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Lets say a company like BitGo controls one key in a P2SH multisignature address, are they a custodian and subject to the bitlicense?

For enforcement, is it even possible to tell if someone is being a custodian if they use bitlicense?

Any insight appreciated

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This falls into an explicitly gray area, as called out by a number of people when bitlicense was first adopted. For example, see; https://twitter.com/twobitidiot/status/606157758224834561 and the linked tweet. Also see: https://coincenter.org/2015/02/our-initial-thoughts-on-new-yorks-revised-bitlicense-proposal/

Practically, if you're not acting as a custodian, then it's unlikely to be enforceable, and they will leaver you alone. If you are, effectively acting as a custodian over the funds, it is possible that NY could choose to go after you - and they have expensive lawyers.

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Firstly I am not a lawyer, secondly I am not providing legal advice. Always consult with a lawyer before taking any actions.

In my view of the way bitcoin works you are not a custodian unless you have access to spend the bitcoins in question, so it may depend upon which implementation of multisig is implemented. If you are using a 2 of 3 multisig and the web service in question only stores one key then they are not capable of spending the bitcoin in question thus not a custodian. If you implemented a 2 of 3 system and were in control of 2 of the keys then you would be considered a custodian. NYSDFS has not clarified the definition of custody as it relates to multisig today, but perhaps an organization that has gone through the bitlicense process could question the DFS as it relates to this matter.

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