December 2021 Foodman Website and JD Supra
Crypto Regulation

Don’t Expect Coherent Rules to Align Any Time Soon

Multiple enforcement agencies within the US government agree that the $2.5 trillion crypto industry needs regulation. And heads of the largest crypto companies have told Congress that they agree. But therein lies the rub: the government has yet to define what crypto is, let alone how it will be regulated and taxed.

A litany of questions remains

Is crypto a commodity or security? Is crypto the financial system of the future, or the hub of money laundering criminals? Will regulations be overseen by OFAC, the DOJ’s new National Cryptocurrency Enforcement Team, The Financial Action Task Force, The Securities and Exchange Commission, FinCEN, state and local governments or the court system? They all have reports, proposals and recommended enforcement resources.

Who will prosecute bad actors? Will the focus be on the crypto criminals themselves or the “enablers” that help foreign clients hide assets in the American financial system?  These could include trust companies, lawyers, accountants, notaries, real estate agents, dealers in precious metals and stones, art dealers, casinos and even public relations firms.

While lawmakers wrestle with definitions, the digital currency industry grows exponentially, with 21 bitcoin and blockchain leaders making the coveted Forbes 30 Under 30 list for 2021. There is no doubt that the crypto industry, and its holdings, are on the rise.

Hearings, lobbying and a soupcon of desperation

In a Congressional hearing on Dec. 8, Charles Cascarilla, CEO and co-founder of Paxos Trust Co., which provides financial services to crypto firms, said “We need clear standards and the government’s support to create a new, more secure, more competitive financial system. The benefits of getting this right are enormous — but so are the consequences of getting it wrong.”

The subtext throughout the hearing: if the virtual currency regulations are too stringent, the players will simply leave the U.S. to operate offshore.

Banks want Congress to apply the same level of regulatory scrutiny to crypto startups as they do traditional lenders. The American Bankers Association said in a letter to the Congressional committee that firms offering bank-like services should receive bank-like regulation.

Can’t we all get along?

Deputy Secretary of the U.S. Treasury Wally Adeyemo remarks at the Chainalysis conference asserted that “digital assets are yet another innovation with the potential to be transformative. … We don’t know how this new technology will evolve, but we know that like other innovations, they offer the potential to unlock new opportunities.” He said that the U.S. Government seeks to create a regulatory environment “that fosters responsible innovation, writing clear rules of the road that mitigate these risks while preserving the economic opportunities this technology creates.”

“You see cryptocurrency and related Fintech innovations as ways to make the global economy easier to navigate for everyone. And I want you to know: We share that aspiration.” He added, “As I said before, ransomware is not a cryptocurrency problem in the same way online fraud schemes are not the fault of the internet.” And he noted “ It is instead a reason to treat the misuse of virtual currencies for what it is – a cybercrime and national security problem – and that is a problem we can address together.”

But then there are the existing and proposed penalties, fines, taxes and regulations from myriad agencies.

Proposed Regulations

Definitive regulations seem far off, given the confusing, and repetitive world of those being proposed. Here are the leading players.

NCET

Enter stage left: The Department of Justice’s National Cryptocurrency Enforcement Team (NCET), which focuses on directing enforcement resources towards the financial ecosystem that allows ransomware and similar threats to flourish. NCET is composed of federal prosecutors from the Money Laundering Asset Recovery Section (MLARS), the Computer Crime and Intellectual Property Section (CCIPS), and Assistant U.S. Attorneys detailed from U.S. Attorneys’ offices around the country.

It plans to “investigate, support, and pursue cases against cryptocurrency exchanges, infrastructure providers, and other entities that are enabling the misuse of cryptocurrency and related products to commit or facilitate criminal activity.”

Additionally, the NCET will provide training, advise government agencies, and support coordination and information sharing among federal, state, local, tribal, and international law enforcement agencies.

This announcement represents a shift in focus from the criminal actors themselves to the companies that provide the services and technology in the crypto space to make the crimes possible.

ENABLERS

Then there is the bipartisan Establishing New Authorities for Business Laundering and Enabling Risks to Security (Enablers) Act. It would also update the 51-year-old Bank Secrecy Act, which requires banks to investigate their clients and the source of their wealth. In effect, the new provisions would expand FinCen’s 2020 Anti-Money Laundering Act.

Deputy Secretary of the U.S. Treasury Wally Adeyemo remarks at the Chainalysis conference leaned on the government’s perception that the misuse of virtual currencies results in cybercrime and is a national security problem. 

Secretary Adeyemo stated the U.S. Government wants to create a regulatory environment “that fosters responsible innovation, writing clear rules of the road that mitigate these risks while preserving the economic opportunities this technology creates.”

SEC and OFAC

Both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC), through their respective directors of enforcement, recently emphasized their focus on enforcement targeting the cryptocurrency sector.

October 2021 also saw the Office of Foreign Asset Control (OFAC) release updated guidance on sanctions compliance for the virtual currency industry. Then, on Nov. 8, 2021, FinCEN released a new advisory on ransomware, reiterating that disrupting payment mechanisms used by cybercriminals to stop ransomware attacks is a high priority of the federal enforcement establishment. It also reminds companies to implement appropriate compliance programs to identify and report suspicious cyber-related activity.

The issues identified in his remarks that must be addressed by the U.S. Government are centered around the risks and national security concerns of AML, terrorist financing, and ransomware.

TREASURY DEPARTMENT AND FATF

In addition, there is the Treasury’s recently released Bank Secrecy Act Report on Ransomware Trends. It provides an industry snapshot of the suspicious activity reports that FinCEN received during the first half of 2021. 

The Financial Action Task Force (FATF) issued an updated Virtual Currency Guidance in October 2021. Stating that it wishes to clarify its recommendations about virtual assets, it goes on for 109 pages that are anything but clear.

Its chief recommendation is that the crypto industry should not wait for the Treasury to act and should police its own platforms for compliance.

THE BOTTOM LINE

When it comes to government regulation of the burgeoning virtual currency industry, there currently is no clear guidance. Don’t expect rules alignment any time soon.

While we wait for decisions on whether crypto is currency, security, commodity, utility or a new tulip craze, my best advice is to carry on and stay calm. ©