In October 2021, the cryptocurrency exchange platform Coinbase released a proposal for a regulatory framework that would designate a single regulator for the digital asset markets. This proposal comes less than a month after Coinbase’s CEO had a public meltdown on Twitter after the Securities Exchange Commission (SEC) sent the firm a Wells Notice, a warning of potential litigation, about their planned cryptocurrency lending platform allegedly violating securities regulations. As the digital asset market grows and the financial institutions involved become more influential, regulators continue to struggle with jurisdictional and definitional questions around the new products.
Cryptocurrency is a relatively new form of currency that has risen in popularity worldwide. Since the pandemic struck, many small businesses have begun to accept cryptocurrency as a form of payment for their goods and services. There is much debate regarding taxation and auditing of cryptocurrency transactions in small businesses, along with weighing the cost and benefit of providing this alternative payment method.
Despite last-ditch efforts by lobbyists for the crypto community, controversial new cryptocurrency tax requirements buried in the massive bipartisan infrastructure bill that passed the US Senate in early August will likely remain unaltered by the House which has committed to vote on the $1 trillion dollar bill by September 27, 2021. The new reporting rules are sending ripples of concern through the cryptocurrency industry and even have some national-security officials worried that their breadth and overreach will only succeed in pushing illicit activities and actors further underground. Overly aggressive regulations risk forcing illegal activity “deeper into anonymizing methods and corners of the internet that would make it more difficult for law enforcement,” according to Jeremy Sheridan, assistant director of the U.S. Secret Service’s investigations office. Moreover, overregulation could also have a chilling effect on domestic innovation and result in the U.S. falling behind other countries that adopt laws and regulations that are more favorable to new technologies. “The U.S. has to make a decision if it wants to be a center of. . . transformational technology that can bring more people into the financial ecosystem. . . [or] get left behind,” said Sigal Mandelker, a former undersecretary for terrorism and financial intelligence in the Treasury Department. Mandelker is now with a private venture capital firm which invests in the crypto markets.
Cryptocurrencies have often been associated with illegal activities due to the fact that they allow users to remain relatively anonymous. This anonymity is possible because, when transacting with Bitcoin and other cryptocurrencies, you can see where funds are being sent but not who sent or received them. However, there are signs that the use of crypto for unlawful purposes may be falling with illicit activity accounting for just 0.34% of all crypto transactions last year – down from roughly 2% a year earlier. Despite this improvement, cryptocurrency regulation appears to remain a top priority for federal lawmakers. One such example of this is the proposal of an anti-money laundering rule which would require people who hold their cryptocurrency in a private digital wallet to undergo identity checks if they make transactions of $3,000 or more. But Congress does not appear to be stopping there. As cryptocurrencies surged in value in recent days, lawmakers jumped to introduce two new bills aimed at advancing regulation of these precarious digital assets.
This October, the Securities and Exchange Commission filed an emergency action and obtained a temporary restraining order in the United States District Court for the Southern District of New York against two offshore entities, Telegram Group Inc. and its wholly-owned subsidiary, TON Issuer Inc. The SEC’s complaint asserted that the two offshore entities were conducting an unregistered offering of securities in the form of digital tokens in the United States and overseas, raising $1.7 billion to finance the businesses, including the development of its own blockchain the “Telegram Open Network” or “TON Blockchain.”
In addition to enforcement agencies attempting to tame the seemingly untameable world of cryptocurrency trading, agencies continue to tackle issues of market manipulation, including spoofing, as well as push into investigating international corruption in an effort to maintain economic and market integrity. As new developments emerge, compliance directors and operations associates will hopefully gain more guidance on coaching traders on exchange rules.
Earlier this year, Bitcoin, and cryptocurrencies writ large, occupied many financial headlines as onlookers began to divert their attention to the “unexplained” rise, and subsequent fall in the price of one the more popular (and maiden) cryptocurrencies: Bitcoin. Naturally, because many of the onlookers didn’t realize what Bitcoin was (or is), the media took lead on the story. Earlier this month, Bitcoin began to make its appearance in headlines, once again.
On September 11, 2018, the Securities and Exchange Commission (SEC) announced two enforcement actions relating to failures to register by market intermediaries in connection with digital asset activities. Despite earlier suggestions that the Commodity Futures Trading Commission (CFTC) might be the primary self-regulatory organization (SRO) regulating this market, the main takeaway from these cases is that market intermediaries dealing in digital assets may also have registration and customer protection liabilities, and the failure to observe them can result in serious penalties.
On March 6th, 2018 the. District Court for the Eastern District of New York upheld the classification of cryptocurrencies, such as Bitcoin and Litecoin, as commodities. The ruling subjects the cryptocurrencies to the regulation of the U.S. Commodity Futures Trading Commission (CFTC).
The Securities and Exchange Commission, which has been notably quiet on the subject, is beginning to show an interest in the cryptocurrency craze. It published a report last July concluding that initial coin offerings (ICOs) are subject to securities laws and that one ICO which raised nearly $150 million worth of cryptocurrency violated securities law.