Mikołaj Barczentewicz on EU crypto rules

Coindesk – ICLE Senior Scholar Miko?aj Barczentewicz was quoted by Coindesk in a story about new regulations governing crypto-currency in the European Union. You can read full story here.

Tang and others may have been swayed by the views of national governments keen to scrap anonymity, and by officials who tell them crypto is used to fund terorrism and child porn. Others, though, argue that any decision they take could end up getting vetoed by judges. “The travel rule … is really a massive and indiscriminate personal data collection and transfer scheme,” said Miko?aj Barczentewicz, associate professor at the U.K.’s University of Surrey and Fellow of Stanford Law School, told CoinDesk in a written interview Monday.

Proponents of the new rules, Barczentewicz continued, are “saying that it is necessary for all crypto service providers to transfer sensitive data of their clients, even when there is not even the slightest suspicion of a criminal connection.” That privacy restriction “is very likely not as effective as less rights-restricting alternatives,” he said, even were the 1,000 euro limit maintained – and all the more so because those with nefarious aims could simply circumvent them.

Legally speaking, the claim the rules go further than they need to is not just a soundbite, he added. In a 2014 case, the EU’s highest court struck down laws requiring phone companies to keep call data, saying that the invasion of privacy went way beyond what was needed to help the police fight terrorism. “The analogy is very clear.”

If the new rules are passed and subsequently challenged in national courts, said Barczentewicz, “the EU Court of Justice will then have the power to invalidate the rules if it finds that they conflict with the EU Charter of Fundamental Rights,” which safeguards the right to privacy.

“What we seem to be dealing with here is an attempt to do ‘something about crypto and crime,’ without a serious, evidence-based reflection on how best to do it,” Barczentewicz concluded.