The main issue then becomes how can we clarify between (1) actual and intentional control of the coins being sent over and (2) those that we have no control over and therefore we should not be held liable.
I believe that in order to progress, we need a centralized mechanism to report these issues. But this comes into tension between (1) privacy and autonomy of the Bitcoin user and (2) fraud protection. If we can establish a centralized mechanism for reporting, at least there is a case to build for the innocent user with the unknown coin being sent over. However, this method of course is subject to abuse where the innocent user is not so innocent and fraudulently files the report to the centralized agency to cover any legal responsibility. But note, at this point, the fraudulent user will actually have to forfeit that particular bitcoin fund. Therefore the user may not be incentivized to fraudulently files, and this system might work to help users legally.
In regards to the discussion point between lost property or treasure trove, I think it truly rests on the intention of the user. This is truly difficult to evaluate, therefore the user should be careful and cautious to document his or her action, so to guard against legal actions.
What regulatory mechanism do you suggest for this issue of "control?"
BTCbuyer Team.
I've given the issue much thought and happened across this reference, a legal challenge, to the introduction of Scottish Banknotes in 1695.
At issue was whether the recipient of a tainted banknote could be held responsible for previous illegal acts committed with the banknote. Essentially, does the holder of a banknote (bitcoin) have free and clear title to that note despite its previous history?
The Royal Bank of Scotland prevailed in the lawsuit. The legal argument essentially said that not providing title upon acceptance of a banknote "would be to render the Notes absolutely useless, and consequently would in a great Measure deprive the Nation of the Benefit of the Banks, which could hardly subsist without the Circulation of their Notes".
I would suggest the same for bitcoin. That the holder of the private key must have free and clear title to the bitcoins represented by the private key.
Any centralize repository of tainted coins would, in effect, inhibit the free circulation of bitcoins making them, in the words of the 18th Century court "absolutely useless".
Of course, just like paper currency, the acquisition of a private key by fraudulent means should be illegal.