On June 28, the European Council and Parliament achieved a political consensus on the Data Act, which moves the legislation regarding non-personal data closer to fruition.
Thierry Breton, European Union commissioner for the internal market, described the agreement in an X post as a “milestone in the reshaping the digital space.”
Another deal! ⁰Tonight’s agreement on the #DataAct is a milestone in reshaping the digital space.
Thanks to the swift work of the EP @delcastillop & the Council Presidency, we are on the way of a thriving data economy that is innovative & open — on our conditions. pic.twitter.com/vTWUU8xTx9
The Data Act complements the Data Governance Act of November 2020 by clarifying who can create value from data and under which conditions. It stems from the European Strategy for Data, announced in February 2020, which also aims to position the EU as a regulatory frontrunner in the era of data-driven society.
The Data Act is part of the European Commission’s wider data strategy aimed at making Europe a global leader in the data-agile economy. In simple terms, the Data Act proposes new rules on who can access and use data generated in the EU across all economic sectors.
For the Data Act to become law, it must be approved by a vote of the European Parliament and the Council, which represent the bloc’s 27 member states. And once again, as with the Markets in Crypto-Assets (MiCA) regulation, the crypto sector is facing a major challenge. The problem raised by the new EU data law could permanently change the use of smart contracts in the European Economic Area (EEA) –– and not for the better.
Smart contract “kill switch”
The blockchain community is largely concerned about one provision in the Data Act, namely that automated data-sharing agreements contain a “kill switch” by which they could be terminated or halted in the event of a security breach.
Many blockchain experts contend that the current definition of smart contracts in the Data Act is broad, fearing it may lead to unintended consequences for existing smart contracts on public blockchains. For example, the text of the upcoming law doesn’t distinguish between just digital contracts and smart contracts utilizing distributed ledger technology.
But above all, the Data Act supposedly doesn’t give clear details about the conditions under which safe termination or interruption kill switch should occur, and it is hard to predict the potential outcomes with a higher degree of certainty. The smart contract architecture often doesn’t allow for termination or interruption, as blockchain technology is praised for being immutable and irreversible.
The Data Act also doesn’t say exactly what a “data sharing agreement” is, and it doesn’t explain if the smart contracts currently ubiquitous in Web3 applications follow these kinds of agreements.
“By design, most of smart contracts don’t offer a termination or interruption feature and are often un-upgradable to ensure higher levels of protection from abusive behaviors,” Marina Markežič, executive director and co-founder of European Crypto Initiative, told Cointelegraph.
“The fact that smart contracts lack such features puts their use and development at risk. They may be perceived as inconsistent with regulatory requirements.”
“The problem is if the scope of Article 30 were to be extended beyond the application of smart contracts in this narrowly defined context, and on public permissionless networks. It becomes not only problematic but almost impossible for such protocols to comply,” he said.
Per Voloder, another concern is whether these rules could spill over into decentralized finance (DeFi). “As we do not have a DeFi regulation, this is a question that will need an answer over the next 18 months as the EC prepares its position on DeFi.”
Moreover, kill switches can have errors because of human mistakes and, in smart contracts in general, “as they are rigid, bounded information environments.” This rigidity, plus an automatic feature that triggers a certain outcome following strict rules, could lead to issues like locking up assets, shutting down protocols or even losing funds and important data, said Voloder.
A lot of uncertainty
The Data Act has rules for vendors of an app using smart contracts, or for people whose business involves deploying smart contracts.
According to Markežič, the Data Act might cause such vendors and deployers to be more cautious and consider whether their smart contracts in any way contain a data-sharing agreement. Apps might need to change how they work to meet these rules if their smart contracts share data.
But first, it’s crucial to understand who exactly needs to follow these rules, Markežič said:
Erwin Voloder, head of policy at the European Blockchain Association, told Cointelegraph that Article 30 of the Data Act applies when parties agree to share data using a smart contract, and this contract follows the rules. It should be fine if it’s only for that situation, especially when used on a controlled network where the Data Act’s safety stop can be used.
“Is the regulation even targeted toward DeFi platforms and protocols? […] It should be clarified under what circumstances the ‘access control’ is provided, what, who, why and how the ‘safe termination or interruption’ measure is triggered and how protocols prevent further abusive behavior thereof.”
Markežič stated that, in the past, some changes and terminations were made on a protocol layer as part of the overall governance mechanisms.
A kill switch on the level of a smart contract might lump projects and individuals into “a single point of failure, prescribed by the regulators.”
Therefore, it’s critical that regulators clarify who has the power to use this kill switch.
Crypto community across the globe reacts
The crypto community has already proposed some alternative solutions to bring more legal clarity to smart contracts.
In April 2023, Polygon had already penned an open letter suggesting how to improve Article 30, sating that lawmakers could apply these rules to enterprises only, excluding software and developers, and make clear that smart contracts aren’t “agreements” in and of themselves.
More recently, the European Crypto Initiative and numerous organizations, such as Stellar, Iota, Polygon, Near, Coinbase, Cardano and ConsenSys, have signed an open letter voicing their concerns regarding the Data Act and calling on lawmakers to reconsider and clarify certain aspects.
We called on lawmakers to reconsider and clarify certain aspects of the #DataAct in our Open Letter, written with other 5 organisations and 55 signatories ✉️https://t.co/37IrdSsFXC
— European Crypto Initiative (@EuCInitiative) August 8, 2023
They argued that the Data Act could potentially clash with the recently agreed MiCA regulation. MiCA, which will come into force in 2024, provides a license for crypto exchanges and wallet providers to operate throughout the EU.
They further claim that European lawmakers deliberately sidestepped the more complex issue of decentralized financial regulation –– an issue the Commission will need to revisit in the coming years.
More harm than good?
The trialogue on the Data Act has been completed, and this means that the text has reached its final version and is likely to be enacted in its current form.
According to Markežič, the new law could affect the European crypto industry and businesses that want to operate in the EU, stating that the Data Act doesn’t give clear details about what use cases the new rules apply to, and that makes the whole industry unsure about what to expect. And this is just the first step in the direction of regulating smart contracts, setting a precedent for forthcoming actions, she said.
The next important step for the community is to work closely with European standardization groups. These groups are responsible for creating the standards that vendors and developers of smart contracts should follow when making agreements to share data, especially given that these vendors will need to make sure their smart contracts broadly align with the scope of Article 30.
According to Voloder, if the Data Act is extended to public networks, it could mean companies leaving the EU, at worst, and “otherwise being pigeonholed into a narrow development trajectory of smart contracts in the best case.”
“The result is capital flight, stifled innovation and a floundering blockchain industry in Europe. At a time when Europe is at the vanguard of the regulatory apex, the timing of such an outcome would be most inopportune.”
Major developers will only deal with one regulator under planning reforms which ministers say will “rewire the system” to get Britain building – all while protecting the environment.
A review by former Labour adviser Dan Corry into Britain’s sluggish system of green regulation has concluded that existing environmental regulators should remain in place, while rejecting a “bonfire of regulations”.
But Mr Corry suggested there might be circumstances in which the government look at changing the wildlife and habit rules inherited from the EU, which protect individual species.
The government has now explicitly ruled out any such change in this parliament.
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Campaigners have questioned whether the changes go far enough and will make a major difference to the rate and scale of building in the UK.
Speaking to Sky News, Environment Secretary Steve Reed insisted that accepting nine of the recommendations from the Corry review would amount to wholesale reform.
The minister said: “We can get a win-win for economic growth and for nature. And that is why we are moving ahead with proposals such as appointing a lead regulator for major developments so that the developers don’t have to navigate the architecture of multiple regulators.
“They just work for a single regulator who manages all the others on their behalf. Simplifying the online planning portal.
“These are huge changes that will save developers billions of pounds and speed up decisions doing damage to the environment.”
Mr Reed insisted that there would be “no more bat tunnels” built, even though the Corry review suggests that more work needs to be done to look again at the relevant guidance.
It says: “Rapidly reviewing the existing catalogue of compliance guidance, including on protecting bats, will identify opportunities to remove duplication, ambiguity or inconsistency.
“Natural England has already agreed to review and update their advice to Local Planning Authorities on bats to ensure there is clear, proportionate and accessible advice available.”
The review will mean:
• Appointing one lead regulator for every major infrastructure project, like Heathrow expansion
• A review on how nature rules are implemented – but not the rules themselves
• Insisting regulators focus more on government priorities, particularly growth
Economist and former charity leader Mr Corry, who led the review, said it shows that “simply scrapping regulations isn’t the answer”.
“Instead we need modern, streamlined regulation that is easier for everyone to use. While short-term trade-offs may be needed, these reforms will ultimately deliver a win-win for both nature and economic growth in the longer run.”
However, Sam Richards from Britain Remade, a thinktank trying to get Britain growing, said that while the steps are welcome, the number of regulators that report to the environment department would remain the same before and after the review. He questioned whether this would have the impact ministers claimed.
Kentucky’s finance watchdog has dismissed its lawsuit against Coinbase over the exchange’s staking rewards program, following its peers in Vermont and South Carolina.
Kentucky’s Department of Financial Institutions filed the stipulation to dismiss jointly with Coinbase on April 1, ending the state’s legal action against the exchange first filed along with 10 other state regulators in June 2023.
Coinbase chief legal officer Paul Grewal posted to X on April 1, calling for Congress “to end this litigation-driven, state-by-state approach with a federal market structure law.”
Financial regulators from 10 states launched similar suits against Coinbase in June 2023, on the same day the Securities and Exchange Commission sued the exchange — a lawsuit the SEC dropped last month.
Seven suits against Coinbase still active
Alabama, California, Illinois, Maryland, New Jersey, Washington and Wisconsin are the seven states that are still continuing with their lawsuits, which all allege Coinbase breached securities laws with its staking rewards program.
Vermont was the first state to end its suit against Coinbase, with its Department of Financial Regulation filing an order to rescind the action on March 13, noting the SEC’s Feb. 27 decision to drop its action against the exchange and the likelihood of changes in the federal regulator’s guidance.
The South Carolina Attorney General’s securities division followed Vermont days later, dismissing its lawsuit in a joint stipulation with Coinbase on March 27.
Kentucky’s decision to drop its case against Coinbase follows just days after the state’s governor, Andy Beshear, signed a “Bitcoin Rights” bill into law on March 24 that establishes protections for crypto self-custody and exempts crypto mining from money transmitting and securities laws.
The axed state-level lawsuits come amid a stark policy change at the SEC, which has dropped or delayed multiple lawsuits against crypto companies that it filed under the Biden administration.
The federal securities watchdog has also created a Crypto Task Force that is engaging with the industry on how it should approach cryptocurrencies.
Sir Keir Starmer has said US-UK trade talks are “well advanced” ahead of tariffs expected to be imposed by Donald Trump on the UK this week – but rejected a “knee-jerk” response.
Speaking to Sky News political editor Beth Rigby, the prime minister said the UK is “working hard on an economic deal” with the US and said “rapid progress” has been made on it ahead of tariffs expected to be imposed on Wednesday.
But, he admitted: “Look, the likelihood is there will be tariffs. Nobody welcomes that, nobody wants a trade war.
“But I have to act in the national interest and that means all options have to remain on the table.”
Sir Keir added: “We are discussing economic deals. We’re well advanced.
“These would normally take months or years, and in a matter of weeks, we’ve got well advanced in those discussions, so I think that a calm approach, a collected approach, not a knee-jerk approach, is what’s needed in the best interests of our country.”
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Downing Street said on Monday the UK is expecting to be hit by new US tariffs on Wednesday – branded “liberation day” by the US president – as a deal to exempt British goods would not be reached in time.
A 25% levy on car and car parts had already been announced but the new tariffs are expected to cover all exports to the US.
Jonathan Reynolds, the business and trade secretary, earlier told Sky News he is “hopeful” the tariffs can be reversed soon.
But he warned: “The longer we don’t have a potential resolution, the more we will have to consider our own position in relation to [tariffs], precluding retaliatory tariffs.”
He added the government was taking a “calm-headed” approach in the hope a deal can be agreed but said it is only “reasonable” retaliatory tariffs are an option, echoing Sir Keir’s sentiments over the weekend.
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0:28
‘Everything on table over US tariffs’
Mr Trump will unveil his tariff plan on Wednesday afternoon at the first Rose Garden news conference of his second term, the White House press secretary said.
“Wednesday, it will be Liberation Day in America, as President Trump has so proudly dubbed it,” Karoline Leavitt said.
“The president will be announcing a tariff plan that will roll back the unfair trade practices that have been ripping off our country for decades. He’s doing this in the best interest of the American worker.”
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3:09
Trump’s tariffs: What can we expect?
Tariffs would cut UK economy by 1%
UK government forecaster the Office for Budget Responsibility (OBR) said a 20 percentage point increase in tariffs on UK goods and services would cut the size of the British economy by 1% and force tax rises this autumn.
Global markets remained flat or down on Monday in anticipation of the tariffs, with the FTSE 100 stock exchange trading about 1.3% lower on Monday, closing with a 0.9% loss.
On Wall Street, the S&P 500 rose 0.6% after a volatile day which saw it down as much as 1.7% in the morning.
However, the FTSE 100 is expected to open about 0.4% higher on Tuesday, while Asian markets also steadied, with Tokyo’s Nikkei 225 broadly unchanged after a 4% slump yesterday.