Blockchain 2020

Last Updated June 17, 2020


Law and Practice


Lopes Pinto, Nagasse is a full-service law firm, based in São Paulo, with particular expertise in corporate work, tax and tax planning, data protection (LGPD and GDPR), regulatory and compliance, digital assets (including blockchain), transportation and logistics, labour, infrastructure, agribusiness, banking and finance, and life sciences. The team is composed of seasoned and well-regarded professionals who have experience in national and multinational organisations and law firms and who are accustomed to the challenges facing today's businesses.

Brazil has experienced significant advances in blockchain technology in recent years, both in its development and in its use, although the latter is still viewed with some suspicion, perhaps because the functional mechanics of the blockchain are not yet fully mature of fully installed for most companies.

The problem is not doubt over the central pillars on which the technology is based, but in knowing:

  • what types of transactions can benefit from the technology;
  • what this will mean in terms of the need for regulation; and
  • what will be required to make it compatible with legislation. 

Some of these issues, particularly with a view to the effect of the COVID-19 pandemic and the response to it, are listed below:

  • The absence of an authority that establishes, controls and disciplines, under clear and objective rules, the general guidelines for creating and using the blockchain.
  • The need for regulation and self-regulation.
  • The harmonisation of the fundamental premise of non-centralisation with the existence of necessary authority.
  • The compatibility of blockchain technology with the General Data Protection Law (Lei Geral de Proteção de Dados or LGPD) and the Civil Rights Framework of the Internet (Marco Civil da Internet or MCI).
  • The use of blockchain in private-government relationships.

There are basically two aspects to the use of blockchain in Brazil:

  • an innovative one, represented by transactions in the logistics field; and
  • a more conservative, which is to make blockchain a “duplicate” of registration and transaction security.

In the medium term, two promising concepts stand out as particularly encouraging: the use of technology in corporate transactions, involving, for example, securities trading, and the use of blockchain in multi-jurisdictional non-contractual transactions.

Many companies use blockchain "out" (for external transactions), not "in" (for transactions with companies of the same conglomerate, or associates, which can increase the security and reliability of the business). This, perhaps, is a remnant of the “physical proof” culture still dominant, not only in Brazil, but in many other countries.

There is no specific regulation regarding blockchain technology in Brazil. This causes concern and generates understandable insecurity; but another problem arising from this context, and causing even more concern, is that, in the absence of a comprehensive regulatory framework, several different government entities try, each in their own way, to "regulate" the subject, and this causes fragmentation and an inconsistent regulatory landscape.

Brazilian government agencies, such as the Securities and Exchange Commission of Brazil (Comissão de Valores Mobiliários or CVM) and the Central Bank of Brazil (Banco Central do Brasil or BCB), have issued rules on the use of cryptocurrencies, or on related topics, but the use of blockchain technology remains without centralised legal coverage.

No rules borrowed from countries that already regulate blockchain have been instigated by Brazil, and there are no signs on the horizon that this will happen soon.

In the Brazilian jurisdiction, at time of writing (June 2020), international blockchain standards have not yet been incorporated into transactions.

Actually, international institutions that bring together Central Banks have not invested great efforts in creating and suggesting more objective rules for the regulation of cryptocurrencies, perhaps because, until very recently, voices were raised against their use as a substitute for traditional forms of money. As blockchain technology seems to be hopelessly associated with cryptocurrencies, very little has been done to implement standards that can be incorporated into transactions in general.

As discussed in 2.1 Regulatory Overview, in Brazil, no specific centralised regulation, nor a regulatory framework for principles, has been adopted.

However, some government agencies have sought to introduce some kind of regulation of cryptocurrencies, which, despite its fragmented character, by extension, ends up affecting the mechanisms of security, reliability and privacy of transactions.

In this context, readers should note the Brazilian Federal Revenue Service (Receita Federal do Brasil or RFB), which, through Instruções Normativas 1,888/19 e 1,889/19, established minimum standards for collecting information from customers who operate with cryptocurrencies. Another example is the CVM, which, although it has taken a conservative approach in relation to these currencies, has regulated international transfer operations.

In the case of Brazil, regulatory functions, in almost all environments and purposes, are the privilege of government entities, not least because, from the point of view of the Federal Constitution of 1988, the "protection of citizenship" – and underlying this term there are a great number of concepts and their variants, all aimed at safeguarding basic rights – is the duty of the State, through its institutions.

What is being discussed in Brazil – and this has been going on for some time – is whether the regulatory model should be broad and centralised or strict and “by designation”, something like a regulatory model based on self-regulation, as some countries are trying.

But, as the discussion continues, and legislative initiatives – such as Bill 2.303/19 – are postponed, technology does not wait, and new concepts, such as hyper-blockchain, free scale patterns, and the prevalent smart contract, gain purchase worldwide.

While there is no regulatory environment for blockchain technology in Brazil, not least because national and worldwide attention is focused on COVID-19, some court decisions have recognised blockchain as a viable technology for ensuring transaction reliability, and not just those involving financial resources.

One of these decisions was taken by the Tribunal de Justiça de São Paulo (TJSP). In this decision it was confirmed that the use of blockchain is valid to preserve the veracity and integrity of facts that are relevant in a judicial dispute. This decision is important for two reasons:

  • it was taken by the Brazilian State Court of Appeals that concentrates most of the country's financial transactions, and which is therefore a favourable place for the adoption of blockchain as "evidence technology"; and
  • it will help to increase understanding of the concept of preserving the integrity of data and information records, which is fundamental for understanding what blockchain represents for legal relations and issues involving legislation.

In our practice, we have been asked about the regulatory limits of blockchain. This is because, as this regulation does not yet exist, and the prospects for its existence are slim, clients do not want the shock of discovering they have done something that would not be in accordance with future regulation, but they also do not want to stop doing something that seems advantageous to them just because there is no currently existing regulation and therefore great regulatory uncertainty.

In one specific case, we advised clients that the regulatory perimeter of blockchain is defined, essentially, by the combination of three principles: security, integrity and reliability. In other words, any regulation that is approved, now or in the future, will go through these three parameters, which means that, if the blockchain, in each case, meets all of them, there is nothing that the regulation can require or prohibit that prevents its use. What could happen is that, depending on the regulatory text, there may be more or less freedom to operate, but this can be resolved either with adjustments over time or even through court decisions.

A sandbox, a systemic feasibility verification project, makes it possible for nascent businesses to function, allows efficiency gains with a multiplier effect and favours the role of the regulator, which can take a close look at a particular project's routine and establish safer standards for the regulation of the entire market.

In Brazil, the CVM only recently issued Instrução 626/20, establishing rules on the regulatory sandbox. In this model, innovation was the criterion chosen to establish which aspiring participants were allowed to join and thereby obtain a certain measure of flexibility in the regulation of their activities.

Even though this innovation criterion does not directly refer to blockchain projects, some of this firm's customers have been advised to consider this possibility, not least because there is no rule that prohibits projects to and from blockchain _ so-called block projects _ from being candidates for this sandbox as well.

The taxation of blockchain-related activity is a serious problem. In fact, the national tax system and disruptive technologies in general seem to be moving in opposite directions, they are certainly not communicating with each other sufficiently. Even though the RFB recognises cryptocurrencies as "assets and rights" and the idea that they should be given in taxation prevails, the fact is that there are two different events here.

One is the taxation of assets whose transactions take place in a blockchain environment; another is, as strange as it may seem, the taxation levied on the blockchain, transformed into “service” by some interpretations, which would justify its taxation.

The Brazilian tax system, unlike that of other countries, including in Latin and Central America, has not yet managed to establish an adequate classification for cryptocurrencies – although it calls them “goods and rights”. For this reason, it is also unable to create a tax system for these assets, preferring to include them in a “general system”.

We have recommended that our customers consider the possibility of discussing, on a case-by-case basis, any taxation on this type of technology, which, in a way, is made easier by the new rules regarding sandboxes (as discussed in 2.7 Regulatory Sandbox).

Unfortunately, blockchain technology, despite its great relevance to contemporary commerce and the fact that it has been treated in other countries with great attention, has advanced and advances in Brazil (to the extent that it does) solely due to private initiatives, almost always without the presence of government entities.

The Brazilian legislature, through Bill 2,303/19, has constituted a commission to analyse the most relevant aspects of cryptocurrencies and, by extension, of blockchain, from there deducing a text whose main function is to propose the regulation of the technology and its effects.

Other more practical initiatives to get to know the subject and create standards for regulation have yet to be carried out.

As a rule, transactions in the blockchain environment occur through a combination of keys – private and public – and the address. The determining element of the transaction is the private key, a random, practically unrepeatable numerical sequence, which allows its holder – whoever he or she is, even a robot – to move financial assets at a given address. As long as the holder of the private key has it securely in their possession, ownership of the asset is linked to it. That is why, with the key, someone can, even without being the original holder, access the asset.

Considering that the private key produces the public key, and this, in turn, the addresses where the assets are, only when both keys are activated, for a given address, is the transaction completed. To summarise, whoever accesses the address, presumably is the holder of the public key, and only with it is the movement (transaction) is possible.

As there is no blockchain-specific legislation in Brazil, the general rules of civil law and civil procedure will apply to questions of ownership of crypto-assets.

A token, basically, is a digital asset. It proves a certain fact, such as the possession of an asset, the right to a receivable or the identity of a person or company. Transactions through tokens, especially in a blockchain environment, gain security, privacy, certification, and anonymity.

In Brazil, tokens can be security or guaranteed by assets. Thus, a token can be, for example, participation in a company (security), or the right to receive a certain amount (guaranteed by an asset).

With regard to the formal qualification of digital assets, the best understanding is that they are not securities, because they are outside the framework of Law 6,385/76 (Article 20) and because their transactions occur and are validated in a decentralised environment, without the need for a defined aggregating entity. Nor are they considered typical financial assets, as the CVM has explained, although there is no express prohibition on company managers investing in this market. Finally, the RFB qualifies them as “goods”, subject to the applicable taxation. (Please refer to 2.8 Tax Regime.)

Certain digital assets may be related to or dependent on a financial or monetary parameter, in which case they are said to be linked assets.

Digital assets "whose legal life" is linked to something else can be interdependent, independent or dependent. The first are those which do not exist without the other; in the second case, each has its own life, but they can be linked by legal or conventional ties; in the third case, even though the asset exists independently of the thing to which it is linked, that existence is entirely dependent on that thing.

With interdependents, the existence and tradability of one does not occur without the other; in independents, the transaction of one may or may not affect the other; and in dependents, usually one is principal and the other is an accessory, meaning that the accessory cannot be traded without being the principal traded.

An asset linked to another can thus mean that the transaction of one leads to the transaction of the other, that the transaction of one may compel the transaction of the other and that the transaction of the accessory is not possible without a transaction involving the principal.

Cryptocurrencies have variable financial expression, which means that they are tradable on bases always susceptible to fluctuations; stablecoins, on the contrary, although they are also a species of the cryptocurrency genre, have a fixed price(at least in terms of some other asset). For this reason, they are well accepted in transactions, because, not being subject to the volatility common to other cryptocurrencies, they allow more predictability, are linked to a stable balance and favour scalability – material characteristics rarely found in other virtual assets.

Deposit-guaranteed stablecoins (in fiduciary currency, normally; or in so-called “book-entry" currency, in other cases) generally maintain a one-to-one relationship with their backing, and, almost as a standard, are pegged to the US dollar. Stablecoins backed by algorithms are not linked to any formal currency, but to a monetary policy that, in practice, seeks to maintain the price/earnings to growth (PEG) ratio, the measurement of the highest possible real value of participation in a given company.

Cryptocurrencies are, can be, and must be, used to settle obligations, within what is universally known as "transaction". Although there are transactions that do not require the circulation of money, nor payment. But they are still transactions that work within the architecture of blockchain technology. As an example, we can mention the case of contracts that must be validated and signed by the parties, which, without any problem, may not involve asset traffic, including virtual.

In Brazil, even if the subject is still under debate, some regulation exists, and it allows payment transactions via cryptocurrencies (for example, Normative Instruction RFB 1,888 / 19). Technically, there are no explicit restrictions on the use of cryptocurrencies as payment, since, by the most commonly accepted concept, they are considered means of payment.

Non-fungible tokens, even though they have been called the "evolution" of traditional tokens, are actually just a variation of them. A non-fungible token is a thing that cannot be replaced by another, and therefore it is unique, individualised and characterised. Therefore, a non-fungible token is one that cannot be replaced by another, or by an equal or different asset.

The idea behind this type of token is that it can serve to represent something – what we can call "ballast" – that is absolutely unique, not repeatable. It may be, for example, the first edition of a rare 19th century book, the autograph of a famous person or any “value” (asset) that, in essence, is unique. But it can also be a block of data or information about strategic customers or suppliers, or perhaps a non-reissue invoice.

This token, then, proves, through encryption, stored in blockchain architecture, for its owner and for other people, not only the possession of the “value” (or asset), but its authenticity, extraordinary and unrepeatable.

An important feature of the non-fungible token is that it creates digital, or virtual, shortages and, via blockchain, can be verified without the need for a certifying entity.

As this is something very new, and since Brazil does not yet even have regulation of cryptocurrencies and cryptotransactions in general, there are no legal rules on transactions applying to such tokens.

In Brazil, especially in recent years, the market for digital assets has grown rapidly, this is basically due to the fact that more and more people have been able to have access to this type of “currency”.

Markets for digital assets can basically fall into three categories: trading platforms, mere intermediation platforms and conduct platforms, that is, management of the first two.

In relation to decentralised exchanges (DEXs), there are a good number of agents in this field, and the most relevant advantage is that a DEX does not request the intermediation of a third party between itself and the investor.

New products relating to DEXs are coming, such as the Ox platform and Atomic Swap, and many will join them in 2020.

First of all, it is necessary to understand that, in Brazil, some platforms already work to enable the exchange of cryptocurrencies, or logical assets, for transit currency or fiduciary (fiat) currency, the ones issued and guaranteed by the monetary authorities.

Furthermore, there are already platforms in Brazil that allow the exchange (in fact, an acquisition) of virtual currency for goods and services.

The system is simple, even as a way of attracting investors to one of the most striking features of cryptocurrencies: decentralised non-informality. It involves nothing more than a common transaction, but in blockchain architecture.

What should be considered is that, considering the legislation that deals with money laundering and white-collar crimes, cryptocurrency transactions involving fiat currency make the investor “enter the system”, that is, become subject to requirements to inform fiscal and monetary authorities of the origin of certain transactions, especially if they involve large amounts. The same occurs in the exchange of fiduciary currency for cryptocurrencies, with the difference that, in this case, even acquiring “unregulated currency”, the investor “stays in the system”, since, before, he or she had the possession of currency trust in some amount. As for crypto-to-crypto exchange, if the transaction does not involve fiat currency, the investor's position – as holder of a virtual asset – does not undergo a change that could be significant.

In financial environments, and within the rules on money laundering, "know your customer" KYC has to answer three questions:

  • Is the client a “politically exposed person” (PEP)?
  • Does the customer fully understand the transaction being made (KYT)?
  • Is the client able to provide evidence that it recognises the legality of the transaction?

Using screening tools, digital asset trading platforms are able, with reasonable precision, to identify signs that can turn into future problems, since in the context of money laundering, all parties can be involved, even if one of them has played only a secondary role.

Another very important tool is finance due diligence, which seeks, by evaluating the profile of its client and evidence (even initial), to avoid the intended transaction passing through the filters of anti-laundering legislation.

Importantly, KYC is no longer just a tool to leverage sales. It is an asset of great importance, representing, in some markets, more than 15% of the value of non-material assets of an organisation.

As discussed in 3 Cryptocurrencies and Other Digital Assets, Brazil has not yet adopted a regulation on cryptocurrencies and blockchain architecture. Likewise, there is no objective and specific regulation for this market, except for “fragmented” rules, distributed among government agencies, such as the CVM and the RFB.

What has been observed is that each government entity, due to the lack of a legal regulatory and regulatory framework, establishes rules for the crypto-market based on its own need and interests, whether fiscal or financial.

Thus, the CVM allowed managers of publicly-held companies to trade cryptocurrencies (Circular Letter 11/2018), the RFB established rules for calculating gains from transactions involving cryptocurrencies (Normative Instruction 1.934/20) and the BCB (Comunicado 31.379/17) has already predicted that operations with cryptocurrencies will require the closing of exchange rates, and therefore the action of the national banking authority.

Regarding acts of manipulation of the digital assets market, there is still no regulation. But this does not mean that conduct amounting to market manipulation, and especially conduct that can destabilise transactions and weaken the system, cannot be penalised. Brazilian law, such as Law 4.728/64 (Article 20, inc. III), gives the BCB and the National Monetary Council the competence to act in cases of manipulation of the financial market and to apply penalties.

From a practical point of view, the transfer of crypto-assets between parties is configured to be a transaction involving that particular asset. Since cryptocurrencies cannot technically be considered "currency", but only assets, the redirection of value to a third party does not encounter legal and material impediments.

However, some measures are necessary to avoid flawed or unsupported transactions. One of them is the so-called “attitude conference”, in which the platform that makes the transaction viable (if done through one) must check, with the transferor, on the veracity of its decision; another, if there is no intermediary for the transaction, it is what is called “redundancy”, in which the parties can reconfirm the business through a specific blockchain, known as "proof of effect".

“Hot” or “cold” storage is related to the methods of guarding cryptocurrencies, or, more precisely, the private keys that allow them to be accessed. In hot storage, assets are stored in an online environment in an active and permanent way. To a certain extent, the "hot" form can favour opportunistic attacks, and even misuse of assets and interruption of the transaction chain. In the cold type, there is no uninterrupted connection to the internet, and therefore, presumably, it is a solution less subject to attacks.

In Brazil, companies can provide storage solutions in both forms, and this has been considered a service, although tax and regulatory issues have not yet been established. In addition, as each cryptowallet is offered by an entity (such as a platform), it is very common that storage is already provided for in the list of activities that investors are able to access on a platform.

In Brazil virtual assets can include both cryptocurrencies and tokens, on the grounds that, in essence, both have the same constitution, primary and mechanical purpose. With that, businesses based on the purchase and sale of tokens are seen as taking part in typical commercial activity. This results, as an example, in the fees charged by agents who perform such operations being treated as payment for services rendered, subject to the tax framework arising from service legislation.

But another interpretation is possible, depending on how the token can be traded and what it represents. If the token has securities behind it, the CVM is responsible for dealing with the matter (Resolução 830/19); if this is not the case, but it is under negotiation on a platform, and if it charges a business fee, there may be some kind of monetary implication, in which case the BCB may enter the matter.

The fact is that, without regulation, these events are subject to themselves and the interpretations they receive from market agents.

Each transaction should be treated as an event in itself. Thus, it is not relevant, to mischaracterise the transaction, that it occurs under an exchange of digital assets. This is because each asset is considered an asset, with independence from the others.

Investment funds, in theory, have a multiplicity of targets, which is why multi-funds, or multimarket funds, have discovered cryptocurrencies as a safe investment, with controllable risk and a very broad portfolio.

In Brazil, investment funds, regardless of the market in which they invest, have specific rules and conditions, and the fact that the investment object may be cryptocurrencies does not harm its framework.

The Circular CVM 11/18, resulting from Instrução CVM 555/18, which deals with investment funds, allowed, in a kind of soft opening of the regulation of these transactions, that they invest indirectly in cryptocurrencies. Although this has been promising, the Brazilian authorities continue to focus on practices such as money laundering and returning (remittance of funds for external insertion with subsequent re-entry into the country).

In practical terms, a digital asset brokerage operation is, in essence, a brokerage operation like any other. The broker acts as an intermediary, bridging the gap between the investment parties, the investor and the holder.

However, in the case of companies regulated by the CVM, if their digital assets under negotiation are backed or represented by securities, the competence to act, supervise and establish rules on the activity of brokers and brokerage rests with the CVM.

Brazilian legal culture has a strong attachment to formality, which means that there is still considerable resistance to legal transactions based, for example, on blockchain architecture. This excess of formalism has, more than in some other nations, prevented technological features, much faster and less costly, from being implemented.

Technically, there is nothing to prevent a contract, for example, or a service-level agreement, or a logistics transaction, or an investment agreement, from being built using a blockchain platform, in which the agents – no matter how many – tie the contracted conditions to a blockchain.

In practice, we are talking about smart contracts. This expression means that the terms present in the agreement are distributed in a decentralised network, on a blockchain platform, so that the final validation will always depend on the validation of each node involved.

On the other hand, it may be that, to meet certain essential formalities, the parties decide to establish the contract on a mix of platforms: traditional and blockchain. Even in this case, it is possible that the parties foresee the conditions contracted on both platforms, as in a redundancy, favouring security and reliability

Anyway, the Brazilian State, when approving the MCI, made it very clear that the authorities should encourage innovation and the diffusion of new technologies, in order to provide security and speed to transactions via the networked world of computers. And Provisional Measure 2,200-2 / 01 also provided for a series of mechanisms to ensure the authenticity and validity of documents signed electronically. Finally, when looking at the Brazilian Civil Code (Article 107), what is concluded is that, if the form of the contract is not expressly prohibited – and those based on blockchains are not – they are perfectly legal and effective in Brazil.

Consideration of developer liability, with regard to those responsible for the architecture of the relevant blockchain platform, involves the following questions:

  • Was the technological design of the blockchain designed with the expected expertise of the person who designed it?
  • Were the codes and cryptography resources used within what was reasonably practised in the market?
  • Could the failure that caused the damage be effectively perceived by the developer?
  • Could he or she reasonably have taken action within his or her power to avoid or correct it?
  • Did this developer notify the customer of the failure in good time?

In addition, three other aspects must be considered:

  • Was there, in fact, damage?
  • Did the damage result from a service (or product) failure?
  • Is there a relationship between damage and failure?

In view of all this, it may be that the developer is liable for service (or product) failure and, of course, for the resulting damages, provided they are related to the failure.

One question, however, still remains: is the responsibility to develop objective or subjective – does it not depend on guilt or does it depend precisely on it?

If the relationship between the developer and the customer is considered “consumer”, the developer's responsibility is under the Brazilian Consumer Protection Code, and is objective; if it is considered “commercial”, it is under the Civil Code, and it is subjective.

Decentralised finance (DeFi) platforms represent a relevant alternative in the financial market, since, being built based on blockchain technology, they use smart contracts to suppress intermediaries and, thus, reduce charges and make investments and resources more accessible. As custodians of assets, DeFi platforms are not directly involved in financial, banking and commercial services, and therefore would not be regulated by the relevant monetary entities. In other words, they technically do not trade currency.

However, Brazil has not yet approved any formal authorisation specifically aimed at DeFi platforms, nor regulation. In any case, and for regulatory purposes, it may be that, seen as financial institutions, no matter what their nature, they may need to be authorised by the BCB.

In the case of transactions involving interest, or commissions, or financial rewards, the creditor will have to consider that any crypto-asset, or digital asset, pledged as collateral, must be backed by a specific collateral agreement, a document, established under blockchain technology, in which the conditions of the guarantee and its eventual reimbursements, including costs of administration of the account, will be defined.

Anyway, and in general, any digital asset allows this. What should be considered is that if an asset, such as a token, is not backed by a fiat currency, a right – in a future benefit, interest or compensation – will have to be provided for in another way.

In practical terms, the investor-custodian transfer takes place through a smart contract, under blockchain, like any other transaction, considering that the investor and custodian adjust to the operation.

As, in Brazil, there is still no regulation for this transaction – although parliamentary initiatives are ongoing, suspended due to the effects of the pandemic – there is no way to talk about requirements or standards.

However, this firm has recommended that interested parties (investors, custodians or intermediation and re-contract platforms) register their operations at least with the BCB and the CVM. This is not a way to provoke regulation, but to prevent completed transactions from being questioned in the future due to the lack of transparency.

Since 2018, Brazil has had some of the most advanced legislation on the protection and security of data and personal information, the General Data Protection Law (LGPD - Law 13,709 / 18), which is based on the European General Data Protection Regulation (GDPR).

The LGPD basically covers the most important aspects of data and information privacy related to individuals, and provides for advances.

Although a good part of the LGPD does not come into force until 2021, companies are preparing for its implementation, not least because very heavy fines are foreseen for infraction or non-compliance with its rules.

Perhaps one of the biggest advantages of blockchain architecture is also a stumbling block with regard to data privacy. As its distribution is decentralised, that is, there is no intermediary agent that alone controls all transactions and their steps, it is clear that the movement of data and information, including personal information, will be intense and also distributed among the ledgers. The problem is that each operation involving such data and information is considered by Brazilian law to be a treatment, and each treatment implies the responsibility of the treatment agents. In other words, more treatments, more responsibility for agents; more agents, greater risk of data and information dispersion.

One way to solve the problem – but not the only one – is to establish a Unified Data and Information Traffic Privacy and Security Protocol, or UTRAP. But this must be done so that this document is modulated with the Data Policy of each transporter, especially if it is a company.

Another issue is the right to be forgotten. From the point of view of Brazilian law, data subjects may request that the information data processors hold about them be destroyed or returned, with or without waste. But if that data is essential for maintaining the blockchain architecture that sews a transaction together, the right to be forgotten does not apply. And this is because, otherwise, it would be impossible to safely conclude a transaction, as it would always be open to the risk of the holder requesting his or data or making it useless.

The LGPD means that virtually any transaction involving personal data or information is directly or indirectly protected, especially with regard to security and privacy. Each data treatment – collection, storage, alteration, safekeeping, refund, transfer and other actions – falls under the veil of the LGPD, and for that reason each transaction – business or not, financial, life science, private, governmental, with purpose research or for national security – is under this Law.

Thus, the Law also applies to all transactions, formal or not, of digital assets, including cryptocurrencies, tokens and finblockchains.

This firm has already been consulted about operations involving miners, or pick-ups, and how they work to, using reasonably complex algorithms, obtain a numerical sequence that makes a bridge between the previous and the later block, a kind of connection, with which they can receive a form of reward, paid in cryptocurrency.

It should be noted that, in the early days of blockchain technology (Bitcoins and the like) mining could be advantageous, but today, large operations depend on investment and powerful machines, since thousands of calculations need to be done in order to achieve the correct sequence that connects one block to the other.

Consensus protocols, especially in blockchain architectures – but not just in them, as other architectures (blockchain-02, stakershome, etc) also use this tool – have been used more frequently in transactions involving, for example, data platforms and information, now considered productive assets, because through them other transactions and other businesses have been possible. In these cases, consensus is useful because it allows validators and agents in the chain to have token usage patterns.

In Brazil, even though the activity is very recent, there are dozens of agents who "bet", that is, block a certain asset, and keep it safe in a wallet, within its blockchain. In doing so, the "bettor" ends up guaranteeing a certain stability for the blockchain, so that it works properly and ensures the correlated transaction. Therefore, the "bettor" receives for his or her bets a slice of the block's reward, usually in tokens or even cryptocurrency.

In the opposite sense to proof of effect (as described in 4.5 Re-hypothecation of Assets), "proof of stake" does not ask for a puzzle to be solved, and therefore can be considered the most advanced consensus protocol that we have today.

But, as in other cases, Brazil does not yet have a specific regulation for these operations, nor a minimum set of standards, which, according to the legislative activity that we are monitoring, should occur only in 2021.

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Law and Practice


Lopes Pinto, Nagasse is a full-service law firm, based in São Paulo, with particular expertise in corporate work, tax and tax planning, data protection (LGPD and GDPR), regulatory and compliance, digital assets (including blockchain), transportation and logistics, labour, infrastructure, agribusiness, banking and finance, and life sciences. The team is composed of seasoned and well-regarded professionals who have experience in national and multinational organisations and law firms and who are accustomed to the challenges facing today's businesses.

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