Editor’s note: This commentary is by Howard Fairman, of Putney, a native Vermonter who likes to note what was unnoted, ask what was unasked, say what was unsaid, then share food for thought with fellow grassroots Vermonters.
[F]ellow Vermonters, and members of the Vermont General Assembly whom we have elected to represent us, this commentary is based upon testimony that I asked to present to the Vermont Senate Committee on Economic Development, Housing and General Affairs regarding S.269 (Journal of the Senate, March 20, 2018, pp. 472–476) — “An act relating to blockchain, cryptocurrency, and financial technology” — because S.269 proposes enacting before thinking instead of thinking before enacting (e-mail correspondence with Sen. Allison Clarkson, D-Addison, Jan. 22).
Members of the Vermont General Assembly, some of you have told me that you do not understand this “Act relating to blockchain, cryptocurrency, and financial technology.” As Vermonters’ elected representatives: If you cannot clearly explain and justify it to us, please do not vote for S.269 on our behalf, because laws that govern us should be transparent to you and to us as to both “what” and “why.”
S.269 sponsor Sen. Clarkson and her committee (Sens. Becca Balint, D-Windham; Philip Baruth, D/P-Chittenden; Michael Sirotkin, D-Chittenden; and David Soucy, R-Rutland) allowed no testimony by concerned Vermonters.
Five S.269 proponents were solely invited to testify: four attorneys and the chief executive officer of PurposeLab (“We were founded in 2009 upon the ethos that apps and technology can drive political and social action”):
• Peter S. Erly, Financial Technology/Blockchain Group, Gravel & Shea PC;
• Oliver R. Goodenough, professor and director, Center for Legal Innovation, Vermont Law School;
• Rob Kramer, CEO, PurposeLab ([Santa Monica, California; New York City; Kiev, Ukraine; Sofia, Bulgaria]); http://purposelab.com/contact/
• Thomas H. Moody, chair, Business Association Section, Vermont Bar Association;
• Michael S. Pieciak, commissioner, Vermont Department of Financial Regulation.
S.269, to take effect on July 1, enacts “personal information trust companies.”
Googling “personal information trust company” returns only S.269 as search results. S.269 and “personal information trust company” are unique! They are someone’s bright idea for Vermont and Vermonters to try first.
A personal information trust business is “a person that offers to the public by advertising, solicitation, or other means that the person is available to hold personal information in trust as a fiduciary” (S.269 Sec. 1. § 2451 (2)).
“‘Personal information’ means data capable of being associated with a particular natural person, including gender identification, birth information, marital status, citizenship and nationality, government identification designations, and personal, educational, and financial histories” (S.269 Sec. 1. § 2451 (1)).
Open-ended “personal histories” means everything else, including court and police records, donations, employment, finances, government benefits, insurance policies and claims, memberships and subscriptions, military records, motor vehicle records, online and printed postings and publications, purchases and rentals, titles to real and personal property, voting records, and health records.
In other words, all there is to know about a person compiled and accessible in one place. Hack this, and you have that person’s complete identity. International hackers will flock to try. Some will succeed.
No American federal, state, county or municipal government has ever had such a dossier about each person, but soon will seize the opportunity.
Who may be granted this unprecedented responsibility (S.269 Sec. 1. § 2453 (c) (1))?
• a business corporation;
• a benefit corporation;
• a limited liability company;
• a low-profit limited liability company;
• a partnership;
• a limited partnership;
• a nonprofit corporation;
• a cooperative.
In other words, every natural and legal person except a sole proprietor may own and operate a personal information trust company in Vermont.
“A personal information trust company may … transact business through the use of a mathematically secured, chronological, and decentralized consensus ledger or database, whether maintained via Internet interaction, peer-to-peer network, or otherwise” (S.269 Sec. 1. § 2455 (a) (2) (D)):
• mathematically secured?
• chronological, and decentralized?
• consensus ledger or database?
• internet interaction?
• peer-to-peer network?
• or otherwise?
Undefined legislative terms are unexplained terms, especially when they describe something that is not named.
When a law does not legally define its new phrases or terms, our elected legislators cannot know for what they are voting; citizens cannot know how we have consented to be governed, when our legal rights have been violated, nor on what grounds we may appeal for justice; and citizens must sue so that courts will decide which among possible interpretations or misinterpretations is valid or invalid.
“The Department of Financial Regulation shall adopt rules to govern other aspects of the business of a personal information trust company, including its protection and safeguarding of personal information and its interaction with third parties with respect to personal information it holds” (S.269 Sec. 1. § 2457).
In other words, our elected legislators are authorizing personal information trust companies before anyone knows how the Department of Financial Regulation, lobbied by these companies and their supporters, will specify protection, safeguarding and authorized release of each person’s life history.
Our personal privacy, however, is a constitutional right detailed and guaranteed by laws enacted by our elected legislators accountable to us, not by rules adopted and changed by civil servants lobbied by personal information trust companies and their supporters.
Fellow Vermonters, Sens. Balint, Baruth, Clarkson, Sirotkin and Soucy allowed no testimony about S.269 by concerned Vermonters to avoid public discussion of personal information trust companies.
Now we can ask them what they were thinking, and tell them what we are thinking.
