BitMEX Update Terms of Service, New Focus on Unauthorized Citizens

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BitMEX, perhaps the world’s foremost cryptoasset derivative exchange, has undertaken a major update to their Terms of Service (ToS – new here, old here), expanding their legal prerogatives. The update comes in an era of growing media attention regarding BitMEX’s efforts to keep unwelcome users off their platform.

The changes are set to go info effect on March 6th.

mextos.png(source: BitMEX.com)

In terms of length, the ToS document has grown considerably, from 2,800 words to around 5,000. The added literature comprises updates to access conditions to the platform, and the “accuracy and availability” of service on the platform. Furthermore, there are entirely new stipulations surrounding trading fees, the consequences for users of sending “trading instructions” (i.e., executing actions), and on intellectual property.

Trading Data for Sale?

One key change is the addition of literature specifically emphasizing HDR’s (BitMEX’s parent company) ownership of “any derivative work” derived from “[the user’s] content.” HDR claim the right to use this derivative work for “any purpose, commercial or otherwise.”

All of this means that BitMEX can use anything its users do on the platform (e.g., trade), organize or analyze that information any way they want – even sell it.

The previous ToS also claimed ownership of such derivative work for HDR to use as it saw fit; but before did not make explicit mention of possibility of commercial use of this derivative work, although such usage could perhaps have been derived from the previous text.

Unauthorized ‘Citizens’

One of the biggest issues lately concerning BitMEX has been the exclusion of users prohibited by the laws of their country from accessing and trading on the site, most notably users from the US and Québec who would be in violation of securities laws. There are additional prohibitions for citizens from Cuba, Crimea and Sevastopol, Iran, Syria, North Korea, and Sudan.

It has been reported in recent months that BitMEX has taken up a new resolve to exclude such members from trading, although a BitMEX representative maintained that “BitMEX has banned all US traders since 2015, and has been proactively closing accounts since guidance was obtained by US regulators.”

One of the most high-profile actions in this respect was the November de-platforming of Tone Vays, a so-called Bitcoin maximalist and prominent trader and social media personality – and US citizen.

CryptoGlobe, in January, conducted extensive research on the features of BitMEX’s protections against North American users connecting to its platform, especially on the subject of blocking VPN connections to the site – finding that there could be cause for concern.

In this vein, perhaps, BitMEX have added further stipulations to the ToS regarding their access conditions. A small but important change in the terms is an expansion of the definition of who may not trade. Where previously “Residents of the United States of America or Québec (Canada) [were] prohibited” from trading, a more robust definition now obtains.

Both residents and citizens of the US and Québec are now explicitly excluded from trading on BitMEX, as are those of any other “jurisdiction that is embargoed by the [US].” The specific term “citizen” was not entirely absent in the previous iteration of the ToS; but it has become far more central now, with seven mentions of the word now versus one before.

The new ToS still does not, however, make any specific mention of the use of VPNs. Rather, it restates the previous literature no doubt aimed at VPN accessing, which said that “If it is determined that any BitMEX trading participant has given false representations as to their location or place of residence, BitMEX reserves the right to close any of their accounts immediately and to liquidate any open positions.” The updated version of this clause now emphasizes citizenship plainly:

If HDR determines that you are accessing the Services or the Trading Platform from any Restricted Jurisdiction, or have given false representations as to your location of incorporation, establishment, citizenship or place of residence, HDR reserves the right to close any of your accounts immediately and liquidate any open positions.

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