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FinCEN raises major licensing problem for ICOs in new letter to Congress.

Nearly a year ago Coin Center released a report highlighting a looming ambiguity in FinCEN’s interpretation of federal anti-money-laundering laws: whether or not token sellers are money transmitters who are subject to the Bank Secrecy Act and need to do “know your customer” compliance with respect to their buyers, and arguing that any such interpretation would require formal rulemaking. We issued the report in part because we felt that the separate but related discussion over whether token sellers might be issuing securities had overshadowed this issue and left many unaware of the serious legal consequences that could stem from potentially violating the Bank Secrecy Act rather than the Securities Acts.

As it happens, our concerns were well-founded. Today FinCEN released a letter to Senator Ron Wyden clearly indicating that they interpret the relevant laws and regulations such that token sellers are money transmitters:

A developer that sells convertible virtual currency, including in the form of ICO coins or tokens, in exchange for another type of value that substitutes for currency is a money transmitter and must comply.

Make no mistake, this is a highly consequential interpretation. Accordingly, any group or individual developer who both (A) sold newly created tokens to buyers (i.e. had an ICO) involving U.S. residents and (B) failed to register with FinCEN as a money transmitter,and perform the associated compliance KYC/AML obligations, can be charged under a federal felony criminal statute, 18 U.S.C § 1960, with unlicensed money transmission. If found guilty one could face up to five years in prison. Criminal liability may also extend to employees of, and investors in, the business that sold the tokens.

There are important public policy questions at stake here:

  1. Is it wise or appropriate under relevant administrative law to make this substantial change/clarification in interpretation through a letter to a member of Congress interpreting guidance, rather than a public rulemaking or new legislation?
  2. Is it constitutional to mandate private data collection from people who are not financial intermediaries in the traditional sense, and may be better analogized to persons selling a new invention to buyers in a person to person transaction?

It is very difficult to take this letter and derive from it a clear picture of FinCEN’s interpretation. Only one footnote is given to explain their legal reasoning:

See, FIN-2013-G001 (explaining that convertible virtual currency administrators and exchangers are money transmitters under the BSA), and FIN-2014-R001, Application of FinCEN’s Regulations to Virtual Currency Mining Operations, January 30, 2014 (explaining that persons that create units of virtual currency, such as miners, and use them in the business of accepting and transmitting value are also money transmitters).

This footnote does not tell us whether FinCEN classifies these sellers as “exchangers” or “administrators,” two distinct types of money transmitter identified by the 2013 guidance. As we describe in our 2015 paper, there are compelling reasons why a developer selling a token is not an administrator: they cannot both issue and redeem the tokens that they sell, like a Bitcoin miner they merely put them into circulation and cannot claw them back (assuming they have sold an actual decentralized token and not some promise of future tokens). There are also good reasons why a developer selling a token is not an exchanger. They may sell but they do not do so as a business dedicated to exchange; they sell as one individual or entity would sell any valuable investment or commodity to another person, for their own purposes rather than to provide third-party money transmission services between two customers or people.

The bulk of the cited 2014 guidance on miners explains why a Bitcoin miner is not a money transmitter if they merely create the units. To be a money transmitter a miner must also sell them as part of an exchange business, rather than merely sell them on their own behalf. We can only assume that FinCEN believes that developers selling tokens are “in the business of accepting and transmitting value” in addition to creating new tokens. No doubt a developer selling tokens is accepting value, but who are they transmitting it to aside from themselves?

This is a complicated and consequential legal interpretation, and one that should be discussed, unpacked, and eventually finalized in a more formal and transparent setting, e.g. a rulemaking. A footnote in a letter to a Congressman should not suffice.

In the conclusion to our report from last May we outlined Coin Center’s position on these matters:

Common understanding suggests that money transmission is an act performed by an intermediary, a person who stands between two parties accepting money from one and transmitting it to another. When a person transacts directly with another person, giving them money for any reason—as a gift, a payment, a donation, a grant, a tip—she does not play this intermediary role. She does not hold herself out as a trusted third party. She is engaged in private, personal transactions rather than being engaged as a third party to the transactions of others.

Deputizing third-party intermediaries to surveil their users on behalf of the government is a policy choice Congress made long ago; one that carries risks to individual privacy but also potential benefits to national security and peace. It’s a tradeoff Congress made back in the 1970s and it isn’t going away anytime soon. However, mandating the same kind of surveillance from individuals who are not intermediaries—who are merely transacting on their own account with another citizen—is a considerable recalibration of the balance between privacy and security. It tips the scales against personal privacy and may even be unconstitutional.

This is not a recalibration that should be made merely by issuing administrative rulings or guidance, the approach thus far taken by FinCEN when dealing with these questions. Instead, FinCEN should clarify that selling decentralized virtual currency on one’s own account does not constitute money transmission, regardless of whether the purpose of that sale is to pay a merchant, to sell tokens received through mining, or—indeed—to sell one’s own newly invented decentralized token.

Should FinCEN or Congress wish to regulate this activity for financial surveillance purposes, that change must be the subject of a larger, more public debate within a notice and comment rulemaking or an amendment to the statutory law itself. Only those formal processes can enable necessary debate over financial surveillance and the constitutionality of warrantless search.

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Several members of Congress have sent a letter to the IRS calling for cryptocurrency tax clarity.

Today's letter, published by House Ways and Means Committee Chairman Kevin Brady, calls on the agency to “expeditiously issue more robust guidance clarifying taxpayers’ obligations when using virtual currencies.” It is a follow-up to a letter published in 2017.

These letters echo Coin Center’s calls for greater clarity and guidance around the tax treatment of cryptocurrencies. Right now, American cryptocurrency users who want to pay their taxes simply don’t know how to do so properly. This gray area is not only frustrating, but can also create serious liabilities for well-meaning citizens.

The 2017 letter goes on to ask for more information about the rationale behind the IRS’s 2017 John Doe summons for Coinbase user data, which we believe is an overly broadfishing expedition.

We were also pleased to see them ask if the agency will consider a de minimis exemption for small transactional use of cryptocurrencies, which we called for in April of last year. Currently, a user needs to calculate capital gains on every stick of gum they buy with cryptocurrency. That doesn’t make sense. The Cryptocurrency Tax Fairness Act, introduced last year, would address this issue.

We are glad to see Congress take action–there are clearly many open questions surrounding taxation of cryptocurrencies. It’s promising to see members of Congress step up to call for a more welcoming environment for these new technologies.

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The Comptroller of the Currency is making the case for a Federal Fintech Charter, a welcome alternative to state-by-state licensing for cryptocurrency and other payments companies.

In a recent op-ed, Comptroller Otting rightly celebrates competition between state and federal regulators and describes the existing dual banking system:

“Since 1863, the United States has benefited from a dual banking system in which companies seeking to conduct the business of banking can choose to operate via state licenses and charters or apply for federal charters and operate nationwide.”

A shortcoming of the dual banking system, as we see it, is that while there are both state and federal options for traditional deposit-taking banks, payments companies who don’t take deposits (cryptocurrency exchanges among them) generally only have one option: state regulation through money transmission licensing. Why, we’ve asked on several occasions, isn’t there a federal regulatory alternative for money transmitters as there is for regular banks?

The OCC’s fintech charter could be that alternative. It would allow a financial services company to become federally regulated as long as it performs any one of the three core banking functions described in the National Bank Act: deposit-taking, lending, or check-cashing (or as the kids these days call it, payments).

Moreover, as we’ve written in our comments submitted to the OCC Fintech Charter proceedings, companies that facilitate payments in cryptocurrency should also be eligible for federal charters just like the Paypals or Venmos of the world.

Today, the Comptroller echoed that sentiment, suggesting that there should be a Federal analog to New York’s recent decision to regulate Gemini and Itbit’s issuance of dollar-backed tokens. We’re thrilled that the federal charter effort is alive and kicking and that the Comptroller is excited for his agency to play a role promoting innovation in the cryptocurrency space.

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The Federal Reserve of St. Louis has published an excellent paper on payment systems and privacy.

Research Fellow Charles Kahn explains why financial privacy is important irrespective of concerns over illicit transactions, and how privacy is being actively eroded as electronic payment systems replace anonymous cash.

Not all of the privacy provided by cash is bad, and if cash disappears we will need new ways of providing that privacy. Because privacy needs are different in type and degree, we should expect a variety of platforms to emerge for specific purposes, and we should expect continued competition between traditional and start-up providers.

He goes on to offer two reasons why the private sector may be better poised to provide future cashless payment privacy than the government: technical expertise and trustworthiness.

First, it's hard to argue that the central bank will have greater technical skills in protecting privacy (at least in retail transactions; wholesale and infrastructure may be a closer call). The standard regulatory arguments for oversight of payments systems apply, however: There is an easy case for a regulator to be in charge of setting and harmonizing standards for privacy protection.

On the issue of trustworthiness, the answer is more difficult: … Every twist and turn in politics provides an opportunity to justify an examination of one or another aspect of individuals' transactions. And it is not clear in the current political environment that a central bank or a payments authority will be any stronger at pushing back on these intrusions than private institutions are.

Nor will transparency solve the problem. Paper money is transparent: The technology eliminates the ability of the issuer to monitor transactions, and "it is a truth universally acknowledged" that paper money does so. No computer technology can have this degree of confidence. Only an infinitesimal proportion of people on this planet can verify that computer code does what it advertises it does and only what it advertises. To believe that the CIA has imprinted paper currency with a technology enabling it to report hand-to-hand transactions is paranoia. To believe that spy agencies have backdoors to common computer programs is last week's news. Generating trust in the privacy promises of a public payments authority's new electronic money will be an extremely tall order.

He's also understandably wary of the trustworthiness of private sector payments providers given the lucrative incentives behind customer data collection and monetization. In light of that unfortunate reality, he offers an optimistic balance-of-powers prognosis for privacy:

All institutions, public or private, are likely to be untrustworthy—they are just going to be untrustworthy in different ways. Citizens are not really interested in an absolute guarantee of privacy; we simply want it to be sufficiently difficult to violate privacy that it can be done only in a publicly observed and generally agreed way. Using the differences in objectives of the private and public spheres becomes, it seems to me, a way of making this tension work for us: Public regulation with pushback by private providers seems to me the more hopeful formula.

That's a reasonable approach, but it also points to an alternative. Rather than looking for trustworthy institutions or pitting one untrustworthy institution against another, perhaps we can use open source software development and open blockchains to build private payment systems that don't require trustworthy administrators at all! This, it seems to me, is one way to describe the goal of privacy-protecting cryptocurrency projects like Zcash, Monero, and Grin, and it's why we at Coin Center are so keen on promoting a regulatory climate that does not deny these new technologies the room they need to grow into robust cash alternatives.

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SEC refusal to allow exchange to list Winkelvoss ETP “Dampens Innovation,” according to SEC Commissioner Hester Peirce.

The SEC rejected a request to allow the BZX Exchange to list and trade shared of the Winkelvoss Bitcoin Trust, a Bitcoin based Exchange-Traded Product (ETP). In order to allow the exchange to list the ETP, the SEC would have had to approve a rule change. The SEC refused to do so, largely because they felt that the BZX Exchange did not have sufficient safeguards in place to prevent market manipulation.

In her dissent from the decision, Commissioner Hester Peirce laid out the flaws in the SEC’s reasoning, and shone a light on the challenge to innovation that this decision poses:

By suggesting that bitcoin, as a novel financial product based on a novel technology that is traded on a non-traditional market, cannot be the basis of an ETP, the Commission signals an aversion to innovation that may convince entrepreneurs that they should take their ingenuity to other sectors of our economy, or to foreign markets, where their talents will be welcomed with more enthusiasm.

To support her point, Peirce lists some of the many benefits that decentralized cryptocurrencies offer:

For example, trading in bitcoin is electronic, which facilitates competition and price transparency. Bitcoin are interchangeable, so that a purchaser is sure to get exactly the same thing no matter where she purchases it. In addition, bitcoin mining is not geographically limited (except to the extent it migrates to places with cheap electricity), so it is not subject to geopolitical threats that plague other commodity markets.

Peirce voices serious concerns about the discord between the SEC’s actions and its mission. She warns that with this decision, the SEC has positioned itself as the “gatekeeper of innovation,” which, in Peirce’s view, is a role that “securities regulators are ill-equipped to fill.” Peirce argues that investors in the cryptocurrency space tend to have far more sophisticated knowledge of the technology and should be left to decide for themselves whether they wish to invest. She concludes by asserting that the SEC has overstepped its boundaries and is acting in interests contrary to the ones it was founded to protect:

I reject the role of gatekeeper of innovation—a role very different from (and, indeed, inconsistent with) our mission of protecting investors, fostering capital formation, and facilitating fair, orderly, and efficient markets Accordingly, I dissent.

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Despite criticisms, Fed agrees it won’t regulate cryptocurrency.

Last week, Federal Reserve Chairman Jerome Powell testified before the House Financial Services Committee, and while reports of his remarks on cryptocurrency have focused on his narrow and negative views of the technology, we think the real news is that he stated that the Fed doesn’t have jurisdiction over cryptocurrencies and isn’t seeking to provide oversight.

An exchange between Powell and Rep. Patrick McHenry, who understands cryptocurrency, basically restates Coin Center’s recent explainer on crypto and monetary policy: “Cryptocurrencies hold much promise to expand the range of monetary options available to all classes of people and secure a degree of security and liberty not offered by some of the world’s government-backed currencies. They currently exist in a small and experimental corner of the world’s financial markets, and are therefore unable to restrain central bank’s monetary policy levers.”

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Experts weigh in the the state of cryptocurrency regulation.

At a recent event hosted by Andreessen Horowitz and #Angels, Coin Center Senior Policy Counsel Robin Weisman joined former federal prosecutor and now lead of a16z’s crypto fund Kathryn Haun on stage to talk through recent movements in cryptocurrency policy and the effect they may have on the development of this technology.

The session was recorded. Listen here:

(Photo courtesy of @beLaura on Twitter)

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A top SEC official said that Ether is not a security.

Speaking today at a conference, the U.S. Securities and Exchange Commission’s Director of Corporate Finance, William Hinman, revealed in a speech that the SEC does not consider Ether, the Ethereum network’s native cryptocurrency, to be a security:

"Based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions."

We are glad the SEC agrees with our long held analysis of how securities law applies to decentralized cryptocurrency networks like Bitcoin and Ethereum (See, in particular, our analysis of Ethereum here). We are thrilled to see it take strong pro-innovation approach to this nascent technology. With this guidance, the SEC is showing that taking a pro-innovation approach does not have to come at the expense of protecting investors.

Director Hinman’s analysis was based on an appreciation for the nuances of how decentralized technology really works, something we laid out years ago in our framework for securities regulation of cryptocurrencies. He used his speech to explain the Howey Test for determining whether a financial instrument is an investment contract and concluded that his analysis was that Ethereum failed the Howey test and, therefore, could not be considered a security:

When the efforts of the third party are no longer a key factor for determining the enterprise’s success, material information asymmetries recede. ... the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult, and less meaningful.

It is a very good day for US policy toward the technology of innovation.

For more information on Ethereum, please see this explanation written by Ethereum’s founder, Vitalik Buterin, on Coin Center’s website: What is Ethereum?

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Based in Washington, D.C., Coin Center is the leading non-profit research and advocacy center focused on the public policy issues facing cryptocurrency and decentralized computing technologies like Bitcoin and Ethereum. Our mission is to build a better understanding of these technologies and to promote a regulatory climate that preserves the freedom to innovate using permissionless blockchain technologies.