thecaseforelectroniccash

this one is new, but gives a pretty compelling overview for the need for electronic cash and could be a nice introduction to the book.

coincenter.org
The Case for Electronic Cash:
Why Private Peer-to-Peer Payments are
Essential to an Open Society
Jerry Brito
February 2019
Jerry Brito, The Case for Electronic Cash: Why Private Peer-to-Peer Payments are Essential
to an Open Society, Coin Center Report, Feb. 2019, available at
https://coincenter.org/entry/the-case-for-electronic-cash
Abstract
Cash is more than a method of payment. It is a fundamental tool for individual privacy and
autonomy, and it is necessary for an open society. This paper shows that a cashless economy is
a surveillance economy. It also argues that removing the option to freely transact without
intermediation greatly limits our economic self-determination, placing our economic lives in
the hands of financial institutions and governments. This paper presents several case studies
demonstrating the dangers of a completely intermediated payments system and concludes that
electronic cash is a tool that should not only be tolerated, but fostered and celebrated.
Author
Jerry Brito
Executive Director
Coin Center
jerry@coincenter.org
About Coin Center
Coin Center is a non-profit research and advocacy center focused on the public policy issues
facing open blockchain technologies such as Bitcoin. Our mission is to build a better
understanding of these technologies and to promote a regulatory climate that preserves the
freedom to innovate using blockchain technologies. We do this by producing and publishing
policy research from respected academics and experts, educating policymakers and the media
about blockchain technology, and by engaging in advocacy for sound public policy.
Acknowledgements
Thank you to Andrea Castillo who provided invaluable research assistance, and to my Coin
Center colleagues Neeraj Agrawal, James Foust, Robin Weisman, and Peter Van Valkenburgh
for indispensable discussions and comments on early drafts of this paper. Sincere thanks to
those who provided comments on a draft of this paper, including Brandon G. Goodell, Jason
Somensatto (0x Project), Alexander Zaidelson (Beam), Elena Nadolinski (Beanstalk), Ron
Bernstein (Coinbase), Rainey Reitman & Jamie Lee Williams (Electronic Frontier Foundation),
Silke Elrifai (Gnosis), Daniel Lehnberg (Grin), Alex Gladstein (Human Rights Foundation),
Steven Waterhouse (Orchid Labs), Marvin Ammori (Protocol Labs), Alan Curtis (Radar), Zooko
Wilcox (Zcash), and Josh Cincinnati (Zcash Foundation). Special thanks to Shane Glynn, Joshua
Goldbard, and Nathana Sharma (MobileCoin) for helping organize a workshop for this paper.
1
Introduction
Completely anonymous cryptocurrency is an experimental new technology that is being
perfected by the day. While it is tempting to only focus on the opportunities it presents to
criminals and its inevitable illicit uses, more important is what it represents for the law abiding
citizens that make up the vast majority of society. Not only do its benefits outweigh its costs,
electronic cash is indeed essential to sustaining a liberal open society.
In a world without cash (a bearer and peer-to-peer form of money) all transactions must be
necessarily intermediated by financial institutions. Intermediated transactions are by their
nature subject to surveillance and control. If third-party financial institutions must be part of
all transactions, then they will be privy to the intimate details of everyone’s financial life. They
can also choose to disallow certain transactions and potentially even certain persons from
transacting.
Intermediation has many benefits, including efficiency and convenience. Used responsibly, the
information gleaned from the privileged position of financial intermediary can also allow one
to better extend credit, prevent fraud, and help the authorities fight crime. But as this paper
will show, it can also be abused spectacularly by corporations and governments. If there is no
way to avoid intermediation, then individuals will have no way to preserve their privacy or their
autonomy.
Cash is an ancient technology that allows us to avoid intermediation and thus to preserve the
values necessary for the individual liberty and human dignity. While we are a long way from a
cashless and completely intermediated existence, at least in the United States, this paper will
also show that there is a concerted effort to eliminate cash that has been quite successful in
other parts of the world.
This paper will argue that cash is essential to an open society. It is an escape valve in our
increasingly intermediated and therefore surveilled world. We do not argue that cash should be
the only option for transactions, or even the option one should choose most of the time. But it
should be an option. Without it, there is no choice but to have one’s every purchase be watched
and recorded and the information used without one’s consent. Without cash there is no
exit—no chance for the kind of dignity-preserving privacy that undergirds an open society.
Cash is also necessary to retain agency and autonomy. Autonomy can be understood as the
power to make decisions for oneself without interference from others. It’s the ability to try
things one’s way, to succeed and be rewarded, or to make mistakes and learn from them. As
with personal privacy, without individual autonomy there can be no meaningful open society.
It is therefore imperative that we preserve our ability to use it. Yet that is not enough. As we
move to an increasingly online world in which physical cash is not practical for many
transactions, we must also develop and foster electronic cash that is as privacy-preserving and
2
permissionless as physical cash. While this will have costs as well as benefits, we argue that the
way to address the costs is not to prohibit electronic cash, but instead to regulate its use no
differently than physical cash for which there is a robust regime.
What is Cash
Cash is not simply money. The word cash typically refers to money in the form of coins and
paper notes. It is distinct from other forms of money, such as demand deposits, which is money
held in bank accounts and from which one can pay using a check. Paper notes and coins, on the
other hand, are bearer instruments. That means that whoever has physical possession of the
tokens—in this case, the notes or coins—is presumed to be the owner of the money, and
ownership is transferred by simply handing over physical possession of the token.
Cash transactions are peer-to-peer. Transferring ownership of a house, a car, a stock or bond
registered in one’s name, or even money in one’s bank account, requires the involvement of a
third party, such as a bank, a stock transfer agent, or a local register of deeds. A cash
transaction, on the other hand, happens only between the two parties to the transaction. I hand
you a $100 note, and that’s all there is to it.
The bearer and peer-to-peer nature of cash means that transactions require little or no trust.
You may still want to verify that the cash in hand is not counterfeit, but there is no trust in 1
third parties necessary for the transaction. In contrast, when you accept a check, you trust that
the bank is solvent and will honor the order to pay.
Because it is bearer and peer-to-peer, cash is also permissionless. This means that one does not
need authorization from, or an account with, any institution in order to transact with others.
This is important for many persons who cannot easily open such an account, perhaps because
they don’t have steady income, a good credit history, a government ID, or a permanent address.
In some countries, like Saudi Arabia, women are not allowed to open accounts. Cash is an open 2
access system in which anyone—banked or unbanked—can participate without having to seek
the permission of financial gatekeepers.
Because cash is permissionless, it is censorship resistant. You can use cash to contribute to an
unpopular cause or to purchase goods or services that are legal but socially or culturally taboo.
Of course, it can also be used to buy an illicit goods or services. While you may be punished
after the fact for engaging in an illegal transaction, there is no third-party gatekeeper that can
1 The U.S. Treasury Department estimates that about only one note in every 10,000 is counterfeit. U.S.
Treasury Department, “The Use and Counterfeiting of United States Currency Abroad, Part 3,” final
report to Congress (Sep. 2006)
https://www.federalreserve.gov/boarddocs/rptcongress/counterfeit/counterfeit2006.pdf.
2 Margaret Coker, “How Guardianship Laws Still Control Saudi Women,” New York Times (Jun. 22, 2018)
https://www.nytimes.com/2018/06/22/world/middleeast/saudi-women-guardianship.html.
3
prevent the transaction because transactions are peer-to-peer. This even includes the very
governments that may be issuing the cash notes.
Finally, cash is private. Because cash is peer-to-peer, there need not be more witnesses to a
transaction than its participants. Sometimes the case that only one party to a transaction is
witness to it, such as when one drops a bill into a church’s donation box. There also need not be
any record made of the transaction, since possession of the cash is what matters, and not any
ledger entry.
So, cash is a bearer, peer-to-peer, permissionless, and privacy-preserving form of money. It is
an ancient technology with striking features, yet there is a movement afoot to eliminate it.
The Cashless Society
It is easy to take cash for granted. When people think of money, they imagine colorful paper
notes even though the vast majority of global money stock is composed of electronic entries in
bank ledgers, not physical cash. The ability to use an ATM to convert some of those ledger 3
entries into paper that can then be used to pay at a newsstand—privately and
permissionlessly—is as second nature as breathing. Yet there’s no reason why that has to be the
case.
Sweden, for example, is fast becoming a cashless society. According to its central bank, cash
transactions accounted for only 2% of the value of all payments made in 2015, and that figure is
expected to drop to 0.5% by 2020. A majority of bank branches in Sweden no longer keep cash 4
on hand and ATMs are increasingly rare. Other Nordic countries, like Norway, Denmark, 5 6 7
3 The Federal Reserve releases regular reports on the amount and breakdown of the monetary base in the
United States. Its most recent release reports a seasonally adjusted M2 of $14.27 trillion in October of
2018, $1.62 trillion of which was physical cash in public circulation. That means that only around 11
percent of money is physical cash in the United States. See Board of Governors of the Federal Reserve
System, “Money Stock and Debt Measures - H.6 Release,” Data Report (Nov. 29, 2018)
https://www.federalreserve.gov/releases/h6/current/h6.pdf. To get an idea of the international picture,
we can look at statistics compiled by the Bank for International Settlements. The annual “red book”
publication from the Committee on Payments and Market Infrastructures reports $4.7 trillion in
banknotes and coins in circulation among 24 major economies in 2016. This is roughly 8.95 percent of
those nations’ $60.7 trillion in combined GDP that same year. See Committee on Payments and Market
Infrastructures, “Statistics on payment, clearing and settlement systems in the CPMI countries - Figures
for 2016,” Comparative Tables 1 and 2, Data Report (Dec. 15, 2017): pgs. 420-422,
https://www.bis.org/cpmi/publ/d172.htm.
4 John Henley, “Sweden leads the race to become cashless society,” The Guardian (Jun. 4, 2016)
https://www.theguardian.com/business/2016/jun/04/sweden-cashless-society-cards-phone-apps-leading
-europe.
5 Id.; also: Patrick Jenkins, “‘We don’t take cash’: is this the future of money?” Financial Times (May 9,
2018) https://www.ft.com/content/9fc55dda-5316-11e8-b24e-cad6aa67e23e.
4
Iceland, and Finland are similarly situated. South Korea targets 2020 for phasing out paper 8 9
notes and coins.
10
Citizens in these countries rely on card and mobile payments systems owned and operated by
banks and financial technology (fintech) firms. These companies have an interest in promoting
an increasingly cashless society. Every cash transaction is a transaction that takes place outside
of the infrastructure that they own and on which they take a fee. Additionally, cash 11
management is a not an insignificant cost for financial institutions.
12
Firms such as Visa have launched advertising and media campaigns to urge consumers to give
up cash for card payments. Other campaigns are targeted at merchants. In one, Visa offered 13
$10,000 to restaurants and food trucks that committed to stop accepting cash. As Visa UK put 14
it, these campaigns are part of a “long term strategy to make cash ‘peculiar’ by 2020.”15
Central banks also have an interest in eliminating cash. Doing so would grow the monetary
policy tools at their disposal. If there are no bearer notes and all money is in the form of
deposits, then it is easier to impose negative interest rates across the whole economy. The Bank
6 Will Martin, “Fewer than 10% of people in Norway use cash— and a senior official thinks it could
disappear completely within a decade,” Business Insider (Apr. 25, 2018)
https://www.businessinsider.com/norway-first-cashless-society-2018-4.
7 “Denmark will eventually be cash-free: expert,” The Local DK (Aug. 14, 2018)
https://www.thelocal.dk/20180814/denmark-will-eventually-be-cash-free-expert.
8 Anna Kuzmina, “Cashless Iceland,” Medium (Sept. 17, 2018)
https://medium.com/what-the-money/cashless-iceland-f77147c9b253.
9 “Bank of Finland predicts country will be cash-free by 2029,” Yle Uutiset Online (Feb. 21, 2016)
https://yle.fi/uutiset/osasto/news/bank_of_finland_predicts_country_will_be_cash-free_by_2029/8689417.
10 Patrick Jenkins, “‘We don’t take cash’: is this the future of money?” Financial Times (May 9, 2018)
https://www.ft.com/content/9fc55dda-5316-11e8-b24e-cad6aa67e23e.
11 Brett Scott, “The War on Cash,” TheLong+Short (Aug. 19, 2016)
https://thelongandshort.org/society/war-on-cash.
12 Patrick Jenkins, “‘We don’t take cash’: is this the future of money?” Financial Times (May 9, 2018)
https://www.ft.com/content/9fc55dda-5316-11e8-b24e-cad6aa67e23e.
13 Brett Scott, “The War on Cash,” TheLong+Short (Aug. 19, 2016)
https://thelongandshort.org/society/war-on-cash.
14 Jackie Wattles, “Visa offers restaurants $10,000...if they stop accepting cash,” CNN Business (Jul. 14,
2017)
https://money.cnn.com/2017/07/14/news/companies/visa-no-cash-restaurant-initiative/index.html.
15 “Visa Europe launches ‘Cashfree and Proud’ campaign,” Visa Europe (Mar. 21, 2016)
https://www.visa.co.uk/newsroom/visa-europe-launches-cashfree-and-proud-campaign-1386958.
5
of England’s chief economist proposed abolishing cash altogether to secure that option. There 16
are also public finance motivations. Nobel prize-winning economist Joseph Stiglitz would also
like to do away with cash in order to make tax evasion and other financial corruption more
difficult and traceable. Still, critics must admit that cash has its uses. Former International 17
Monetary Fund chief economist Kenneth Rogoff, whose gripes with paper money are plainly
stated in the title of his book, The Curse of Cash, nevertheless agrees that “we need cash for
privacy.”18
This anti-cash trend is taking hold. Signs that read “no cash accepted” are an increasingly
common sight at shops in Nordic countries. Even in countries like the UK where cash is still 19
popular, some shops are going cash-free, and as Transport for London’s website will tell you, 20
“You can’t use cash to pay for your bus fare.” On the Internet, cash has never been an option, 21
and as commerce moves online, the proportion of intermediated payments grows
concomitantly. Market research firm eMarketer estimates $2.3 trillion in global ecommerce
sales in 2017. That is around 10 percent of the $22.6 trillion in all global retail sales, and a 22
16 Chris Giles, “Scrap cash altogether, says Bank of England’s chief economist,” Financial Times (Sep. 18,
2015) https://www.ft.com/content/7967908e-5ded-11e5-9846-de406ccb37f2.
17 Ross Chainey, “The US should get rid of cash and move to a digital currency, says this Nobel Laureate
economist,” World Economic Forum (Jan. 17, 2017)
https://www.weforum.org/agenda/2017/01/the-us-should-get-rid-of-cash-and-become-a-digital-econo
my-says-this-nobel-laureate-economist/. Stiglitz has elsewhere criticized the Indian government’s 2016
demonetization experiment which aimed to achieve similar goals. Indian citizens complained about the
waste and inefficiency of the process which stemmed little evasion. Cash demand in India has since
returned to pre-demonetization levels. See: “Why Demonitisation Was Launched Will Remain A Mystery:
Joseph Sitglitz,” Interview with NDTV (Jan. 26, 2018), https://www.youtube.com/watch?v=acgVZEhsjgo;
Andy Mukherjee, “By a 99.3% Verdict, India’s Cash Ban Was a Farce,” Bloomberg Opinion (Aug. 30, 2018)
https://www.bloomberg.com/opinion/articles/2018-08-30/india-s-cash-ban-was-a-farce-by-a-99-3-verdi
ct.
18 James Pethokoukis, “The problem with cash: A Q&A with economist Kenneth Rogoff,” AEIdeas, (Nov.
10, 2016) http://www.aei.org/publication/the-problem-with-cash-a-qa-witheconomist-kenneth-rogoff/.
19 Amanda Billner, “‘No Cash’ Signs Everywhere Has Sweden Worried It’s Gone Too Far,” Bloomberg (Feb.
18, 2018)
https://www.bloomberg.com/news/articles/2018-02-18/-no-cash-signs-everywhere-has-sweden-worried
-it-s-gone-too-far.
20 Patrick Jenkins, “‘We don’t take cash’: is this the future of money?” Financial Times (May 9, 2018)
https://www.ft.com/content/9fc55dda-5316-11e8-b24e-cad6aa67e23e.
21
Transport for London website, https://tfl.gov.uk/modes/buses/cash-free-buses, accessed December 3,
2018.
22 Corey McNair, “Worldwide Retail and Ecommerce Sales: eMarketer’s Estimates for 2016-2021,”
eMarketer Report (Jul. 18, 2018)
https://www.emarketer.com/Report/Worldwide-Retail-Ecommerce-Sales-eMarketers-Estimates-2016202
1/2002090.
6
24.8 percent increase from 2016’s $1.8 trillion in worldwide online sales. Online commerce will
only grow.
The growth of online retail necessarily requires a growth in online payments. Online
transactions are therefore generally facilitated by new fintech services, credit or debit cards
issued by traditional banking intermediaries, or some combination of these. This means that
intermediaries have more information about our buying habits than ever before.
Although some countries like Sweden are on a cashless path, it would be a mistake to conclude
that people’s desire for cash has lessened globally. A report from the Bank for International 23
Settlements (BIS) finds that cash demand, measured by proxy through cash in circulation,
increased among most of the 46 national economies in its sample. The BIS also reports data on
the substitution between cash payments and online payments, as estimated through card
transactions, in 24 nations. Only two of them, Russia and Sweden, exhibit signs of 24
substituting card payments for cash transactions. The other 22 nations exhibit increases in
both online payments and cash demand, which suggest a lingering value placed on cash’s
unique features.
25
While the death of cash is not imminent in countries like the United States, it is certainly 26
visible on the horizon. Unfortunately the death of cash means the birth of perfect financial
control.
The Intermediated Society
If cash is eliminated, then all transactions will necessarily be intermediated. This is because
instead of relying on the physical scarcity of bearer instruments, we would have to rely on
intermediaries to guarantee all transfers of value. To understand why remember what a
23 John Williams and Claire Wang, “Reports of the Death of Cash are Greatly Exaggerated,” Federal
Reserve Bank of San Francisco Blog (Nov. 20, 2017)
https://www.frbsf.org/our-district/about/sf-fed-blog/reports-death-of-cash-greatly-exaggerated/.
24 Morten Linnemann Bech, Umar Faruqui, Frederik Ougaard, and Cristina Picillo, “Payments are
a-changin’ but cash still rules,” Bank for International Settlements Quarterly Review (Mar. 11,
2018)https://www.bis.org/publ/qtrpdf/r_qt1803g.htm.
25 The authors suggest a few explanations for lingering cash demand: expanded ATM infrastructure,
which makes accessing cash easier; low interest rates, which lowers the opportunity cost of holding cash;
and increased use of cash as a store of value, backed by empirical evidence of increased holding of higher
note bills. Id.
26 As noted earlier, most money in the United States is not physical. But around $1.6 trillion of it is, and
that is not an insignificant amount. See Board of Governors of the Federal Reserve System, “Money Stock
and Debt Measures - H.6 Release,” Data Report (Nov. 29, 2018)
https://www.federalreserve.gov/releases/h6/current/h6.pdf.
7
physical cash transaction looks like. I take out a $100 bill and hand it to you, at which point you
have it and I don’t, and we can verify this by looking at our hands. Physical scarcity, which was
historically not available electronically, makes this possible. On the other hand, by keeping 27
ledgers of accounts and recording transactions in those ledgers, intermediaries like banks make
it possible for me to virtually “hand” you $100. After the transaction you will have the $100 not
because I gave you a token that I no longer have, but because an intermediary made a record in
their ledger deducting from my balance and adding to yours. As a result, bank-mediated
electronic payments are not peer-to-peer. They replace the scarcity of peer-to-peer cash
transactions with trust that the bank correctly records payments in their ledgers. This has
several implications.
First, it means that bank-mediated electronic payments are not permissionless in the same way
as cash. To hold and transfer digital money, you must first secure an account from an
intermediary. We do not tend to think in terms of “seeking permission” when we open an
account with a bank or mobile payments app, but that is what we do. Those firms are not
obligated to open an account for us. It is possible that you will be denied an account. In a
cashless world, not having an account with which to receive and send money is essentially
expulsion from society. This is very different from a cash system, exclusion from which is
impossible.
Even if you have an account, intermediaries have full control over whether they will faithfully
execute your instructions to transfer money, and may therefore choose to reject (or be
compelled by a government or other third party to reject) any particular transaction you
request. As a result, digital money is not censorship-resistant like cash. For whatever reason
(and there may be good reasons and bad reasons), your bank can decide not to allow you to
transact with certain people, to buy certain things, or to give to certain causes.
27 If we tried to do this same thing electronically, it would not work. First, I would have to have a digital
representation of the money to take the place of the $100 bill. Let’s say it’s a $100 file on my computer.
Then I would have to send you this $100 file electronically, perhaps by attaching it to an email the same
way I would send you a photo or a text file. The problem is this: When you receive an email from me with
a photo, you will have the photo—but what about me? Will I no longer have the photo? No. I will retain a
perfect digital copy of any data that I send to you electronically. So, if I send you a $100 file, you’d get it,
but I would retain a copy, which I could in turn send to a second and then a third person ad infinitum.
Computer scientists refer to this limitation as “the double spending problem,” and it is the result of the
inherent lack of scarcity in digital networks. To avoid the double spending problem and make electronic
payments possible, we employ third-party intermediaries like banks or payments companies. Here is how
it works: If I want to send you $100, I don’t send a message to you directly. Instead, I send a message to a
third party (say, a bank) that we both trust and with which we each have accounts. I tell the bank to
please deduct $100 from my account and to add it to yours. The bank, in turn, keeps a ledger of all
account-holder balances and transactions, and it dutifully adds a ledger entry that records the
subtraction and additions to our respective balances. In this way, we can easily send each other digital
money.
8
Even seemingly pro-social or benign financial activities can have unintended consequences.
Federal laws aimed at curbing money laundering and terrorist financing deputize banks to be
vigilant about money sent to certain “high-risk” countries. Because of this, charities providing
aid to war-torn areas or deprived populations have difficulty accessing reliable banking services
and thus getting money to those most in need.
28
High-risk countries tend to be among those most in need of humanitarian aid, so charities
understably focus their efforts there. When charities’ fund transfers are slowed and scrutinized,
or their bank accounts are shut down, the potential human cost is significant. What is worse,
banks’ appeals processes are opaque. One lawyer representing charities whose bank accounts
had been closed told the Wall Street Journal, “There’s no no in explanation...no opportunity
given to appeal. It’s adding to the problem in Syria and the Middle East.”29
Second, mediated electronic payments are never private. An intermediary must always know
the parties to, and the details of, a transaction in order to make the appropriate ledger entries.
Unlike cash, there is always a third-party witness to every transaction. In a cashless world, your
bank will know the exact time, amount, and counterparty to every transaction you engage in,
and can build a thorough profile of you. This information, especially if combined with other 30
data such as social network activity (see recent reports about Facebook and Google trying to
reach a deal with banks), can be a formidable tool. Or, if fallen to wrong hands, it can be a 31
powerful weapon.
32
28 Rob Barry and Rachel Louise Ensign, “Cautious Banks Hinder Charity Financing,” Wall Street Journal
(Mar. 30, 2016), https://www.wsj.com/articles/cautious-banks-hinder-charity-financing-1459349551.
29 Id.
30 Institutions already hold detailed data-based profiles of many people. The New York Times recently
investigated one woman’s use of several smartphone apps and found that companies were compiling a
comprehensive profile of the woman—based in part by her trips to Planned Parenthood, Weight
Watchers, and her ex-boyfriend’s house—to sell to advertisers and financial institutions. See: Jennifer
Valentino-DeVries, Natasha Singer, Michael H. Keller, and Aaron Krolik, “Your Apps Know Where You
Were Last Night, and They’re Not Keeping It Secret,” New York Times (Dec. 10, 2018)
https://www.nytimes.com/interactive/2018/12/10/business/location-data-privacy-apps.html. 31 Emily Glazer, Deepa Seetharaman, and AnnaMaria Andriotis, “Facebook to Banks: Give Us Your Data,
We’ll Give You Our Users,” Wall Street Journal (Aug. 6, 2018)
https://www.wsj.com/articles/facebook-to-banks-give-us-your-data-well-give-you-our-users-153356404
9.
32 See, for example: Ben Sasse, “Senator Sasse: The OPM Hack May Have Given China a Spy Recruiting
Database,” WIRED (Jul. 9, 2015)
https://www.wired.com/2015/07/senator-sasse-washington-still-isnt-taking-opm-breach-seriously/;
John R. Schindler, “China’s Spies Hit the Blackmail Jackpot With Data on 4 Million Federal Workers,” The
Daily Beast (Jun. 11, 2015)
https://www.thedailybeast.com/chinas-spies-hit-the-blackmail-jackpot-with-data-on-4-million-federal-
9
The bleeding edge of financial surveillance and profiling can be found in China. As the New
York Times has noted, “China is systematically and rapidly doing away with paper money and
coins.” Cash transactions are being replaced by mobile payments, which account for over $16 33
trillion annually—over 100 times more than in the U.S. The move away from cash in China 34
happened in just a few years. While cash accounted for 96 percent of payments in 2012, today 35
that number is below 15 percent. As of 2018, more than one-half billion Chinese use mobile 36
payments.
37
Tencent’s WeChat Pay and Alibaba’s AliPay are the dominant payment platforms in China, with
a combined market share of 92 percent. These two companies have unprecedented visibility 38
into almost all consumer transactions and are using the data they are gathering to develop
credit scores for every consumer. The scores look not just at creditworthiness, but at social 39
media and consumption behavior as well to determine “whether [the consumer’s] social
behavior is healthy.”40
workers.
33 Paul Mozur, “In Urban China, Cash Is Rapidly Becoming Obsolete,” New York Times (Jul. 15, 2017)
https://www.nytimes.com/2017/07/16/business/china-cash-smartphone-payments.html.
34
Id.; see also: Don Weinland and Sherry Fei Ju, “China’s Ant Financial shows cashless is king,” Financial
Times (Apr. 13, 2018) https://www.ft.com/content/5033b53a-3eff-11e8-b9f9-de94fa33a81e; Jeppe
Saarinen, “Mobile Payments in China: Why Foreign Businesses Should Adopt a Strategy,” China Briefing
(Aug. 29, 2018)
http://www.china-briefing.com/news/mobile-payments-china-foreign-businesses-china-adopt-strategy/
.
35 Paul Mozur, “In Urban China, Cash Is Rapidly Becoming Obsolete,” New York Times (Jul. 15, 2017)
https://www.nytimes.com/2017/07/16/business/china-cash-smartphone-payments.html.
36 Jeppe Saarinen, “Mobile Payments in China: Why Foreign Businesses Should Adopt a Strategy,” China
Briefing (Aug. 29, 2018)
http://www.china-briefing.com/news/mobile-payments-china-foreign-businesses-china-adopt-strategy/
.
37 Xiang Bo, “More than half billion Chinese pay by mobile phones: report,” XinhuaNet (Jul. 19, 2018)
http://www.xinhuanet.com/english/2018-07/19/c_137335685.htm.
38 Jeppe Saarinen, “Mobile Payments in China: Why Foreign Businesses Should Adopt a Strategy,” China
Briefing (Aug. 29, 2018)
http://www.china-briefing.com/news/mobile-payments-china-foreign-businesses-china-adopt-strategy/
.
39 Mara Hvistendahl, “Inside China’s Vast New Experiment in Social Ranking,” WIRED (Dec. 14, 2017)
https://www.wired.com/story/age-of-social-credit/.
40 Josh Horwitz, “China’s Tencent is quietly testing a ‘social credit score’ based on people’s online
behavior,” Quartz (Aug. 8, 2017)
10
What counts as “healthy” behavior will be influenced by the Chinese government, which has
encouraged and guided the development of Tencent and Alibaba’s scoring systems. Beijing sees
them as the backbone of a Social Credit System to “rate each and every one of the nation's 1.3
billion citizens by 2020 using metrics that include whether they pay their bills on time,
plagiarize schoolwork, break traffic laws or adhere to birth-control regulations.”41
Purchasing habits are noted by the financial intermediaries and can be used as an input to your
Social Credit score. As an Alibaba executive told a Chinese magazine in 2015, the company 42
judges the purchases consumers make. “Someone who plays video games for 10 hours a day, 43
for example, would be considered an idle person, and someone who frequently buys diapers
would be considered as probably a parent, who on balance is more likely to have a sense of
responsibility.”44
A high Social Credit score will earn a citizen certain privileges. Today that includes expedited
permission to travel abroad and access to express lanes at airports, but in the future it could 45
grant your children placement at desired schools. A low Social Credit score, however, will lead 46
to punishment, according to official government policy, including, “slower internet speeds;
restricted access to restaurants, nightclubs or golf courses; and the removal of the right to
https://qz.com/1049669/chinas-tencent-hkg-0700-is-quietly-testing-a-social-credit-score-based-on-peo
ples-online-behavior/.
41 Julie Makinen, “China prepares to rank its citizens on ‘social credit,’” Los Angeles Times (Nov. 22, 2015)
https://www.latimes.com/world/asia/la-fg-china-credit-system-20151122-story.html; Josh Horwitz,
“China’s Tencent is quietly testing a ‘“social credit score’” based on people’s online behavior,” Quartz
(Aug. 8, 2017)
https://qz.com/1049669/chinas-tencent-hkg-0700-is-quietly-testing-a-social-credit-score-based-on-peo
ples-online-behavior/; Sean O’Kane, “China will ban people with poor ‘social credit’ from planes and
trains,” The Verge (Mar. 16, 2018)
https://www.theverge.com/2018/3/16/17130366/china-social-credit-travel-plane-train-tickets.
42 Amy Hawkins, “Chinese Citizens Want the Government to Rank Them,” Foreign Policy (May 24, 2017)
https://foreignpolicy.com/2017/05/24/chinese-citizens-want-the-government-to-rank-them/; Julie
Makinen, “China prepares to rank its citizens on ‘social credit,’” Los Angeles Times (Nov. 22, 2015)
https://www.latimes.com/world/asia/la-fg-china-credit-system-20151122-story.html.
43 Celia Hatton, “China 'social credit': Beijing sets up huge system,” BBC (Oct. 25, 2015)
https://www.bbc.com/news/world-asia-china-34592186.
44 Id.
45 Rachel Botsman, “Big data meets Big Brother as China moves to rate its citizens,” WIRED UK (Oct. 20,
2017) https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion; Julie
Makinen, “China prepares to rank its citizens on ‘social credit,’” Los Angeles Times (Nov. 22, 2015)
https://www.latimes.com/world/asia/la-fg-china-credit-system-20151122-story.html.
46 Maya Wang, “China’s Chilling ‘Social Credit’ Blacklist,” Wall Street Journal (Dec. 11, 2017)
https://www.wsj.com/articles/chinas-chilling-social-credit-blacklist-1513036054.
11
travel freely abroad[.]” Already, over six million people are banned from taking flights, and 47
another 1.65 million are not allowed to take trains.
48
Your score doesn’t just affect you, but your friends and family as well. If your friend’s score
drops because of something she said or purchased, your score will be dragged down with hers as
well. This means that not only will people have an incentive to watch what they say and buy, 49
but to police their friends and family as well. Not only will there be peer pressure to conform to
“healthy behavior,” but official government policy states that the “new system will reward
those who report acts of breach of trust.” In tips for individuals looking to improve their 50
ranking, Alibaba today warns about the downsides of friending people with low scores.
51
This kind of social control is made possible by intermediation. This kind of social control
emerges naturally as the economy becomes increasingly dependent on dominant centralized
intermediaries. These intermediaries, as a matter of course, surveil and record every action,
which can then be judged and enforced algorithmically. The privacy and censorship resistance
that permissionless cash affords serves as a check on such a systems of social control.
Today, Alibaba’s and Tencent’s credit systems are technically voluntary, but in the near future
(perhaps as early as 2020) they will be mandatory for everyone in China. Similarly, cash is 52
currently still available, but in order for the Social Credit System to work optimally, the
government has every incentive to eliminate cash and replace it with intermediated money.
As should be clear, intermediation is not without consequence. An end to cash, a technology
that we take for granted, will have an effect on liberties that we also take for granted. A cashless
society cannot be an open society.
47 Rachel Botsman, “Big data meets Big Brother as China moves to rate its citizens,” WIRED UK (Oct. 20,
2017) https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion.
48 Id.; see also: Sean O’Kane, “China will ban people with poor ‘social credit’ from planes and trains,” The
Verge (Mar. 16, 2018)
https://www.theverge.com/2018/3/16/17130366/china-social-credit-travel-plane-train-tickets. 49 Rachel Botsman, “Big data meets Big Brother as China moves to rate its citizens,” WIRED UK (Oct. 20,
2017) https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion.
50 Celia Hatton, “China 'social credit': Beijing sets up huge system,” BBC (Oct. 25, 2015)
https://www.bbc.com/news/world-asia-china-34592186.
51 Rachel Botsman, “Big data meets Big Brother as China moves to rate its citizens,” WIRED UK (Oct. 20,
2017) https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion.
52 Julie Makinen, “China prepares to rank its citizens on ‘social credit,’” Los Angeles Times (Nov. 22, 2015)
https://www.latimes.com/world/asia/la-fg-china-credit-system-20151122-story.html
12
The Open Society
The opposite of an authoritarian state like China is an open society, the hallmark of which is a
free competition of ideas that drives progress. In an open society, challenges to status quo 53
thinking are not only tolerated, they are valued and protected. An open society eschews
monism, “the ancient belief that there is a single harmony of truths into which everything, if it
is genuine, in the end must fit” in favor of value pluralism, a celebration of variety and diversity
within society.
54
An open society works only if individuals are free to engage in critical thinking to develop,
communicate, critique, and accept or reject ideas. That, in turn, requires freedom of thought
and expression and association, which is why open societies tend to be liberal democracies that
guarantee civil liberties under the rule of law. The equality and dignity of individuals are also 55
paramount values in liberal open societies. Persons are equal in worth and rights and should be
treated by their government and their fellow citizens with dignity—i.e., not as means to an end,
but as ends in themselves.
56
53 See, generally: Karl Popper, The Open Society and Its Enemies, New One-Volume Edition. Princeton, NJ:
Princeton University Press (2013).
54 Isaiah Berlin, “Isaiah Berlin on Privacy,” selection from “The First and the Last,” New York Review of
Books, Vol. XLV, No. 8 (1998), available at https://www.cs.utexas.edu/users/vl/notes/berlin.html. 55 Benjamin Franklin (writing as “Silence Dogood,” one of his many pseudonyms) articulated this
necessity when he wrote: “Without Freedom of Thought, there can be no such Thing as Wisdom; and no
such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by
it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the
only Bounds it ought to know.” Silence Dogood, “No. 8,” The New-England Courant (Jul. 9, 1722) available
at https://founders.archives.gov/documents/Franklin/01-01-02-0015. Franklin and the other American
Founders were inspired by Enlightenment thinkers such as John Locke who articulated the contours of
liberal governance based on the “natural state of...equality” inherent to man. Locke wrote: “The freedom
then of man, and liberty of acting according to his own will, is grounded on his having reason, which is
able to instruct him in that law he is to govern himself by, and make him know how far he is left to the
freedom of his own will.” The liberal state is necessary only to the extent that it allows free individuals to
fully exercise their will without interfering with others’ freedoms to do the same. See generally: John
Locke, Two Treatises of Government. ed. Thomas Hollis. London: A. Millar et al. (1764) available at:
https://oll.libertyfund.org/titles/locke-the-two-treatises-of-civil-government-hollis-ed
56 Many people are familiar with the “categorical imperative” that guides the moral philosophy of
Immanuel Kant: “Act only according to that maxim by which you can at the same time will that it
should become a universal law.” Less well known is the philosopher’s alternative formulation of his core
moral principle offered later in his Groundwork of the Metaphysics of Morals: “Act so that you treat
humanity, whether in your own person or in that of another, always as an end and never as a means
only.” See: James Rachels, “Kantian Theory: The Idea of Human Dignity,” from The Elements of Moral
Philosophy. New York, NY: Random House Press (1986): pgs. 114-117, 122-123.
13
The case for an open society based on liberal democracy has been made well elsewhere, so we 57
will not rehearse it here and will instead assume that the reader finds its relative merit
uncontroversial. The case we will make, however, is that cash is a necessary condition for the
existence of an open society. That is, that a cashless society cannot fully be an open society
because, as we have seen, eliminating cash means that all transactions are necessarily
intermediated, and intermediation undermines privacy and autonomy—two values necessary
for the individual liberty and human dignity that undergird an open society.
Privacy is essential to freedom of thought, speech, and association not only because it prevents
would-be censors from discovering thoughtcrimes, but also because of the chilling effects that
come from knowing one is being watched, especially by an authority. In his excellent history of
the Third Reich, Thomas Childers explains how the German people were changed by the fear of
being watched:
The American novelist Thomas Wolfe, who had traveled widely in Germany during the
Weimar years, was shocked on a return trip in the mid-1930s by the dramatic changes
that Hitler had wrought. He could hardly recognize the country he thought he knew.
“Here was an entire nation,” he wrote, “. . . infested with the contagion of an
ever-present fear. It was a kind of creeping paralysis which twisted and blighted all
human relations.” Yet, thinking back on day-to-day life in the Third Reich, most
Germans did not recall being consciously afraid. Instead they lived with a subliminal
fear; developing a sixth sense for survival; learning what to say, when, and to whom was
essential in daily life. A quick, almost reflexive glance over the shoulder to see who
might be watching or listening nearby was dubbed the “deutscher Blick,” the German
glance. Martha Dodd, the daughter of the American ambassador, recalled that
“whenever we wanted to talk, we had to look around corners and behind doors, watch
for the telephone and speak in whispers.” Many were convinced that their telephone
receivers were rigged to act as transmitters so that private conservations at home could
be listened to by the authorities. One defense was to place a tea cozy over the telephone
to muffle conversations. Berlin merchants couldn’t keep them on the shelves.
58
Additionally, without privacy—without the ability to control what one reveals to others about
oneself—it is more difficult to avoid becoming an instrument in someone else’s design, to
preserve one’s dignity. For example, consider this story published in the New York Times
Magazine in 2012:
57 Perhaps most famously by the United Nations’ Universal Declaration of Human Rights. Universal
Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), available at
https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.
58 Thomas Childers, The Third Reich: A History of Nazi Germany. New York, NY: Simon & Schuster (2017):
pgs. 321-322.
14
[A] man walked into a Target outside Minneapolis and demanded to see the manager.
He was clutching coupons that had been sent to his daughter, and he was angry,
according to an employee who participated in the conversation.
“My daughter got this in the mail!” he said. “She’s still in high school, and you’re
sending her coupons for baby clothes and cribs? Are you trying to encourage her to get
pregnant?”
The manager didn’t have any idea what the man was talking about. He looked at the
mailer. Sure enough, it was addressed to the man’s daughter and contained
advertisements for maternity clothing, nursery furniture and pictures of smiling infants.
The manager apologized and then called a few days later to apologize again.
On the phone, though, the father was somewhat abashed. “I had a talk with my
daughter,” he said. “It turns out there’s been some activities in my house I haven’t been
completely aware of. She’s due in August. I owe you an apology.”59
How did Target know that the girl was pregnant before she had told her father?
When you shop at Target you are assigned a unique identifier that is used to track everything
you buy. Target does not seek your consent to do this. Simply using a credit card is enough to
let Target start identifying and profiling you. By statistically comparing the shopping habits of
women who had voluntarily signed up for Target’s baby registry program (thus known to be
pregnant) with those of the broader public, the retailer can predict not only who is pregnant,
but “also estimate her due date to within a small window, so Target could send coupons timed
to very specific stages of her pregnancy.”60
It’s tempting to think, “So what?” Although the girl did not willingly reveal her pregnancy,
Target gleaned the fact from her purchasing history, which is a history of voluntary
interactions, even if the girl could not foresee what they would reveal. And it was indeed a fact,
after all, that she was pregnant, and not something she would be able to keep from her father
for long. There are deeper issues, however, and that is betrayed by how Target thinks about its
surveillance program.
Andrew Pole, the Target statistician who developed the pregnancy prediction program, had the
task put to him by the marketing department this way: “If we wanted to figure out if a customer
is pregnant, even if she didn’t want us to know, can you do that?”61
59 Charles Duhigg, “How Companies Learn Your Secrets,” New York Times Magazine (Feb. 16, 2012)
https://www.nytimes.com/2012/02/19/magazine/shopping-habits.html.
60 Id.
61 Id.
15
As the New York Times reported, “Using data to predict a woman’s pregnancy, Target realized
soon after Pole perfected his model, could be a public-relations disaster. So the question
became: how could they get their advertisements into expectant mothers’ hands without
making it appear they were spying on them? How do you take advantage of someone’s habits
without letting them know you’re studying their lives?” A Target executive explained the
solution:
“[W]e started mixing in all these ads for things we knew pregnant women would never
buy, so the baby ads looked random. We’d put an ad for a lawn mower next to diapers.
We’d put a coupon for wine glasses next to infant clothes. That way, it looked like all
the products were chosen by chance.
“And we found out that as long as a pregnant woman thinks she hasn’t been spied on,
she’ll use the coupons. She just assumes that everyone else on her block got the same
mailer for diapers and cribs. As long as we don’t spook her, it works.”
Not only did Target seek to gather information about individuals even if the individuals did not
want to give up the information, they also sought to hide what they were doing because they
understood it would be seen as an affront to human dignity. They were right. In the particular
case of the young woman, Target’s surveillance inadvertently robbed her of her ability to decide
when and how to tell her father about her pregnancy.
Other examples abound. Companies may not always divulge their targeted advertising
campaigns like Target has, but much modern marketing relies on such impersonal data-driven
methods.
Firms assuage the public of the “creepiness factor” by pointing out that their datasets are
de-individualized, which means that the advertising profiles they build for people are not
directly connected to their name. Someone is merely “Potential Customer #46274, unmarried, 62
high school student, with likely interests in baby items and frozen foods,” or whatever the case
may be. However, since that profile is still tied to one’s identity, and used to try to affect their
behavior, the fact that a literal name is not associated may be cold comfort.
Companies pay for access to this data to try and coax people to behave the way they
want—namely, by buying more of their product or services. When advertising merely broadcasts
general price or product information to the public, it can be a helpful tip (or a minor
62 See, for example: Mark Bergen and Jennifer Surane, “Google and Mastercard Cut a Secret Ad Deal to
Track Retail Sales,” Bloomberg (Aug. 30, 2018)
https://www.bloomberg.com/news/articles/2018-08-30/google-and-mastercard-cut-a-secret-ad-deal-totrack-retail-sales.
16
annoyance). But when marketing is driven by a comprehensive secret profile of imputed
lifestyle attributes, it can become invasive and troubling.
The case of a major retailer targeting pregnant women with a campaign to ensure future
consumer loyalty is alarming. But not all behavioral marketing is necessarily sinister. The point
is that a world without cash gives consumers less of an ability to voluntarily exit such schemes,
since all of their purchases would be intermediated and therefore up for grabs to marketing
profilers who may not respect our privacy and autonomy.
Privacy’s fundamental relationship to human dignity must be emphasized. Samuel Warren 63
and Louis Brandeis’s foundational article, “The Right to Privacy,” not only noted the physical
and pecuniary harms dealt by privacy violations, but also “spiritual” wrongs, injuries to
“estimates of [ourselves],” assaults upon our “own feelings,” and blows to our “inviolate
personality”—that is, our human “dignity,” to which the authors directly refer in their
conclusion. We do not desire privacy merely for its beneficial effects, the dignity it affords is a 64
fundamental part of being human.
Given that consumers don’t affirmatively consent to retail surveillance, what can one possibly
do to avoid losing one’s privacy? The answer is to pay with cash; to transact anonymously.
Cash serves as an escape valve in our increasingly intermediated and therefore surveilled world.
It’s not that it should be the only option, or even the option one should choose most of the
time. But it should be an option. Without it, there is no choice but to have one’s every purchase
be watched and recorded and the information used without one’s consent. Without cash there
is no exit—no chance for the kind of dignity-preserving privacy that undergirds an open
society.
Cash is also necessary to retain agency and autonomy. Autonomy can be understood as the
power to make decisions for oneself without interference from others. It’s the ability to try
things one’s way, to succeed and be rewarded, or to make mistakes and learn from them. As
with personal privacy, without individual autonomy there can be no meaningful open society.
The law surrounding prior restraint of publication in the United States is a good illustration of
how an open society respects autonomy. It holds that while one may be held to account for
one’s speech after the fact, censorship before publication is not allowed. This ancient rule of
Anglo-American law was explained by English jurist William Blackstone this way:
63 Edward J. Bloustein, “Privacy as an aspect of human dignity: an answer to Dean Prosser,” 39 N.Y.U. L.
Rev. (1964): pgs. 962-1007, available at: https://heinonline.org/HOL/P?h=hein.journals/nylr39&i=974. 64 Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” 9 Harv. L. Rev. 5 (1890), available at:
http://www.gutenberg.org/files/37368/37368-h/37368-h.htm.
17
The liberty of the press is indeed essential to the nature of a free state; but this consists
in laying no previous restraints upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mischievous or illegal, he must take the
consequence of his own temerity.
65
Even when the government might know that one is going to publish something potentially
harmful or illegal, it is not allowed to prevent one from publishing it, though it may seek to
punish one for it after the fact. That is, it must respect one’s autonomy. As the Supreme Court
has put it, “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’
speech, prior restraint ‘freezes’ it at least for the time.”66
The same logic that applies to speech is applicable to association and other freedoms valued by
an open society. Respect for autonomy is how such freedoms are given meaning; a legal right is
useless if one can be prevented from exercising it. The more intermediated a society is,
however, the easier and more tempting it becomes to effect prior restraints on the free exercise
of rights.
In more liberal societies, censorship is typically not aimed at mainstream views, but rather at
speech that is unpopular and controversial—that is, speech the protection of which is the
hallmark of an open society. It’s therefore no surprise that a target of attempts to use financial
intermediaries for prior restraint has been the National Rifle Association (NRA). The NRA may
be a controversial organization, but it is certainly one rooted in the constitutional bedrock of
our open society. After all, for good or ill, the NRA is a free association of individuals that exists
to engage in speech to defend a constitutional right. The group is not just a legal and legitimate
voice, it speaks for millions of Americans.
Someone who values an open society and also disagrees with the NRA would seek to meet
speech with speech and ideas with ideas; they would not, however, seek to silence the NRA
from speaking at all. Preventing “unhealthy” views from being expressed is what you would
expect to see in an authoritarian, closed society like China. Yet this is how a press release from
the State of New York issued last year began:
Governor Andrew M. Cuomo today directed the Department of Financial Services to
urge insurance companies, New York State-chartered banks, and other financial services
companies licensed in New York to review any relationships they may have with the
National Rifle Association and other similar organizations. Upon this review, the
65 William Blackstone. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769,
Volume 4. Chicago: University of Chicago Press (1979): page 152.
66 Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).
18
companies are encouraged to consider whether such ties harm their corporate
reputations and jeopardize public safety.
67
If the governor’s request was too subtle, Financial Services Superintendent Maria Vullo made it
clear later in the same press release, stating, “DFS urges all insurance companies and banks
doing business in New York to join the companies that have already discontinued their
arrangements with the NRA[.]” This is remarkable. Governor Cuomo is telling financial 68
intermediaries over which he has serious power that they must cut off one of his political
opponents, not because that opponent broke any law, but because it engages in speech and
advocacy at odds with the governor’s views.
69
While the governor cannot simply ban the NRA’s speech, he clearly feels less constrained to
threaten intermediaries that he regulates and whose continued operations depend on
permission from the state. Because New York is the world’s financial hub, the state has
authority over just about every bank and fintech firm with operations in the country. As a
result, losing access to New York-regulated financial intermediaries is practically a death
sentence for any advocacy group. As the NRA put it in a suit filed against Cuomo, “If the NRA is
unable to collect donations from its members, safeguard the assets endowed to it, apply its
funds to cover media buys and other expenses integral to its political speech, and obtain basic
corporate insurance coverage, it will be unable to exist as a not-for-profit or pursue its
advocacy mission.”70
This is not just a viewpoint-based prior restraint on one organization’s ability to speak; it is
also a restraint on the autonomy of millions of citizens who wish to make perfectly legal and
legitimate contributions, to engage in free association and collective speech. Such prior
67 Office of Governor Andrew M. Cuomo, “Governor Cuomo Directs Department of Financial Services to
Urge Companies to Weigh Reputational Risk of Business Ties to the NRA and Similar Organizations,”
Press Release (Apr. 19, 2018)
https://www.governor.ny.gov/news/governor-cuomo-directs-department-financial-services-urge-compa
nies-weigh-reputational-risk.
68 Id.
69 The DFS went beyond idle threats. It fined two insurance companies, Lockton Companies and Illinois
Union Insurance Company, $7 million and $1.3 million respectively for underwriting an NRA-branded
insurance program called “carry guard.” See: New York Department of Financial Services, “DFS fines
Lockton Companies $7 million for underwriting NRA-branded ‘carry guard’ insurance program in
violation of New York insurance law,” Press Release (May 2, 2018)
https://www.dfs.ny.gov/about/press/pr1805021.htm; New York Department of Financial Services, “DFS
fines Chubb subsidiary Illinois Union Insurance Company $1.3 million for underwriting NRA-branded
‘carry guard’ insurance program in violation of New York insurance law,” Press Release (May 7, 2018)
https://www.dfs.ny.gov/about/press/pr1805071.htm.
70 National Rifle Association of America v. Cuomo et al, No. 18-CV-00566-TJM-CFH (N.D.N.Y., Jul. 20,2018)
available at https://drive.google.com/file/d/15Ld2KEw6SqsvhOYgKUl3SXFTDoz4J3IA/view.
19
restraint is only possible because of our dependence on financial intermediaries. While physical
cash could serve as a last resort, it is not a practical alternative in our increasingly digital world.
It is therefore the reliance on intermediaries that is at odds with individual autonomy, an
important basis for an open society.
The risk to autonomy posed by a dependence on financial intermediaries exists even if there
were no egregious government actions like Cuomo’s. In an article published months before the
governor’s edict, New York Times columnist Andrew Ross Sorkin made the case that the
financial industry should, of its own accord, use its “leverage over the gun industry” to
“effectively set new rules for the sales of guns in America[.]” If Mastercard were to bar 71
customers from using their credit cards for certain gun purchases, he wrote, “assault weapons
would be eliminated from virtually every firearms store in America because otherwise the
sellers would be cut off from the credit card system.”72
While one may not like guns or speech advocating for the right to bear arms, it is important to
recognize that maintenance of an open society is not compatible with financial intermediaries
having this much power. Dependence on intermediaries means not only constant and
unavoidable surveillance, but also the power to thwart individual autonomy. Today it may be
gun advocates that are targeted, but tomorrow it could be abortion providers that are dropped 73
by financial intermediaries. Groups such as Muslim charities, sexual fetishist communities, 74 75
71 Andrew Ross Sorkin, “How Banks Could Control Gun Sales if Washington Won’t,” New York Times (Feb.
18, 2018) https://www.nytimes.com/2018/02/19/business/banks-gun-sales.html.
72 Id.
73 Meaghan Winter, “The Most Difficult Business You Could Run,” Bloomberg Businessweek (Feb. 24, 2016)
https://www.bloomberg.com/features/2016-abortion-business/.
74 Lawrence White, “Hundreds of UK charities hit by global crackdown on illegal funds,” The Independent
(Jul. 27, 2017)
https://www.independent.co.uk/news/business/news/uk-charities-illegal-fund-crackdown-money-hundr
eds-oxfam-save-the-children-hsbc-a7862261.html.
75 Jeremy Malcolm, “Payment Processors are Still Policing Your Sex Life, and the Latest Victim is
FetLife,” Electronic Frontier Foundation (Mar. 15, 2017)
https://www.eff.org/deeplinks/2017/03/payment-processors-are-still-policing-your-sex-life; Or even
those misidentified as sexual fetishists: Violet Blue, “Why PayPal’s crackdown on ASMR creators should
worry you,” Engadget (Sep. 14, 2018)
https://www.engadget.com/2018/09/14/paypal-ban-asmr-sound-art-therapy/.
20
and socialist booksellers have already experienced such extralegal sanctioning. It’s no 76
surprise that the American CIvil Liberties Union filed a brief in support of the NRA.
77
Cash and financial intermediaries both have important roles in an open society. Cash affords
people with autonomy and privacy. Financial intermediaries provide convenience. Both
structures, however, present challenges. Cash can be used to facilitate crimes or evade taxes.
Financial intermediaries surveil our every transaction and can limit what we are allowed to do
with our own funds, becoming de facto legislators, judges, and juries. The challenge for open
societies is to allow both structures to co-exist while maintaining a legal system that
proportionately addresses downsides.
Another challenge for open societies is to ensure that, as more commerce is undertaken on the
internet and via mobile devices, we maintain an escape valve that allows individuals to
safeguard their privacy and autonomy. One way to do this is to foster the ongoing development
of electronic cash.
The Moral Case for Electronic Cash
Cash is a bearer, peer-to-peer, permissionless, and privacy-preserving form of money. In a
world without cash, all transactions are intermediated. That means that there is no way to
engage in a transaction that is not recorded by a third party, and there is no way to engage in a
transaction without the permission of a third party. Such complete intermediation is at odds
with the essential values of an open society. Indeed, intermediation undergirds the systems of
control employed by authoritarian states like China.
Cash is essential to an open society. It is an escape valve that lets us protect our privacy,
dignity, and autonomy. It is therefore imperative that we preserve our ability to use it. Yet that
is not enough. As we move to an increasingly online world in which physical cash is not
practical for many transactions, we must also develop and foster electronic cash.
Electronic cash is exactly what it sounds like: a bearer, peer-to-peer, permissionless, and
privacy-preserving form of money that is not paper or metal, but digital. Bitcoin, the world’s
first cryptocurrency, was created to be that. While it is bearer, peer-to-peer, and
permissionless, it is not yet completely privacy-preserving. The Bitcoin system still leaves a
sufficient digital trail to make it traceable in a way that physical cash is not. For close to a 78
decade, cryptographers and computer scientists have been working to improve on Bitcoin’s
76 Cory Doctorow, “Paypal blacklists payments for a World Socialists pamphlet about the Iranian
opposition,” BoingBoing (Mar. 29, 2018) https://boingboing.net/2018/03/29/oh-paypal.html.
77 Brief for the ACLU as Amicus Curiae, NRA v. Cuomo (2018), available at
https://www.aclu.org/legal-document/nra-v-cuomo-aclu-amicus-brief 78 Adam Ludwin, “How Anonymous is Bitcoin?” Coin Center (Jan. 20, 2015)
https://coincenter.org/entry/how-anonymous-is-bitcoin.
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design in order to build a cryptocurrency that is not only permissionless and
censorship-resistant, as Bitcoin is, but also private. Today there are several privacy-preserving
cryptocurrencies under development, including Beam, Dash, Grin, MobileCoin, Monero, and
Zcash, which hold the promise of being true electronic cash. It is also likely that enhanced
privacy will eventually be added to Bitcoin as well.
Privacy is a notoriously difficult concept to define, but a useful definition was put forth by
mathematician and computer scientist Eric Hughes: “Privacy is not secrecy. A private matter is
something one doesn’t want the whole world to know, but a secret matter is something one
doesn’t want anybody to know. Privacy is the power to selectively reveal oneself to the world.”79
In this formulation, it is interesting to note that Hughes does not frame privacy as a right to be
respected by others, but as a power to be exercised by individuals.
Without denying conceptions of privacy as a right, which necessarily imposes duties on others
and must be enforced by government, the case we make here is simply for the freedom to guard
what one reveals about oneself to the world, and to build and use technology (like cash) to do
so. Not only is that a more modest goal, but additionally if privacy is to be a check on
government overreach, then its enforcement cannot depend on government. The conception of
privacy we advance here is therefore something that can be exercised individually and does not
depend on anyone else. Think of the $100 bill dropped anonymously into a church’s poor box.
The donor’s privacy depends on no one but himself. The donor’s ability to retain his privacy,
however, turns on the technology available to him.
Physical cash—from seashells, to gold coins, to paper notes—is a technology that for millennia
has allowed individuals to exercise autonomy and retain privacy. As we move to a world that is
increasingly dematerialized, with all the attendant benefits and efficiencies, we must preserve
the ability to transact autonomously and privately that physical cash has heretofore made
possible. Cryptocurrency that is both permissionless and private is a technology that can allow
individuals to continue to live in an open society even as life is increasingly digitized. It is a
tool that can allow one to shop at physical or online stores alike and reduce the risk of being
tracked. It is a tool that allows one to contribute to advocacy groups that have powerful
political enemies. And it is a tool that dissidents can use to resist authoritarian states.
Caring deeply about the freedom that cash engenders is part and parcel of the Western liberal
tradition. While many Nordic and Asian countries seem to be racing towards adopting a
cashless society, in Germany the trend is decidedly the opposite. Given their experience with
two authoritarian regimes—one fascist and one communist—Germans seem to appreciate how
cash helps protect their freedom, privacy, and autonomy. Germans use cash for 80 percent of all
transactions, and proposals to move in a more cashless direction have been met with
79 Eric Hughes, “A Cypherpunk’s Manifesto,” (1993)
https://www.activism.net/cypherpunk/manifesto.html
22
widespread public protest. Germans also carry about twice as much cash as people in the U.S., 80
and tens of thousands of restaurants and shops, from big to small, are cash only. In 81 82
Germany, the major chains Aldi and Ikea did not begin accepting credit cards until two years
ago.
83
“Cash, to me, is an important public good by which you measure the transparency and legal
order of a society, and also the respect for the individual and the private sphere,” Max Otte, a
German economist who leads Save Our Cash, a national campaign opposing restrictions on
cash, has explained. “‘Why do Germans like cash?’ is the wrong question,” he told Bloomberg.
Instead, Otte asks, “Why have others shifted to a cashless society so quickly?” Indeed, “cash is 84
printed freedom” is a German expression. Unlike other polities that have taken for granted the 85
freedom that cash confers on individuals, Germans understand that cash is an individual check
on the kind of all-out state control that we see in China.
Peer-to-peer electronic cash is at most 10 years old. Before that, all online transactions were
necessarily intermediated. This means that there was a period of decades in which digital
transactions were synonymous with intermediated transactions because there simply was no
alternative. As a result, it may be that individuals, firms, and governments have come to see
electronic transactions as inherently traceable and censorable. But there is nothing natural or
fixed about such a state of the world; there is no reason it has to be that way. Indeed it may
have been only a matter of time for individuals who value the capabilities that physical cash
technology afford would successfully replicate it digitally. Those who build the technology and
advocate for its use today share with the German people an understanding of the fragility of
liberty and how technologies of individual empowerment are essential to retaining an open
society.
80 Matthew Campbell, “Germany is Still Obsessed With Cash,” Bloomberg Markets (Feb. 5, 2018)
https://www.bloomberg.com/news/features/2018-02-06/germany-is-still-obsessed-with-cash; Mihret
Yohannes, “German rallying cry is ‘cash only,’” USA Today (Jul. 16, 2015)
https://www.usatoday.com/story/news/world/2015/07/16/germans-love-cash-and-suspicious--credit-deb
t/30230061/.
81 Matt Philips, “Why Germans pay cash for almost everything,” Quartz (Sep. 17, 2014)
https://qz.com/262595/why-germans-pay-cash-for-almost-everything/.
82 Matthew Campbell, “Germany is Still Obsessed With Cash,” Bloomberg Markets (Feb. 5, 2018)
https://www.bloomberg.com/news/features/2018-02-06/germany-is-still-obsessed-with-cash.
83 Id.
84 Id.
85 Id. See also: Hardy Graupner, “Should paper money be abolished?” Deutsche Welle (May 18, 2015)
https://www.dw.com/en/should-paper-money-be-abolished/a-18456046.
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An open society is not costless. Free speech is abused by demagogues and used to spread truly
harmful ideas. Freedom of religion protects cultists. Freedom of movement is exploited by
terrorists. Yet it would be ridiculous to do away with these freedoms and the benefits they
bestow in order to eliminate their costs. The same is true about technologies that enable an
open society. Cars are often used to rob banks, email to commit fraud, and web forums to post
child pornography. We do not, and should not, restrict individuals’ right to use technologies
solely because they can be misused.
Without a doubt, electronic cash will be used by some in the course of breaking the law. That is
an attendant cost to the benefits described above. If there was no electronic cash (or physical
cash for that matter), and all transactions were surveilled and subject to control, then law
enforcement might have an easier time prosecuting criminals—just as they would have an
easier time spotting crime if all houses were made of glass. But that would not be a better
world. It would therefore make no sense to seek to restrict the freedom of all citizens to use
cash—to undermine the underpinnings of an open society—in order to make it easier to catch a
minority of people who commit crimes. Justice Douglas was right when he wrote, “I am not yet
ready to agree that America is so possessed with evil that we must level all constitutional
barriers to give our civil authorities the tools to catch criminals.” The fact that criminals will 86
exploit freedom and technology to break the law is the cost of living in an open society, but it is
outweighed by the benefits. And, making a thing illegal will not necessarily stop criminals from
using it.
The good news is that over time we have developed an effective way to deal with the criminal
use of cash. Financial institutions throughout the world are required to identify their
customers, keep records, and report suspicious activities to government authorities. Among 87
such suspicious activities are the withdrawal or deposit of large sums of cash or otherwise
questionable transactions involving cash. There is no reason why the same reasonable 88
regulatory regime that is applied to anonymous and untraceable physical cash could not be
applied to electronic cash, and in almost all respects it is already. Doing so would allow law 89
abiding individuals to withdraw and use electronic cash as a useful form of payment and
86 California Bankers Assn. v. Shultz, 416 U.S. 21 (1974) available at
https://caselaw.findlaw.com/us-supreme-court/416/21.html. 87 For example, the Financial Action Task Force (FATF), also known as the Groupe d’action financière
(GAFI), is an international intergovernmental organization comprised of 38 members which develops and
recommends policies to combat money laundering and other crimes. These policies are directed
primarily at financial institutions because of the critical role that banks play in international money
transfers. See: Kern Alexander, “The International Anti-Money-Laundering Regime: The Role of the
Financial Action Task Force,” Journal of Money Laundering Control, Vol. 4, No. 3 (2001): pgs. 231-248,
https://doi.org/10.1108/eb027276. 88 Id. 89 US Department of the Treasury, Financial Crimes and Enforcement Network, “Application of FinCEN’s
Regulations to Persons Administering, Exchanging, or Using Virtual Currencies” Guidance
FIN-2013-G001 (Mar. 18, 2013) http://fincen.gov/statutes_regs/guidance/html/FIN-2013
-G001.html.
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escape-valve from constant monitoring while ensuring that law enforcement has the ability to
target the large scale and systematic criminal use of the technology. What this means in
practice is that enforcing the law against some criminals, especially small-scale ones, will not
be easy and will instead require the same kind of resource-intensive police work (often
undercover) necessary to apprehend those who use physical cash. Those parts of a criminal
enterprise that employ electronic cash on a larger scale will eventually interface with the
regulated financial system, however, and at that point law enforcement should have the same
tools at their disposal as they do with physical cash. Regulators can and should treat electronic
cash the same as physical cash.
Conclusion
The U.S. is far from being a cashless society, and it has constitutional protections that should
serve as a bulwark against overreach from an authoritarian state. But eternal vigilance is the
price of liberty. While the likelihood that a China-style social credit system will be enacted in
the U.S. is low, there are similar threats that citizens should be able to guard against. As we
have seen, the more intermediated our financial lives become, the more tempted corporate
entities and government officials will be to spy on individuals or take steps to restrict how
individuals can transact—often with the best of intentions.
In 2014, for example, the Transportation Security Administration sought bids from vendors to
build a passenger screening system that would rely on “commercial data” including “wide
ranging data such as purchase information.” The TSA did not explain what kinds of purchases 90
could be deemed red flags, or as Chinese authorities might put it, “unhealthy.” More recently,
online financial intermediaries like PayPal, Stripe, and Patreon have shut down the accounts of
users on both of the political spectrum for the fringe views they espoused. And in 2014, J.P. 91
Morgan lost to hackers the private financial records of over 100 millions customers.
92
Cash—and in an increasingly digital world, electronic cash—is a tool that law abiding private
individuals can use to protect their privacy, autonomy, and ultimately their dignity. It should
90 Tim Cushing, “The TSA Wants To Read Your Facebook Posts And Check Out Your Purchases Before It
Will Approve You For PreCheck,” TechDirt (Jan 26, 2015)
https://www.techdirt.com/articles/20150123/09423229792/tsa-wants-to-read-your-facebook-posts-chec
k-out-your-purchases-before-it-will-approve-you-precheck.shtml.
91 David Gilmour, “How Patreon stepped into a war between Antifa and the alt-right,” The Daily Dot (Aug.
8, 2017) https://www.dailydot.com/layer8/patreon-antifa-altright-igd-lauren-southern/; Glenn Harlan
Reynolds, “When Digital Platforms Become Censors,” Wall Street Journal (Aug. 18, 2018)
https://www.wsj.com/articles/when-digital-platforms-become-censors-1534514122.
92 Tanya Agrawal, David Henry, and Jim Finkle, “JPMorgan hack exposed data of 83 million, among
biggest breaches in history,” Reuters (Oct. 2, 2014)
https://www.reuters.com/article/us-jpmorgan-cybersecurity/jpmorgan-hack-exposed-data-of-83-million
-among-biggest-breaches-in-history-idUSKCN0HR23T20141003.
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not just be tolerated, but fostered and celebrated. Not only do its benefits outweigh its costs, it
is check that individuals may wield over abusive intermediaries. It will help ensure we do not
lose our open society.
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