Payments and Social Media. J. Dax Hansen, Perkins Coie LLP Seattle, WA September 6, 2012

Transcription

1 Payments and Social Media J. Dax Hansen, Perkins Coie LLP Seattle, WA September 6, 2012

2 Dem o-crat ic 1. of, belonging to, or upholding democracy or a democracy 2. of, for, or popular with all or most people 3. treating persons of all classes in the same way; not snobbish Webster's New World Dictionary

3 Cash AMEX Card Facebook Credit Bitcoin Mobile Billing How Do These Rank?

4 "The democratization of currency that we're witnessing is about innovating monetary systems that are more efficient and valuable for use at times when government currency is suboptimal." David Wolman, The End of Money

5 A Few Statistics Facebook Payments Revenue: 2011 $557 million 2010 $106 million 2009 $13 million Karen the Bus Monitor Vacation Campaign on Indiegogo Raised $702,684 ($697,684 over goal) Cisco Survey: 14% would use a FB reloadable prepaid account 8% - FB checking account/debit card 5% - FB savings account or online bill-payment service 4% - FB line of credit 1% - FB for all banking services

6 Discussion Topics Recent Trends and Legal Implications Crowdfunding Sophistication of Financial Services Offerings Development of "Social Currencies" Mobile Expands Scope of Payments and Data Common Payments Questions Closed-Loop vs. Open-Loop Virtual Currencies Unclaimed Property

7 Crowdfunding Power Vacation Campaign for Karen the Bus Monitor: Indiegogo Goal: $5,000 Raised: $702,684 Pebble Smart Watch: Kickstarter Goal: $100,000 Raised: $10,266,846 Yellow Jacket iphone Stun Gun Case Indiegogo Goal: $100,000 Raised: $102,001 Perks: Thank You, T-Shirt, Early Bird, Special Edition..

8 Legal Issues Payment Processing Model Amazon Payments' Suspension of Unglue.it Payment Association Rules Products Liability Tax Commercial Fundraising Commercial Co-Venture Campaign Finance Securities / JOBS Act International

9 Sophistication of Financial Services Offerings FB Shifts From Credits to Local Currency Accounts Developers - price in local currency by year end Use your own in-game currency FB Obtains Money Transmitter Licenses Facebook Payments Inc. / Facebook Payments Ltd. California Credits issued by ITC Financial Licenses, Inc. Foreign Banks Link FB Profiles to Banking Profiles Foursquare users sync accounts to AMEX cards for discount offers

10 Sophisticated Offerings = Complex Regulatory Issues Deposit Taking State Money Transmission Federal MSB & KYC Financial Privacy & Security Payment Association Rules Gift Certificate Unclaimed Property Recordkeeping & Reporting Coupon Credit Credit Reporting Bill Presentment/Statements Collections Customer Dispute Resolution Permissible Investments Consumer Protection Tax Compliance Audits International

11 New "Social Currencies" Bitcoin Distributed (decentralized) cryptocurrency Cap of 21 million bitcoins Exchanges Alpaca Socks and Silk Road Local Coupons Groupon, LivingSocial, AmazonLocal, Facebook Offers Exist because of group buying potential Gift certificate and coupon laws don't exactly fit New breed?

12 Decentralized Cryptocurrencies FinCEN Prepaid Access Rule State Money Transmitter Laws Securities Laws Commodities Laws Gambling Laws Aiding and Abetting Who is the issuer or provider in a decentralized system? Who needs licenses? Is recordkeeping and reporting even possible? Remember the quote at the beginning of this presentation about a democratic response to inefficient systems?

13 Local Coupons Usually Gift Certificates Paid Promotional Sometimes Tickets (almost) Rarely Coupons Possibly a New Breed

14 Class Actions Dozens of Class Actions Filed Against Groupon and LivingSocial Also name participating merchants as co-defendants Filed most commonly in states with gift certificate statutes Contain nearly identical allegations focused on expiration of vouchers

15 Claims Regarding Voucher Expiration Violation of Electronic Funds Transfer Act Distinction b/w purchased value & promotional value irrelevant because value of entire voucher expires Violation of State Gift Certificate Statutes Violation of State Consumer Protection Laws Expiration dates unlawful under federal and state law Deceptive advertising/misrepresentation (expiration) Breach of Contract Expiration date clauses unenforceable because consumers never "click" their assent

16 Additional Claims Oppressive, Hidden Terms Violate State Consumer Protection/Anti-Fraud Laws: Voucher must be used in single transaction Only one voucher per transaction Residual value of voucher not redeemable for cash No refund if merchant fails to honor voucher Restitution/Unjust Enrichment And On and On...

17 Mobile Expands Scope of Payments and Data Direct Carrier Billing NFC - Online Apps Can Support POS Payments NFC Wallets - Online Service Providers Can Collect Data Regarding Physical POS Payments Foursquare Walgreens Coupon for Arizona Iced Tea, 31% Redemption Rate

18 Convergence of Two Highly Regulated Industries Financial Services EFTA/Reg E TILA/Reg Z BSA/AML Money Transmitter Laws Gift Certificate Laws Federal & State Consumer Protection Laws Payment Association Rules Debt Collection Laws Wireless Truth in Billing PUC CPNI CTIA Best Practices MMA Best Practices GSMA App Store Developer Terms You got your chocolate in my peanut butter!

19 Who regulates NFC payments? NFC Chips: FCC, for interference potential ( 302a of Communications Act; Part 15 of FCC's Rules) Payment Cards in Secure Element: It depends on: type of payment card who has jurisdiction over the card "issuer"

20 Mobile Self Regulation and Standards Global Platform (technical specifications) CTIA Mobile Financial Services Best Practices GSMA NFC Specifications (UICC, handset software) EMVCO Contactless Standards Payment Associations Visa Best Practices for Mobile Payment Acceptance Solutions Testing and certification process for handsets and SEs Payment network rules (including PCI DSS) Card Present vs. Card Not Present determinations MMA Model Mobile Application Privacy Policy

21 Common Payments Questions Closed-Loop vs. Open-Loop Virtual Currencies Unclaimed Property

22 What is Virtual Currency? It is all over the map, but Virtual Currency is: A proprietary medium of exchange (contract based) An electronic promise to provide goods or services Often characterized as a limited license to use a digital good Virtual Currency is not: Legal tender (i.e., "valid and legal offer of payment" no further contract required) Primarily a virtual good Virtual Currency can be: Stored value in an online account Completely virtual or evidenced by a physical record Paid or promotional or in between Closed loop or open loop Positioned as a gift certificate, coupon, ticket, jackpot or promotions prize

23 Closed-Loop Definitions Federal: "Prepaid access to funds or the value of funds that can be used only for goods and services in transactions involving a defined merchant or location (or set of locations)..." State: "Redeemable by the issuer in goods or services" or "redeemable by the issuer for goods or services provided by the issuer or its [corporate] affiliate."

24 Open-Loop Features to Watch Widely-accepted means of exchange P2P transfers Over $1000 day/person International Reloadable (non-depository sources) Cash out Significant Regulatory Requirements Detailed compliance obligations Costly and time-consuming licensing requirements Civil and criminal penalties for non-compliance

25 Gift Certificate Laws Generally, apply to promises to provide goods or services of a certain value to the bearer of a record Restrictions and requirements: Expiration dates Inactivity or service fees Conspicuous disclosure of key terms Cash back Exemptions for "promotional" gift certificates

26 Unclaimed Property Laws Generally, apply to intangible property (including money, consumer credits, stored value, etc.) held by a company that is abandoned or unclaimed by the owner after a statutory dormancy period Requirements: Pay the value of "unclaimed" property to states in accordance with established jurisdictional rules Track it (administrative effort)

27 Unclaimed Property Laws Unique Issues in Social Media: Build vs. buy (developer terms) Identifiable vs. anonymous Friends

28 QUESTIONS J. Dax Hansen Phone: