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The legal dangers of getting involved with DAOs
Buying DAO tokens? That’s no longer risk-free: Courts might consider you a partner in the business and judge you liable for millions in hacked funds. Another legal trap may be found simply working for a DAO — and implementing community decisions that turn out to be illegal in some far-flung jurisdiction. With many DAO communities […]
Buying DAO tokens? Thats no longer risk-free: Courts might consider you a partner in the business and judge you liable for millions in hacked funds. Another legal trap may be found simply working for a DAO and implementing community decisions that turn out to be illegal in some far-flung jurisdiction.
With many DAO communities waking up to the reality that they need some sort of legal structure or legal personality in order to act in the real world, solutions from mimicking corporate structures to anonymously run foundations are being floated by lawyers around the world.
Nothing in this article should be construed as legal advice and not just because the law isnt clear about any of it.
Code is law?
In 2021, Magazine interviewed Griff Green, whose heroic actions to thwart The DAO hack on the morning of June 17, 2016, helped save a good proportion of the 14% of Ether in existence at the time. By identifying how the exploit worked, his team of hackers worked to steal faster than the malicious actor, thus limiting the amount taken by the individual who discovered the error in The DAOs code. But who did this ETH belong to?
Did it belong to the 11,000 investors who had contributed Ether toward the project in the previous month? If so, what claim did they have, considering that these investors had handed their money to an organization without leaders or jurisdiction, governed entirely by smart contracts that operated according to the votes of investors?
Or did it belong to the malicious hacker who simply interacted with the publicly available smart contract in a way that allowed them to withdraw Ether? Many would argue this is perfectly legal as per the code is law mantra.
Since The DAO had no legal personality, by what law could it hope to pursue the hacker, even if they were identified? The same goes for the investors how could they claim that the stolen Ether was theirs, given they made no legal agreements and signed no contracts when making their investments?
Perhaps the Ether that Greens team got a hold of was now rightfully theirs? Green acknowledges that he took a huge risk with the preemptive stealing of 10% of the Ether in circulation and recalls how as word spread, a multitude of legal threats poured in demanding how the recovered funds should be distributed despite the fact that we were just normal people; we didnt have a company. Eventually, Greens team returned the funds through a decentralized application.
After finding Ooki DAO had capacity to be sued and served by the @CFTC, Court enters default judgment against Ooki DAO when it fails to answer. It will be interesting to see if this gets challenged and what issues will arise when the CFTC seeks to enforce its judgment. pic.twitter.com/7NsW3AHVkZ
— Alex More (@UTAMore) January 18, 2023
These questions are just now beginning to be tested, with one of the first (developing) cases to emerge being that of Ooki DAO, accused of breaking the Commodity Exchange Act (CEA) by allowing users to engage in retail commodity derivative trading transactions without registering the platform or conducting KYC procedures. In January 2023, the judge found Ooki to be an unincorporated association comprised of Token Holders, which could be sued in the same way as a person or corporation and that it could be served by posting a notice onto the DAOs online community forum.
Another recent example of pitting code against law can be found in the case of Avraham Eisenberg, who in December 2022 was arrested on the request of U.S. authorities in Puerto Rico for having run a highly profitable trading strategy that effectively exploited the smart contract of Mango Markets, a decentralized finance DAO draining it of $110 million.
He claimed the whole exploit was perfectly legal under the code is law mantra, but the FBI disagreed. The case is yet to be tested in court.
Partnerships, foundations or corporate wrappers?
When it comes to DAOs, The DAO can be understood as the original example upon which the concept is based. As such, The DAO is often considered an ideal example of what a decentralized autonomous organization is supposed to be: cryptographically decentralized with no real-world anchor, its operations automated by way of smart contracts, and organized by way of blockchain governance.
In practice, however, courts may interpret DAO structures as General Partnerships, which have unlimited joint and several liability for all participants, observes Jason Corbett, managing partner of blockchain-specialized boutique law firm Silk Legal.
Jonathan Turnham, a partner at Cayman Islands law firm Travers Thorp Alberga, spends 95% of his time working on crypto law and agrees that its complicated. He explains that, in theory, a truly decentralized DAO that functions as a decentralized exchange or metaverse project can be a code-based business, a bunch of 1s and 0s and does not technically have a need for a real-world corporate structure or physical business.
If a DAO envisions that it might ever need to sign any type of contract, it is not code-based and, by some definitions, not a DAO at all. Source: PexelsBut in his experience of advising dozens of DAOs, this model of total decentralization tends to run into trouble quickly perhaps even in the first 10 minutes of operation.
A codebase business still needs a front end, Turnham explains, listing real-world needs like domain names, web hosting, banking services or hiring lawyers all of which are very difficult to acquire and pay for as a non-registered ghost-like entity. Any DAO that needs to enter into contracts involving real estate, intellectual property or even buying the U.S. Constitution cannot simply be code-based, as they will need some type of legal personality.
Youve got this awkward inability to bridge into the real world you know, right down to you just needing a damn credit card or bank account to be able to pay a non-crypto service provider.
Currently, DAOs have no legal status in most jurisdictions, says Irina Heaver, partner of Keystone Law, which specializes in the blockchain industry, and general partner of VC investment firm Ikigai Ventures. Shes talking in the context of metaverse projects that are being launched on decentralized protocols. Legally speaking, traditional companies seem to remain the main game in town.
A year ago crypto twitter raised $47million in days to buy a *copy* of the United States constitution.
— Luke Martin (@VentureCoinist) November 21, 2022
Now we have Genesis, one of the largest crypto trading/lending desks, in need of $500 million.
Feel like this one is much more important.
Can someone spin up a DAO & save us?
There are of course exceptions. The U.S. state of Wyoming has recognized American CryptoFed DAO as a legal entity, and Vermont has seemingly done so as well with dOrg LLC.
Oliver Goodenough, special counsel to the DAOs law firm Gravel & Shea, commented, We believe that dOrg is now the first legal entity that directly references blockchain code as its source of governance. Its material operations and ownership interests are managed entirely on-chain. A Senate committee report even recommended the Australian government should soon recognize DAOs in a legal capacity, though it is yet to act on the advice.
Read also
Does legalizing DAOs kill what makes them special?
But Sarah E. Paul, partner at Eversheds Sutherlands, is critical of the way in which the legalization of DAOs has rolled out, pointing out that certain provisions of Wyomings DAO law are antithetical to the basic idea that a DAO is supposed to operate entirely via smart contracts.
DAOs would have to define in the articles of organization how the members will manage the DAO, including the extent to which governance would occur algorithmically theyre supposed to define how dispute resolution will occur, and that cant be totally managed by smart contracts, she says.
In this sense, one may wonder whether DAOs are really a unique legal contraption at all, or whether they are to corporations roughly what registered civil partnerships are to marriage essentially the same thing with a modern lick of paint.
Heaver, in turn, argues that the concept of a traditional company is morally outdated. If the C-word is too dirty for a DAO team to associate with, a foundation may be another alternative.
Turnham sometimes guides teams to set up a foundation in the Cayman Islands, which can then act as the arms and legs of the DAO as a service provider with legal personality. While he acknowledges that the true Web3 crowd may consider such a solution as not meeting the threshold of a DAO due to its having a centralized legal entity, Turnham explains that the solution is not too far off the ideal because such a foundation can be effectively orphaned, with no need for shareholders.
MKR DAO dissolves Cayman Foundation in July to decentralize. ENS DAO forms one in November to have decentralization + manage legal. Crypto lawyers, discuss.
— ross (@z0r0zzz) November 4, 2021
Going back to corporations, there are also something he calls wrapped DAOs, which are incorporated in a jurisdiction such as his that allow for an anonymous or semi-anonymous board of directors to control the project in a way largely impossible within many other legal systems.
Legal risks
Nevertheless, the risks faced by foundation directors or even mere employees are significant because they cannot justify their actions simply by telling a judge that the community wanted me to do this if they were doing something obviously illegal (for a U.S. entity, at least) such as financial dealing with North Korea.
Turnham expands that this can be seen to support the view that DAOs should function much like corporations, with boards of directors that function essentially to give a sober second thought to community suggestions and avoid the super violent, super abusive or frankly super illegal activities that some DAO votes may try and push through.
If the DAO you work for votes to become a crime syndicate, quit and send your tokens to a burn address. Source: PexelsSuch a corporate setup is at odds with genuine blockchain governance because governance tokenholders do not have executive authority to make day-to-day decisions, Turnham clarifies, describing them as more akin to adviser tokens for the DAO, which functions more like a community suggestion box for its administrators to consider. This model, he believes, is one that judges can easily understand.
When a DAO is not wrapped into a corporate shell, Turnham confirms that an entire project could be viewed as a general partnership. In effect, a judge could find that all tokenholders are in a common enterprise for profit as general partners, which comes with full liability for every other tokenholders actions concerning the project.
Thats a pretty violent outcome because guess what, you can now have 1,000 governance tokenholders that are now involved in a potential breach of securities laws securities regulators can theoretically go after every single one of them for being involved.
This undoubtedly sounds like a nightmare, and it is precisely why 400 years of corporate law were developed in the first place as a fence to protect investors. Painting in such broad historical strokes, the idea of using DAOs to circumvent the need for such legal entities comes across as a rather awkward venture at best and a doomed one at worst.
Perhaps the answer lies in moderation. If a pure and traditional DAO proves unwieldy in most real-world applications, can the concept be watered down to meet reality? For Turnham, decentralization is a spectrum, and there is plenty of room between the black and white of cypherpunk ideals and traditional corporate structure.
Paul agrees, noting that all the DAOs Ive looked at have had some level of centralization as a practical matter, they have found it hard to function without that.
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Securities law and governance tokens
In addition to the risk of being found to be partnerships whose tokenholders are responsible for all manner of corporate actions, there is concern that the governance tokens issued by DAOs will be found to be securities in themselves.
If so, their issuance to the public falls under highly regulated securities legislation, especially in the U.S., where the sale of unregistered securities to unaccredited investors can be seen as a crime with severe fines and jail terms. Regulations vary around the world, so what may be of no legal concern in one jurisdiction may very much be a problem when tokens are received by someone in another country.
DAOs were basically designed to cause headaches for legal professionals. Source: PexelsWhether or not a token can be classified as a security in the United States is determined by the Howey Test, which defines that securities consist of (1) an investment of money (2) into a common enterprise with (3) a reasonable expectation of profit that is (4) derived from the efforts of others.
Things dont look great at first glance people invest cryptocurrency to receive what appear to resemble voting shares in a business, usually with the hope of selling them for a higher amount.
Arguments can of course be raised against any of the Howey Test points. For one, it could be argued that cryptocurrencies, such as ETH with which tokens are purchased, is not money, or that the tokens are distributed by other mechanisms, for example via airdrops to NFT holders, as in the case of APE tokens worth tens of thousands of dollars each to owners of Bored Ape Yacht Club NFTs. It can also be well argued that certain DAOs do not operate with the intent of generating profit, instead functioning as something more akin to a social club, gaming community or charity organization.
There is virtually no case law in this area you are drafting into a vacuum.
In Turnhams view, DAOs largely cannot be defined as securities because as decentralized organizations, they cannot necessarily be said to be managed by others though it is not clear if that would hold up in the courts. The Howey Test is not used by the Cayman and British Virgin Islands legal system, which he says is a favorable jurisdiction for DAOs to operate.
When it comes time to distribute profits or excess capital, DAOs can spend surplus proceeds on buying tokens off the secondary market, thus creating a deflationary effect which is going to indirectly have some benefit and value to other tokenholders. In another example, a DAOs foundation can certainly agree to make a contractual payment to tokenholders on a pro-rata basis almost like a dividend, but technically not quite the same. This is important because otherwise, DAO tokens may begin to resemble bearer shares, stocks whose ownership is determined by physical possession of stock certificates rather than registered ownership, a form of security that is outlawed in the Cayman Islands.
Turnham admits that there are few users of DAO tokens in the jurisdictions he works in, meaning that, in practice, those holding an interest in and participating in DAO governance are doing so from potentially more restrictive jurisdictions abroad. Before selling tokens, the correct legal advice, he says, is to advise teams to do the impossible:
In a perfect world, I would say to DAO founders to go to every single jurisdiction and get a legal opinion from a lawyer from all those places to say whether your token is or isnt a security and whether you can or cannot sell it to people there.
Getting 200 legal opinions on securities law is hardly affordable, so, in practice, diligent teams will seek legal clarity on higher risk jurisdictions, which Turnham figures include the U.S., U.K., Canada and Australia among others with special attention to any country that is expected to host a large number of tokenholders.
Who knows a DAO that is alive and well and in public ?
— reka.eth (,) (@reka_eth) January 10, 2023
Most of what we label as DAOs are still in the phase of being fab crypto adjacent internet communities, far from decentralization. pic.twitter.com/R0H2XeSEIi
A legitimate future?
Despite the headaches DAOs are already producing for the legal profession, the lawyers interviewed for this article share a common thread of optimism regarding the new concept not just as a legal vehicle but as a movement for the modernization of the corporate world.
The key seems to be the way that DAOs encourage community, feedback and participation via online tools, such as Discord, something quite unlike normal public corporations, where once a year, you have an annual general meeting and the agenda gets rammed down investors throats without any real debate, says Turnham, likening it to a healthy and fundamental change in the way corporations have operated for generations.
You couldnt have had a DAO 100 years ago, notes Paul, mentioning her observation that the movement has a positive energy that connects people around the world. In five years, she foresees DAOs in an increasingly cemented piece of organizational architecture:
I think DAOs will keep growing theyll battle with regulation over the next few years, but I think they will come out of it.
Read also
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Don’t be deceived by different testimonies online that is most likely wrong. I have made use of several recovery options that got me disappointed at the end of the day but I must confess that the tech genius I eventually found is the best out here. It’s better you devise your time to find the valid professional that can help you recover your stolen or lost crypto such as bitcoins rather than falling victim of other amateur hackers that cannot get the job done. ADAMWILSON . TRADING @ CONSULTANT COM / WHATSAPP ; +1 (603) 702 ( 4335 ) is the most reliable and authentic blockchain tech expert you can work with to recover what you lost to scammers. They helped me get back on my feet and I’m very grateful for that. Contact their email today to recover your lost coins ASAP…
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11.10.25 10:44
Tonerdomark
A thief took my Dogecoin and wrecked my life. Then Mr. Sylvester stepped in and changed everything. He got back €211,000 for me, every single cent of my gains. His calm confidence and strong tech skills rebuilt my trust. Thanks to him, I recovered my cash with no issues. After months of stress, I felt huge relief. I had full faith in him. If a scam stole your money, reach out to him today at { yt7cracker@gmail . com } His help sparked my full turnaround.
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12.10.25 01:12
harristhomas7376
"In the crypto world, this is great news I want to share. Last year, I fell victim to a scam disguised as a safe investment option. I have invested in crypto trading platforms for about 10yrs thinking I was ensuring myself a retirement income, only to find that all my assets were either frozen, I believed my assets were secure — until I discovered that my BTC funds had been frozen and withdrawals were impossible. It was a devastating moment when I realized I had been scammed, and I thought my Bitcoin was gone forever, Everything changed when a close friend recommended the Capital Crypto Recover Service. Their professionalism, expertise, and dedication enabled me to recover my lost Bitcoin funds back — more than €560.000 DEM to my BTC wallet. What once felt impossible became a reality thanks to their support. If you have lost Bitcoin through scams, hacking, failed withdrawals, or similar challenges, don’t lose hope. I strongly recommend Capital Crypto Recover Service to anyone seeking a reliable and effective solution for recovering any wallet assets. They have a proven track record of successful reputation in recovering lost password assets for their clients and can help you navigate the process of recovering your funds. Don’t let scammers get away with your hard-earned money – contact Email: [email protected] Phone CALL/Text Number: +1 (336) 390-6684 Contact: [email protected] Website: https://recovercapital.wixsite.com/capital-crypto-rec-1
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12.10.25 01:12
harristhomas7376
"In the crypto world, this is great news I want to share. Last year, I fell victim to a scam disguised as a safe investment option. I have invested in crypto trading platforms for about 10yrs thinking I was ensuring myself a retirement income, only to find that all my assets were either frozen, I believed my assets were secure — until I discovered that my BTC funds had been frozen and withdrawals were impossible. It was a devastating moment when I realized I had been scammed, and I thought my Bitcoin was gone forever, Everything changed when a close friend recommended the Capital Crypto Recover Service. Their professionalism, expertise, and dedication enabled me to recover my lost Bitcoin funds back — more than €560.000 DEM to my BTC wallet. What once felt impossible became a reality thanks to their support. If you have lost Bitcoin through scams, hacking, failed withdrawals, or similar challenges, don’t lose hope. I strongly recommend Capital Crypto Recover Service to anyone seeking a reliable and effective solution for recovering any wallet assets. They have a proven track record of successful reputation in recovering lost password assets for their clients and can help you navigate the process of recovering your funds. Don’t let scammers get away with your hard-earned money – contact Email: [email protected] Phone CALL/Text Number: +1 (336) 390-6684 Contact: [email protected] Website: https://recovercapital.wixsite.com/capital-crypto-rec-1
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12.10.25 19:53
Tonerdomark
A crook swiped my Dogecoin. It ruined my whole world. Then Mr. Sylvester showed up. He fixed it all. He pulled back €211,000 for me. Not one cent missing from my profits. His steady cool and sharp tech know-how won back my trust. I got my money smooth and sound. After endless worry, relief hit me hard. I trusted him completely. Lost cash to a scam? Hit him up now at { yt7cracker@gmail . com }. His aid turned my life around. WhatsApp at +1 512 577 7957.
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12.10.25 21:36
blessing
Writing this review is a joy. Marie has provided excellent service ever since I started working with her in early 2018. I was worried I wouldn't be able to get my coins back after they were stolen by hackers. I had no idea where to begin, therefore it was a nightmare for me. However, things became easier for me after my friend sent me to [email protected] and +1 7127594675 on WhatsApp. I'm happy that she was able to retrieve my bitcoin so that I could resume trading.
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13.10.25 01:11
elizabethrush89
God bless Capital Crypto Recover Services for the marvelous work you did in my life, I have learned the hard way that even the most sensible investors can fall victim to scams. When my USD was stolen, for anyone who has fallen victim to one of the bitcoin binary investment scams that are currently ongoing, I felt betrayal and upset. But then I was reading a post on site when I saw a testimony of Wendy Taylor online who recommended that Capital Crypto Recovery has helped her recover scammed funds within 24 hours. after reaching out to this cyber security firm that was able to help me recover my stolen digital assets and bitcoin. I’m genuinely blown away by their amazing service and professionalism. I never imagined I’d be able to get my money back until I complained to Capital Crypto Recovery Services about my difficulties and gave all of the necessary paperwork. I was astounded that it took them 12 hours to reclaim my stolen money back. Without a doubt, my USDT assets were successfully recovered from the scam platform, Thank you so much Sir, I strongly recommend Capital Crypto Recover for any of your bitcoin recovery, digital funds recovery, hacking, and cybersecurity concerns. You reach them Call/Text Number +1 (336)390-6684 His Email: [email protected] Contact Telegram: @Capitalcryptorecover Via Contact: [email protected] His website: https://recovercapital.wixsite.com/capital-crypto-rec-1
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13.10.25 01:11
elizabethrush89
God bless Capital Crypto Recover Services for the marvelous work you did in my life, I have learned the hard way that even the most sensible investors can fall victim to scams. When my USD was stolen, for anyone who has fallen victim to one of the bitcoin binary investment scams that are currently ongoing, I felt betrayal and upset. But then I was reading a post on site when I saw a testimony of Wendy Taylor online who recommended that Capital Crypto Recovery has helped her recover scammed funds within 24 hours. after reaching out to this cyber security firm that was able to help me recover my stolen digital assets and bitcoin. I’m genuinely blown away by their amazing service and professionalism. I never imagined I’d be able to get my money back until I complained to Capital Crypto Recovery Services about my difficulties and gave all of the necessary paperwork. I was astounded that it took them 12 hours to reclaim my stolen money back. Without a doubt, my USDT assets were successfully recovered from the scam platform, Thank you so much Sir, I strongly recommend Capital Crypto Recover for any of your bitcoin recovery, digital funds recovery, hacking, and cybersecurity concerns. You reach them Call/Text Number +1 (336)390-6684 His Email: [email protected] Contact Telegram: @Capitalcryptorecover Via Contact: [email protected] His website: https://recovercapital.wixsite.com/capital-crypto-rec-1
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01:15
tyleradams
Hi. Please be wise, do not make the same mistake I had made in the past, I was a victim of bitcoin scam, I saw a glamorous review showering praises and marketing an investment firm, I reached out to them on what their contracts are, and I invested $28,000, which I was promised to get my first 15% profit in weeks, when it’s time to get my profits, I got to know the company was bogus, they kept asking me to invest more and I ran out of patience then requested to have my money back, they refused to answer nor refund my funds, not until a friend of mine introduced me to the NVIDIA TECH HACKERS, so I reached out and after tabling my complaints, they were swift to action and within 36 hours I got back my funds with the due profit. I couldn’t contain the joy in me. I urge you guys to reach out to NVIDIA TECH HACKERS on their email: [email protected]
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