3 Questions To...Primavera de Filippi, legal scholar, Internet activist and artist. Permanent researcher at CNRS and Faculty Associate at the Berkman Klein Center for Internet & Society at Harvard University. Author of Blockchain and the Law published in 2018 by Harvard University Press.
You co-authored with Aaron Wright Blockchain and the Law: The Rule of Code, one of the first books analyzing the interaction between blockchain and law. Blockchain has since become a hot topic. It is often seen as a technology that cannot be controlled by governments. As such, you introduce the concept of "alegality". Could you tell us what it means? And how institutions should take it into consideration?
The terms "alegality" is essentially a fancy way to say that there are some things that happen in the blockchain world that are invisible to the eyes of the law. These things are not "legal" or "illegal", they are simply "alegal", in the sense that they occur outside of the purview of the law. For instance, a transfer of cryptocurrency from one person to a smart contract on the Ethereum blockchain could be regarded as an alegal activity. From a purely legal standpoint, this transfer may not qualify as a transfer of ownership over these digital assets, simply because a smart contract cannot qualify as the legal owner of these assets since it is not a legal person.
"A smart contract transaction between an individual and a DAO on the Ethereum blockchain may not qualify as an actual contractual relationship"
The same applies in the context of (smart) contracts. A smart contract transaction between an individual and a DAO on the Ethereum blockchain may not qualify as an actual contractual relationship, simply because there is no counter-party to the transaction, since a DAO does not have any legal personality or legal capacity. Hence, while these transactions are technologically enforced by the underlying technology, and might produce significant effects to the parties involved, they remain invisible to the legal system, which cannot therefore be leveraged to enforce these alegal relationships. This highlights the discrepancies that currently subsist between the "rule of law" established by national governments and the "rule of law" established by blockchain code.
Traditional organisations and jurisdictions face new kind of challenges as they interact with decentralized networks and autonomous blockchain-based code. You suggest that the growth of blockchain technology may give rise to a new type of legal order that you called "lex cryptographia". You present it as a system of rules where autonomous, decentralized code — rather than legislators or judges — could determine the outcome of given interactions and disputes. Could you explain us what is lex cryptographia about? Do you consider it to be the continuation of Lawrence Lessig's lex informatica, known as "Code is law"?
Internet and digital technologies have enabled the emergence of a new normative system, a particular set of rules spontaneously and independently elaborated by an international community of Internet operators. This system—sometimes referred to as Lex Informatica, by analogy to Lex Mercatoria—is an ideal toolkit for the regulation of online transactions, since its normative power arises directly from the technical design of the network infrastructure, which is used as a complement (or a supplement) to contractual rules.
Just like Lex Mercatoria, Lex Informatica ultimately relies on self-regulation: it is a system of customary rules and technical standards elaborated by those who interact on the global Internet network. The system operates transnationally, across borders, independent of national boundaries and domestic laws. However, as opposed to Lex Mercatoria, which was elaborated by and for an international community of merchants, in order to respond to their own needs, Lex Informatica is unilaterally imposed by online service providers onto their users. Indeed, by restricting the type of actions that can be performed on a digital platform, Lex Informatica introduces a system of technical norms which are not a direct expression of the will of the people, but rather that of those in charge of maintaining the platform.
"Blockchain technology enabled the emergence of yet another normative system, a new mechanism of coordination which also relies on technical means in order to coordinate behavior"
Blockchain technology enabled the emergence of yet another normative system, a new mechanism of coordination which also relies on technical means in order to coordinate behavior. Yet, as opposed to Lex Informatica, whose rules are ultimately dictated by a centralized operator, the rules established by the protocol of a blockchain network are established by the community and for the community, and must be enforced through a mechanism of distributed consensus involving all network participants. The benefit of this new normative system—which I defined as Lex Cryptographica in my book—is that it operates independently of any third party authority or intermediary operator.
Primavera you are also an artist. You recently exposed your "Plantoid" a blockchain-based life form, during Burning Man Festival. Can you tell us about this bionic creature? How it interacts? Why and how you created it?
The goal of the Plantoid is to illustrate one of the most revolutionary – and yet still unexplored – aspects of blockchain technology. It illustrates the ability to create “blockchain-based lifeforms”, i.e. algorithmic entities that are (1) autonomous, (2) self-sustainable, and (3) capable of reproducing themselves, through a combination of blockchain-based code and human interactions. The project explores the use of technology to give agency to both inanimate and animate things, which are currently not granted any legal personality or legal capacity under the law.
Specifically, the Plantoids collects cryptocurrency and then use these funds to hire artists to create new copies of themselves, through an evolutionary algorithm. Every Plantoid has its own Ethereum wallet, to which people can send cryptocurrency to. In sending these cryptocurrencies, people provide the Plantoid with the opportunity to fund its own reproduction, while simultaneously acquiring the right to participate into the governance system of the newly created Plantoid.
All cryptocurrencies collected in this way are stored in the wallet of each and every Plantoid. Depending on their form and size, different Plantoids will require different amounts of funds before they can blossom. The Plantoid constantly monitors its cryptocurrency balance, and whenever it realizes that a particular threshold has been reached, the Plantoid will be able to use this money to initiate its own reproduction by hiring someone to produce a new copy of itself. There are currently 12 Plantoids in the world, and the last three were exhibited at the Burning Man festival in Black Rock City, Nevada. Hopefully, they will continue to reproduce and slowly colonise the planet!