Hot Takes

The UK's new blockchain welfare benefits trial has privacy advocates freaking out.

Representatives from the Open Data Initiative say:

Experimenting with putting highly personal data in immutable data stores is fraught with danger. To avoid undermining trust in government’s use of data, DWP should be much more open and transparent about the policy objective of these trials, the safeguards they are putting in place to limit the risks and the lessons being learnt through the trial.

And that's a reasonable concern. As tools, blockchains are better at provably revealing truthful information than they are at obscuring information; they are engines for trustworthy agreement not privacy. Even Bitcoin lacks robust privacy or anonymity for transactions (which is why the continued development of ZCash and Confidential Transactions is so important).

But it's not the supposed use of a "blockchain" that has me worried in this GovCoin case. I can't find the source code for this trial tech anywhere, and have to suspect that the software is proprietary. The public can only judge the privacy of a technology if the software can be openly audited. Bitcoin and other cryptocurrencies are powered by open source software, anyone can look at every detail of its technical specification. We should expect no less from a blockchain software stack employed by a government.

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Wary banks may be choking off the blockchain industry.

Aggressive de-risking is nothing new for digital currency businesses. Last year we released a report documenting the difficulty these startups had been having in securing banking relationships. Now the problem has gotten much worse with three exchanges, including the world’s largest, reporting that they are completely unable to process deposits or withdrawals, leaving customer funds trapped within their system. The Wall Street Journal has the story:

J.P. Morgan Chase & Co. prohibits banks it transacts with from dealing with virtual-currency exchanges, according to an internal document seen by The Wall Street Journal. Standard Chartered PLC also doesn’t process such transactions, according to a spokesman.

To be able to transact with the wider financial system, bitcoin exchanges must play cat-and-mouse, said Bitfinex’s Mr. Potter, continually switching bank accounts.

“They close one account, we open another somewhere else,” Mr. Potter said. “It’s a battle, but it looks like one that we appear to be losing, largely because we’re the largest such exchange in the world and we’ve got the biggest target painted on our back.”

Digital currency companies are not alone in overzealous targeting for this cut -off from the legacy financial system. Last week a Washington Post report showed that groups attempting to deliver aid to war-torn regions are suffering as well. While the goal of stopping money laundering and terrorist financing is a noble one, the incentives in place today might be driving regulators and banks to go far beyond what’s necessary and reasonable and could drive innovation overseas.

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The CSBS is suing the OCC to stop the new special purpose national bank charter for fintech firms.

In a press release, CSBS (the Conference of State Bank Supervisors) makes some alarming claims, suggesting the OCC is doomed to fall asleep at the switch, allow firms to fail, and leave fintech customers and US taxpayers as hapless victims:

The OCC’s proposed action ... harms markets and innovation, and puts taxpayers at risk of inevitable fintech failures. This is a dangerous combination and one the court should decisively halt

That sounds fantastical. The OCC is a heavy duty regulator with a century-plus-long track record; it’s not as if becoming a national bank is some easy feat, or that compliance costs are trivial. Also, as we and several others have stressed in comments throughout the OCC’s (very transparent and careful) responsible innovation proceeding, applying the patchwork of state-by-state licensing and oversight to global-by-default internet businesses is extremely costly. Any other claims aside, it's hard to imagine how providing a unified federal alternative could be bad for innovation and competition.

Moreover, if the states are doing such a great job at promoting innovation and protecting consumers, then why be so defensive here? The OCC’s charter merely provides a new alternative route to becoming a regulated fintech company; companies are free to continue seeking licensing and oversight from the states if they so choose.

Regardless of who is ultimately in the right here, this could become a turf war between powerful regulators with consumers and companies playing the part of unwitting pawns. This is not the sort of unified approach to regulating innovators that is likely to make the U.S. a technological leader. The Financial Conduct Authority in the UK and the Monetary Authority of Singapore may increasingly become the safest ports in a growing storm.

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humanitarian-aid
Overzealous AML enforcement doesn’t just harm innovation, it can also be deadly.

That’s what the conclusion of new research reported in the Washington Post today showing that the same kind of bank “derisking” that affects the deposits, wire transfers, and access to banking of digital currency firms is also affecting charities trying to save the lives of civilians injured in the Syrian civil war.

Although the hospital was run by the Syrian American Medical Society — a District-based charity that relies on donations — lack of funding wasn’t the issue. And in this case, the brutality of the Syrian regime wasn’t responsible for the supply shortage.

The problem was a U.S. bank.

During the bloody siege, the medical society had tried to wire $80,000 to a vendor in Turkey so its hospitals could stock up on medical supplies. But the U.S.-based bank, in its diligence to ensure the funds weren’t being funneled to overseas terrorists, was holding up the transfer. By the time the money went through six months later, the deadly siege was over.

The problem? AML regulations and enforcement actions have instilled such fear in banks that they won’t take a risk on anything mildly suspicious looking. A representative of the American Bankers Association explained:

“Unfortunately, banks just can’t send funds,” he said. “They look at it and say, ‘We can’t make the distinction between a charity that’s trying to get money to a starving family versus one that is ready to go out and buy a stockpile of Uzis to fire on civilians. We don’t have enough information, we can’t make that call, and if we make the wrong guess, we’re the ones that are in trouble.”

And from what we understand, there’s no simple policy fix. To address the unintended consequences of the federal government’s zealous pursuit of bad actors will require not only a change in law, but a change in culture as well. Financial institutions need to believe that they won’t be fined into oblivion for making one small mistake. This is why banks and policymakers in Congress and the Treasury should take seriously proposals like those by The Clearing House to overhaul the federal government’s AML/CFT regime.

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Amazon, Apple, Google, Intuit, and Paypal just asked Congress for a unified federal alternative to state money transmission licensing.

In a letter to congress, their industry group, Financial Innovation Now, explained how state-by-state money transmission licensing is a major impediment to innovation in financial services here in the US:

Payment innovators currently must obtain and continually update money transmission licenses in nearly every state. Consumer protection is a critical part of payments regulation, but it makes no sense for different states to regulate digital money differently from one state to another, especially if that process significantly delays entry to market and prevents consumers and businesses in many states from having equal and consistently safe access to cutting edge payments technologies.

We've been highlighting the inefficiencies of this state-by-state approach since our inception; it's probably the biggest hurdle to operating a cryptocurrency exchange or hosted wallet in the US, and (given how vaguely the definition of money transmission can be in various state statutes) it's even a potential landmine for open blockchain developers working on non-custodial apps and infrastructure. So we are very happy to see that Financial Innovation Now, with companies like Google and Apple as members, is also disatisfied with the patchwork regulatory landscape for financial technology. And we're thrilled with their suggested solution, a unified federal money transmission license issued by a new sub-branch of the department of treasury: 

Establish an optional federal money transmission license,managed by the Treasury Department, that: 1) oversees application and licensing, safety and soundness, BSA/AML compliance; 2) incorporates a number of existing state money transmitter laws and Uniform Money Services Act requirements; 3) preserves the current state structure for those wishing state licenses; and 4) offers uniform federal law only for an applicant choosing a federal license.

We've previously talked about how the OCC's fintech charter could be the vehicle for that unified approach. A fintech charter wouldn't require new rulemaking or legislation, so in some ways it could be an easier road. But! An entirely new approach would also be a great way to reach that end result, and if the bigger players in the tech world push, a legislative solution might be viable. Exciting times.

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California is back at it; a new (old) virtual currency licensing bill is pending in the Assembly.

The new bill is AB 1123. Over the last two years we’ve been discussing and studying an earlier bill, AB 1326, extensively. That bill went through several iterations: one that was carbon copy of an early N.Y. BitLicense draft, another that was markedly improved with our suggested changes, and finally one that regressed back to an overly broad and potentially innovation-crushing registration regime (that we opposed).

With a new legislative session comes a new bill. This new version has some of the elements we fought for over the last few years. In substance it most nearly resembles the version of AB 1326 that we supported rather than the original or final versions that we opposed. That said, we’re not yet ready to get behind the new bill.

Innovators in California are badly in need of regulatory certainty because the state’s Department of Business Oversight has continually refused to grant virtual currency firms money transmission license or, in the alternative, clearly state that virtual currency firms free from an obligation to get licensed. That has made it impossible to be either fully compliant or fully safe from the crushing criminal penalties of non-compliance.

This bill would remove some of that dangerous uncertainty in California. But clarity in California is only part of the larger goal we should seek: regulatory clarity across all of the states. Our best hope for that outcome right now is getting the Uniform Law Commission’s model Regulation of Virtual Currency Businesses Act passed into law by as many states as possible. We’d prefer California hold-off for the remaining three months until the ULC finalizes and release that model act, and then pass that model act. It is legislative language that has been developed carefully and deliberately over the course of almost two years by top legal as well technical experts in the field. We’ve been fortunate to work very closely with the commissioners and are thrilled with the current draft. Bottom line: It’s a better bill. Enacting the ULC model act instead of AB 1123 would be better for consumers and innovators, andand would also make California a leader in promoting uniformity and innovation amongst the states. We’ll be working with our friends in California diligently to hopefully get to that outcome.

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irs
Here’s how the tax treatment of Bitcoin is broken.

I couldn’t have put it more succinctly than this piece in the Wall Street Journal today:

One complication is that the IRS treats bitcoin as property, rather than currency. The property classification has its advantages for investors by treating bitcoin like stocks, a capital asset subject to a more favorable long-term capital gains rate. For bitcoin consumers, though, the downside is a ton of paperwork. Even the smallest transactions using bitcoin to pay for goods or services are technically taxable events, whose gains or losses must be individually tabulated. That is in contrast to more streamlined rules regarding foreign-currency holdings.

If the IRS can’t clear this up, this is a problem that needs a legislative fix and we’re working closely with our allies in Congress to get it done.

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The OCC has just taken another step toward a national fintech charter.

Today it released a draft of the licensing manual supplement that will be used by fintech companies digital currency and blockchain companies among them to understand and engage in the process of becoming a chartered special purpose national bank (often called a Fintech Charter).

The draft manual echos and clarifies previous statements from the OCC specifying that they have legal authority to charter a company that merely provides access to a payment system (even if it doesn't take deposits or make loans). The draft manual reads:

a special purpose national bank that conducts activities other than fiduciary activities must conduct at least one of the following three core banking activities: taking deposits, paying checks, or lending money.

And then, as we've asked for in previous letters, it goes on to elaborate on what paying checks means in the modern world:

issuing debit cards or engaging in other means of facilitating payments electronically may be considered the modern equivalent of paying checks.

The draft manual also delves into a topic we focused on in our most recent comment letter: under existing interpretation and law is there a broad category of bank-permissible activities which could be used to describe the range of activities in which digital currency companies engage? The OCC helpfully points a perspective applicant in the right direction through a succession of footnote references to past interpretations (the same past laws and interpretations we described in our most recent comment). These include:

buying and selling exchange, coin, and bullion [12 USC 24]

which is one possible route for appraising the purchase or sale of digital currency to customers as a bank-permissible activity. The manual also describes:

establishing and operating a messenger service (12 CFR 7.1012), acting as a finder (12 CFR 7.1002)

which is a pretty good description of running a full node or a lightning node. It also cites:

acting as a finder (12 CFR 7.1002),

which is what a digital currency exchange is doing when it connects buyers and sellers on their platform. It also cites:

producing and selling software that performs a service the bank could perform directly (12 CFR 7.5006).

which is a great match for hosted wallet design and services, e.g. a high tech version of safekeeping activities banks have provided for centuries in the form of safe deposit boxes and other custodial services.

We're thrilled that the OCC is making this process as transparent as possible, and even doing a bit of hand-holding to help innovators (who are better versed in bits than bonds) understand and navigate the chartering process.

If you’d like to read more about how a charter may be relevant to digital currency companies take a look at our most recent letter to the OCC. And look out for our next comment! Even though licensing manuals are not usually subject to a public comment process, the OCC has asked for continued feedback from the community.

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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 permisionless blockchain technologies.