Re: [Bitcoin-development] The legal risks of auto-updating wallet software; custodial relationships

[Matt Whitlock <bip@mattwhitlock.name>]

On Tuesday, 20 January 2015, at 12:40 pm, Peter Todd wrote:
> On Tue, Jan 20, 2015 at 12:23:14PM -0500, Matt Whitlock wrote:
> > If you have the private keys for your users' bitcoins, then you are every bit as much the owner of those bitcoins as your users are. There is no custodial relationship, as you have both the ability and the right to spend those bitcoins. Possession of a private key is equivalent to ownership of the bitcoins controlled by that private key.
> 
> Posessing a private key certainly does not give you an automatic legal
> right to anything. As an example I could sign an agreement with you that
> promised I would manage some BTC on your behalf. That agreement without
> any doubt takes away any legal right I had to your BTC, enough though I
> may have have the technical ability to spend them. This is the very
> reason why the law has the notion of a custodial relationship in the
> first place.

I never signed any kind of agreement with Andreas Schildbach. I keep my bitcoins in his wallet with the full knowledge that an auto-update could clean me out. (I only hold "walking around" amounts of money in my mobile wallet for exactly this reason.) I would love it if Andreas offered me an agreement not to spend my bitcoins without my consent, but I doubt he'd legally be allowed to offer such an agreement, as that would indeed set up a custodial relationship, which would put him into all sorts of regulatory headache.