Hinkes, Andrew M. | May 1, 2019

Most cryptoassets natively function as bearer instruments. Whoever controls the private key for a given cryptoasset wallet generally controls the assets held by that wallet. In a civil or criminal action or as part of a governmental investigation, parties may be ordered to disclose their private keys or to transfer cryptoassets controlled by those private keys. However, people forget things and lose things, including extremely important things. Parties may lose private keys, and thereby lose control of their assets; parties acting in bad faith, or due to ideological motivation, may claim that “lost” or “forgotten” private keys prevent them from complying with disclosure or turnover orders. Determining whether claims of lost or forgotten private keys are genuine or are bad faith attempts to protect assets will be a challenge for courts, forcing them to confront complex, technology-specific evidence and requiring that they determine whether that loss is bona fide or tactical “self-created impossibility.” Courts may likewise find that traditional contempt sanctions are insufficient to compel a motivated contemnor to comply with disclosure or turnover orders. To avoid expensive, time-consuming evidentiary hearings on contempt, parties and courts should consider ex ante measures, including standing orders and injunctive relief that would require disclosure of and prevent the loss of private keys once financial condition becomes relevant to any claim or defense in litigation. Legislators could create novel contempt sanctions that leverage the unique features of cryptoassets to lien sufficiently identifiable cryptoassets at issue. New laws could create registries listing identifiable cryptoassets subject to turnover orders (similar to state UCC registries), use the infrastructure and legal obligations imposed upon regulated intermediaries by the Bank Secrecy Act and Office of Foreign Asset Controls, or modify existing state law writs to direct stateregulated financial intermediaries to seize those identifiable cryptoassets pending further court order. Although these new sanctions would destroy the fungibility of the cryptoassets at issue and reduce their commercial value, they would also create new, efficient incentives. The lien against identifiable cryptoassets would have no impact on parties who actually lose their private key but would facilitate recovery of cryptoassets taken without authorization in a hack or theft. Finally, the threat of a lien that would adversely impact the value of the specific implicated cryptoassets would reduce the incentive for a bad faith contemnor to defy a turnover order and instead encourage compliance.