben Lawsky commented on changes to the proposed bitlicense regulations. The main points he made were these:

  • Regarding who will be required to obtain a bitlicense, he said the focus will be financial intermediaries, not software developers or individual users.
  • To the extent that company may need both money transmitter and virtual currency licenses, for example – which is possible – the process will be streamlined to avoid duplication.
  • Regarding concerns that banks were exempted, he said that is untrue. Banks cannot start providing virtual currency services without prior approval from DFS, and they will have to comply with any requirements that are otherwise imposed on virtual currency businesses.
  • Mining, per se, will not be regulated. To the extent a miner engages in other virtual currency services, however – for example, hosting wallets or exchanging virtual currency – a license may be required for those activities.
  • Consideration is being given to how to avoid excessive regulatory costs for startups – but no specific proposal was provided. He said the goal is not to stifle technological innovation, but if a software company is also taking on the responsibility of actually safeguarding customer money, it is a much more difficult calculation.
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On August 1, 2014, the Food and Drug Administration (FDA) released draft guidance that would exempt from premarket 510(k) review many low-risk medical devices–including certain mobile applications that can convert a cell phone into a medical device, such as a thermometer or a stethoscope. Although the guidance is not yet legally enforceable, the FDA also announced its intention not to enforce compliance with premarket review requirements for these devices and noted that it did not expect manufacturers to submit 510(k)s for these devices prior to adoption of a final rule or order. The FDA’s recognition that these devices are sufficiently well understood and do not present risks that require premarket review to ensure their safety and effectiveness–and its corollary decision to exercise enforcement discretion as to these devices–eases the regulatory burden on medical application developers and expands opportunities for continued development and dissemination of important mobile tools for improving patient care and physician practice.

For more information, check out the Client Alert.

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On Friday, Michael Dell, CEO of Austin-based Dell Inc., announced on twitter that Dell.com is now accepting Bitcoin as a direct payment option for consumers and small businesses in the U.S.  Other major companies, such as Overstock and Expedia, began accepting Bitcoin earlier this year and have reported favorable results, including that a majority of Bitcoin purchases were made by brand new customers.  To offer Bitcoin as a payment option,
Dell partnered with Coinbase,
a U.S.-based Bitcoin exchange and payment processor.  Dell’s terms and conditions highlight one of Bitcoin’s unique characteristics,
i.e., that once you initiate a Bitcoin transaction, you cannot change or cancel it.  Dell does, however, offer a limited refund process that requires a Coinbase account or remittance of a check in U.S. dollars, depending on the circumstances.

Austin has become a hub of Bitcoin activity.  Several emerging Bitcoin-focused companies, such as CoinTerra
and Cloudhashing, are located in Austin, and, in February, Robocoin installed the first U.S.-based Bitcoin ATM in a popular bar in downtown Austin.

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Bitcoin mining firm GHash is reportedly
consistently attaining over 51% of all of the hashing power of all Bitcoin miners.  As a decentralized currency, Bitcoin depends on an open ledger called the “block chain” to track every transaction using the Bitcoin protocol.  The integrity of the block chain is generally maintained because many different entities are competing to summarize the entire block chain as quickly as possible.  When many entities agree on the state of the block chain, that agreed upon state becomes for all intents and purposes, fact.
When a miner is able to consistently control 51% of the “votes” in the mining pool, it can theoretically control the state of the block chain.
GHash has released a press release stating that it will not attempt to use its hashing power to manipulate the market, but the Bitcoin community remains cautious of how GHash will wield its market share in the coming weeks.

For advice on how this development may impact you, contact us.

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As reported in our earlier post,
the U.S. Government has begun its first ever auction of Bitcoins.  The Bitcoins to be auctioned were seized in connection with the shutdown of the Silk Road – the “dark net” site that served as a marketplace for illegal goods.  The U.S. Marshals Service has announced that 29,656.51306529 bitcoins will be auctioned in this initial round.  The reported
value of the Bitcoins to be auctioned, at the time of the announcement, is approximately $18 million U.S. Dollars.

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The California Attorney General recently published recommendations
for developing meaningful privacy policies that comply with the California Online Privacy Protection Act of 2003 (CalOPPA), including recommendations for complying with “Do Not Track” disclosure requirements.  According to the Attorney General, a meaningful privacy policy is one that addresses significant data collection and use practices, uses plain language, and is presented in a readable format.  While the recommendations are not regulations, mandates,
or legal opinions, they do identify certain best practices for privacy policies that satisfy the minimum legal requirements.

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More and more federal and state agencies are weighing in on virtual currency.  Here’s what they are saying:

Financial Crimes Enforcement Network (FinCEN):

  • FinCEN Statement on Providing Banking Services to Money Services Businesses (Nov. 10, 2014)
  • Request for Administrative Ruling on the Application of FinCEN’s Regulations to a Virtual Currency Payment System, FIN-2014 (Oct. 27, 2014)
  • Request for Administrative Ruling on the Application of FinCEN’s Regulations to a Virtual Currency Trading Platform, FIN-2014-R011 (Oct. 27, 2014)
  • Application of Money Services Business regulations to rental of computer systems for mining virtual currency, FIN-2014-R007 (Apr. 29, 2014)
  • Whether a Company that Offers Secured Transaction Services to a Buyer and Seller in a Given Sale of Goods or Services is a Money Transmitter, FIN-2014-R005 (Apr. 29, 2014)
  • Application of FinCEN’s Regulations to Virtual Currency Mining, FIN-2014-R001 (Jan. 30, 2014)
  • Application of FinCEN’s Regulations to Virtual Currency Software Development and Certain Investment Activity, FIN-2014-R002 (Jan. 30, 2014)
  • Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies (Mar. 18, 2013)

Jennifer Shasky Calvery, Director FinCEN:

U.S. Securities and Exchange Commission (SEC):

Internal Revenue Service (IRS):

David S. Cohen, Under Secretary of Terrorism and Financial Intelligence:

U.S. Immigration and Customs Enforcement:

U.S. Department of Homeland Security:

United States Senate, Committee on Homeland Security and Governmental Affairs:

U.S. Government Accountability Office (GAO):

Conference of State Bank Supervisors:

Financial Action Task Force (FATF):

Here’s is what the states are saying:

Alabama Securities Commission

California Department of Business Oversight:

California Assembly:

Connecticut Department of Banking, Securities and Business Investments Division:

Florida Office of Financial Regulation:

Kansas Office of the State Bank Commissioner:

Illinois General Assembly:

  • House Bill 5886 — Bill would amend the Transmitters of Money Act to define “virtual currency” as a medium of exchange that operates like currency in some environments, but does not  have all the attributes of real currency.

Maryland Commissioner of Financial Regulation:

Massachusetts Consumer Affairs and Business Regulation

  • National Study Finds Consumers Aware of Virtual Currency, but Have Concerns (Aug. 27, 2014)

State of Nevada Department of Business & Industry:

  • Nevada Financial Institutions Division issues consumer and investor guidance on virtual currency (Apr. 25, 2014)

New York State Department of Financial Services:

  • Excerpts From Superintendent Lawsky’s Remarks On Virtual Currency and Bitcoin Regulation in New York City (Oct. 14, 2014)
  • Proposed New York Codes, Rules and Regulations, Department of Financial Services, Virtual Currencies (Jul. 2014)
  • In the Matter of Virtual Currency Exchanges, Order Pursuant to New York Banking Law §§ 2-b, 24, 32, 102-a, and 4001-b and Financial Services Law §§ 301(c) and 302(a) (Mar. 11, 2014)

Texas Department of Banking:

  • Supervisory Memorandum ¾ 1037 (Apr. 3, 2014)

Washington State Department of Financial Institutions:

State Wisconsin, Department of Financial Institutions:

  • State agency warns consumers to be cautious with virtual currencies (Apr. 30, 2014)

Others:

Isle of Man, Department of Economic Development:

Here’s is what other countries are saying:

Canada’s Federal Government:

Isle of Man:

Swiss Financial Market Supervisory Authority (FINMA):