Tying It All Together: FinCEN Consolidates Several Years of Cryptocurrency Guidance

For the past several years, advocates of crypto assets and other public uses of blockchain technology have sought guidance from U.S. regulators regarding the legal implications of new or novel uses of that technology. Regulators initially responded by addressing key topics in a piecemeal fashion through informal guidance, public statements, and sometimes targeted enforcement actions. More recently, several have published broader summaries of their views on how these technologies and the marketplaces built around them fit within the pre-existing regulatory framework.[i]

Earlier this month, the Financial Crimes Enforcement Network (“FinCEN”) issued the latest and perhaps the clearest guidance yet. Released on May 9, 2019, FinCEN’s guidance (“May 2019 Guidance”) “consolidates current FinCEN regulations, and related administrative rulings and guidance issued since 2011, and then applies these rules and interpretations to other common business models.”[ii] Only time will tell if Congress or individual States will enact new legislation affecting the regulation of crypto assets.[iii] In the meantime, both new entrants to the market and established financial institutions branching out into crypto assets would be wise to take note of this guidance from FinCEN and assess whether aspects of their business models, products, and services bring them under FinCEN’s jurisdiction and, in particular, subject them to Bank Secrecy Act (“BSA”) requirements as money service businesses (“MSBs”).

BACK TO DEFINITIONS

FinCEN’s May 2019 Guidance begins by going back to basics, with a section explaining the terms of art that connect certain crypto-related business models to established FinCEN jurisdiction. In short, FinCEN views the acceptance or transmission of crypto assets as “money transmission services,” provided that the crypto assets constitute “other value that substitutes for currency.”[iv] Any person or business who provides such money transmission services is deemed a “money transmitter,” and therefore a MSB.[v] Based on authority derived from the BSA, FinCEN requires that MSBs register and comply with various regulations, including establishing an anti-money laundering (“AML”) program that is reasonably designed to prevent the MSBs from being used to facilitate money laundering or the financing of terrorist activities. The regulations also require compliance with rules around customer identification, transaction monitoring, currency reporting, suspicious activity reporting, and recordkeeping.[vi]

Of course, to qualify as a MSB and be subject to BSA/AML requirements, the underlying transactions processed by a business must be in some “other value that substitutes for currency.” FinCEN generally views cryptocurrency and other crypto assets, which the agency calls convertible virtual currencies (“CVCs”), as meeting this definition.

FinCEN reasons that the substance of the transferred item, not its label, is what truly matters, taking a functional approach to CVCs. According to the May 2019 Guidance, CVCs include any cryptocurrency whether or not it was originally created for a different purpose — so long as it was “repurposed” as a currency substitute.[vii]FinCEN states: “[T]he label applied to any particular type of CVC (such as ‘digital currency,’ ‘cryptocurrency,’ ‘cryptoasset,’ ‘digital asset,’ etc.) is not dispositive of its regulatory treatment.” The Guidance re-iterates a similar substance-over-form approach to the definition of a MSB subject to BSA regulation, noting that it “depends on the [individual’s or entity’s] activities and not its formal business status.”[viii]

TREATMENT OF COMMON CRYPTO-RELATED BUSINESS MODELS

Section 4 of the May 2019 Guidance walks through a number of common products and services within the crypto industry, pointing out the attributes that lead FinCEN to conclude certain businesses models are MSBs, and thus subject to FinCEN’s jurisdiction. FinCEN also carves out others that either do not qualify as MSBs or are exempt from FinCEN’s oversight.[ix]

  • Peer-to-Peer (“P2P”) Exchangers — Individuals or services engaging in buying and selling CVCs (exchanging one type of CVC for another CVC or other types of value) are MSBs. An exception exists for natural persons engaging in P2P exchange activity infrequently and “not for profit or gain.
  • CVC Wallets — The May 2019 Guidance lays out four criteria for determining whether a wallet provider must register as a MSB: (a) who owns the value; (b) where the value is stored; (c) whether the owner interacts directly with the payment system where the CVC runs; and, (d) whether the person acting as intermediary has total independent control over the value.[xi] For example, providers and users of “unhosted” wallets — software on a person’s device enabling them to conduct transactions in CVC — are not money transmitters so long as the wallets are used to purchase goods or services on the user’s own behalf. On the other hand, “hosted” wallets — account-based money transmitters that receive, store, and transmit CVCs on behalf of their accountholders — do qualify as money transmitters. The regulatory framework for these hosts can vary depending on the identity of the wallet owner and the type of transactions channeled through the hosted wallet.[xii]
  • CVC Kiosks — An owner-operator of a CVC kiosk that accepts currency from a customer and transmits the equivalent value in CVC back to the customer (or vice versa) qualifies as a money transmitter. Owner-operators of kiosks that merely verify account balances and dispense currency without converting it, however, are not money transmitters.[xiii]
  • Decentralized Applications (“DApps”) — FinCEN defines DApps as “software programs that operate on a P2P network of computers running a blockchain platform,” noting that DApps have no identifiable administrators controlling them. In the case of DApps that accept and transmit value, FinCEN applies the same regulatory interpretation used for mechanical systems like CVC kiosks: owner-operators of DApps — and possibly the DApps themselves — meet the definition of MSBs when those DApps perform money transmissions.[xiv]
  • Anonymizing Services/Software — The Guidance delineates between providers of anonymizing services and anonymizing software. Anonymizing services providers are money transmitters under FinCEN regulations, because the additional feature of concealing the source of the transaction does not change the fact that providers’ business consists exclusively of providing secured money transmission, thereby subjecting it to BSA obligations. On the other hand, FinCEN exempts anonymizing software providers from the definition of MSBs because they supply a tool “utilized in money transmission” and are therefore engaged in trade rather than the business of money transmission. By contrast, a person who uses the software in order to engage as a business in the acceptance and transmission of CVCs as a transmitter’s or intermediary’s financial institution would be a money transmitter.[xv]
  • Anonymity-Enhanced CVCs — Those who create or sell CVCs that themselves enhance anonymity in some way may be money transmitters to the extent the creators/sellers provide those CVCs in exchange for another type of value. If the creator of an anonymity-enhanced CVC merely uses it to pay for goods or services on its own behalf, however (perhaps by establishing a decentralized CVC payment system and then only participating by mining their own CVC units and then using the system to make payments with those CVC units), they would not qualify as a money transmitter.[xvi]
  • Payment Processors — CVC payment processors are generally money transmitters. They are not eligible for FinCEN’s standard payment processor exemption because, among other reasons, the payment processor exemption only applies to systems that limit their membership to Bank Secrecy Act-regulated financial institutions. This limitation is one that few, if any, CVC payment processors currently meet.[xvii]
  • Internet Casinos — Even operations engaged in the business of gambling that are not otherwise covered by the regulatory definitions of casino, gambling casino, or card club, but that accept and transmit CVC, might qualify as money transmitters.[xviii]

FinCEN’s Guidance highlighted several business models that may not qualify as MSBs (e.g., trading platforms or decentralized exchanges that provide a forum for parties to post bids and offers but that require the parties to settle though an outside venue, or miners who use the resulting CVC solely to purchase goods or services on their own behalf). The Guidance also identified other individuals and entities as exempt from FinCEN’s oversight because they are already subject to another regulator’s jurisdiction (e.g., issuers, intermediaries, investors and others involved in initial coin offerings (“ICOs”) that are regulated by the Commodities Futures Trading Commission or Securities and Exchange Commission).[xix]

INITIAL COIN OFFERINGS (“ICOS”)

FinCEN’s Guidance also addresses the application of the BSA to two broad categories of ICOs, but acknowledges that these do not encompass every possible ICO structure.

First, where an ICO consists of a CVC sale to a select group of buyers, FinCEN determined that the seller of the CVC is a money transmitter, regardless of whether the value obtained from the offering is made instantaneously or at some later date. FinCEN explained that this reflects the seller’s role as “the only person authorized to issue and redeem (permanently retire from circulation) the new units of CVC.”[xx]

Under the second business model involving an ICO, where the participant is raising funds by selling tokens as an equity stake or debt instrument to early stakeholders to finance a project or hedge a prior investment in CVC through a derivatives contract, the May 2019 Guidance explains that the regulatory treatment may vary depending on what happens to the tokens as the project develops. Generally speaking, issuers and intermediaries (or investors) that are banks, foreign banks, or otherwise functionally regulated by the SEC or CFTC are exempt from MSB status.[xxi] In addition, any sale of a security, including debt instruments, will be regulated by the SEC and therefore exempt from FinCEN jurisdiction. Once an investor holds a digital token or derivative, a re-sale “will not create any BSA obligations.”[xxii]

EARLY TO THE PARTY

FinCEN’s latest guidance is a helpful summary of several years of iterative guidance. With key guidance dating back to March 2013,[xxiii] FinCEN was one of the first agencies to describe how it would regulate cryptocurrency. The agency was also one of the first to bring enforcement actions against crypto-related operations.

In May 2015, FinCEN assessed a $700,000 civil money penalty against Ripple Labs, Inc. for selling its cryptocurrency without registering as a MSB, failing to implement an adequate AML program, and failing to file suspicious activity reports (“SARs”).[xxiv] In July 2017, FinCEN assessed a $110 million penalty against the foreign-based currency exchange BTC-e, along with a $12 million penalty against its principal, Alexander Vinnik, in connection with allegations of willful failures to register as a MSB, implement an adequate AML program, and file SARs.[xxv] As part of what FinCEN viewed as its evasion of compliance with BSA requirements, BTC-e allegedly tried to conceal that it was servicing customers in the United States. More recently, just last month, FinCEN for the first time assessed a civil monetary penalty against a peer-to-peer virtual currency exchanger named Eric Powers for his involvement in numerous darknet transactions, including business on the infamous darknet marketplace Silk Road.[xxvi] FinCEN fined Powers $35,000 for failing to register as a MSB, failing to establish an adequate anti-money laundering program, and failing to file CTRs and SARs.

While FinCEN has not pursued as many crypto-related enforcement actions as the SEC,[xxvii] its recent guidance gives no indication that FinCEN’s interest in crypto assets is waning. Its recent action against an individual currency exchanger in the peer-to-peer space underscores that FinCEN is continuing to monitor ways in which crypto-related business models are running afoul of its established rules governing MSBs.

ROADMAP FOR ASSESSING NEW BUSINESS MODELS

Following a flurry of targeted statements and enforcement actions over the past few years, summary guidance helps agencies like FinCEN to present their views of how the various pronouncements come together as a whole. While not breaking new ground, summaries like these provide concrete roadmaps for business professionals to apply when assessing whether their products and services in the virtual currency area are subject to oversight by particular regulators.

The recent rally in cryptocurrency markets could soon lead entrepreneurs and established financial institutions to increase their focus on cryptocurrency projects.[xxviii] In that case, business professionals launching crypto operations or otherwise expanding into the digital asset marketplace should look to this new guidance from FinCEN as a consolidation of the rules and guiding principles that FinCEN will use to evaluate any new business model.
________

[i] King & Spalding Client Alert, How Far We Haven’t Come: SEC Resistance to Blockchain Securities Continues? (Apr. 11, 2019), https://www.kslaw.com/news-and-insights/how-far-we-haven-t-come-sec-resistance-to-blockchain-securities-continuessee also Framework for “Investment Contract” Analysis of Digital Assets, Securities and Exchange Commission, (Apr. 3, 2019), https://www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets; Statement on Digital Asset Securities Issuance and Trading, Securities and Exchange Commission Division of Corporation Finance, Division of Investment Management, and Division of Trading and Markets (Nov. 16, 2018), https://www.sec.gov/news/public-statement/digital-asset-securites-issuuance-and-trading.

[ii] FinCEN Guidance, FIN-2019-G001, Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual Currencies (May 9, 2019) (“May 2019 Guidance” or “Guidance”), https://www.fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf.

[iii] Token Taxonomy Act of 2019, H.R. 2144, 116th Cong. (2019); Digital Taxonomy Act of 2019, H.R. 2154, 116th Cong. (2019); see also Joshua Ashley Klayman, “Don't Call It A Comeback: With Two Bills, U.S. Lawmakers Aim To Give New Life to Non-Security Tokens,” Forbes, (Apr. 13, 2019), https://www.forbes.com/sites/joshuaklayman/2019/04/13/dont-call-it-a-comeback-with-new-bills-u-s-lawmakers-aim-to-give-new-life-to-non-security-tokens/#2700fbb5900f.

[iv] May 2019 Guidance at 4; see also 31 CFR § 1010.100(ff)(5)(i)(A) (“Money transmission services” means “the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means.”).

[v] May 2019 Guidance at 4.

[vi] See Bank Secrecy Act Regulations; Definitions and Other Regulations Relating to Money Services Businesses, 76 Fed. Reg. 43585 (July 21, 2011); FinCEN News Release, FinCEN Reminds Financial Institutions that the CDD Rule Becomes Effective Today(May 11, 2018), https://www.fincen.gov/news/news-releases/fincen-reminds-financial-institutions-cdd-rule-becomes-effective-today.

[vii] May 2019 Guidance at 4, 7.

[viii] Id. at 7 (emphasis in original).

[ix] One reason for exemption is that the individual or entity is already regulated by the Commodity Futures Trading Commission (“CFTC”) or the U.S. Securities and Exchange Commission (“SEC”).

[x] May 2019 Guidance at 14-15, 15 n.51.

[xi] Id. at 15.

[xii] Id. at 15-17.

[xiii] Id. at 17-18.

[xiv] Id.at 18.

[xv] Id. at 18-20.

[xvi] Id. at 20-21.

[xvii] Id. at 21-23.

[xviii] Id. at 23.

[xix] Id. at 23-28.

[xx] Id. at 25.

[xxi] Id. at 26 (citing FinCEN Guidance, FIN-2008-G008 “Application of the Definition of Money Transmitter to Brokers and Dealers in Currency and other Commodities,” (Sept. 10, 2008), https://www.fincen.gov/sites/default/files/guidance/fin-2008-g008.pdf).

[xxii] Id.

[xxiii] In March 2013, FinCEN released an interpretation directing that exchangers and administrators of virtual currencies are required to register as money services businesses. Ordinary users, however, are excluded. FinCEN Guidance, FIN-2013-G001, Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies (Mar. 18, 2013), https://www.fincen.gov/sites/default/files/shared/FIN-2013-G001.pdf.

[xxiv] FinCEN Press Release, FinCEN Fines Ripple Labs Inc. in First Civil Enforcement Action Against a Virtual Currency Exchanger (May 5, 2015), https://www.fincen.gov/sites/default/files/shared/Ripple_Facts.pdf.

[xxv] FinCEN Press Release, FinCEN Fines BTC-e Virtual Currency Exchange $110 Million for Facilitating Ransomware, Dark Net Drug Sales (July 27, 2017), https://www.fincen.gov/news/news-releases/fincen-fines-btc-e-virtual-currency-exchange-110-million-facilitating-ransomware

[xxvi] FinCEN Press Release, FinCEN Penalizes Peer-to-Peer Virtual Currency Exchanger for Violations of Anti-Money Laundering Laws (Apr. 19, 2019), https://www.fincen.gov/news/news-releases/fincen-penalizes-peer-peer-virtual-currency-exchanger-violations-anti-money.

[xxvii] Cyber Enforcement Actions, U.S. Securities and Exchange Commission, https://www.sec.gov/spotlight/cybersecurity-enforcement-actions (accessed May 14, 2019), listing more than 20 enforcement actions relating to digital assets and initial coin offerings since July 2017.

[xxviii] Omkar Godbole, “Bitcoin’s Monthly Price Gains Already Highest Since November 2017,” CoinDesk (May 14, 2019), https://www.coindesk.com/bitcoins-monthly-price-gains-already-highest-since-november-2017 (“Bitcoin (BTC) clocked fresh 10-month highs earlier today and currently appears on track to post its largest monthly gain since late 2017.”).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© King & Spalding | Attorney Advertising

Written by:

King & Spalding
Contact
more
less

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.