Analysis

Congress’ Proposed Digital Asset Legislation May Cripple Crypto

Could the crypto-related legislation currently moving through the House bring clarity, or muddy legal waters further?

For years, the cryptocurrency industry the world around has been calling for regulatory clarity–mostly, however, to no avail.

The lack of progress has perhaps been felt more acutely than anywhere else in the United States, where industry participants and progressive legislators alike have argued that a lack of legal progress risks slowing the pace of innovation in the country while the rest of the world charges ahead.

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However, as we begin 2020, there are a number of pieces of legislation currently making their way through the United Congress that target various aspects of the cryptocurrency industry. Could clarity finally be on the horizon?

Maybe. Several of these pieces of legislation are of particular interest–perhaps unsurprisingly, two of these pieces of legislation–the “Keep Big Tech Out Of Finance Act” and the “Stablecoins Are Securities Act”–seem to be targeted at Facebook’s Libra and similar projects.

Indeed, it’s been quite a year for cryptocurrency-related activity in the United States government–and most of that activity has been spurred by Facebook’s Libra. In fact, it could be argued that the US Congress has had a particularly strong reaction to the advent of Libra–after years of little to no action regarding legislation and regulation on the cryptocurrency industry, the House (as well as other US regulatory bodies) became a flurry of activity.

However, a third piece of legislation, the “Crypto-Currency Act of 2020”, seeks to define and regulate cryptocurrency more generally. In other words, while the Act was almost undoubtedly influenced by the regulatory activity surrounding Libra, it seeks to create a framework for a perhaps more diverse set of digital assets than the other two Acts.

Still, the question remains–does the crypto-related legislation that’s currently making its way through Congress have the potential to provide the kind of regulatory clarity that crypto industry participants have been calling for all of this time, or is the legislation a series of reactionary attempts to quell the inevitable flow of innovation?

And–in either case–what are the implications of this legislation?

The “Keep Big Tech Out of Finance Act” could have some unintended consequences for companies who don’t fall under the “big tech” umbrella

The first of these two pieces of legislation, the “Keep Big Tech Out of Finance Act,” was originally proposed by the Democratic majority of the House Financial Services Committee on July 15th, 2019, just two days before David Marcus–co-creator of Libra and the head of Facebook’s official Libra wallet company, Calibra–testified before the House.

As such, while the Act was specifically designed with Libra in mind, the language in the bill targets large tech companies more generally: “a large platform utility may not establish, maintain, or operate a digital asset that is intended to be widely used as medium of exchange, unit of account, store of value, or any other similar function, as defined by the Board of Governors of the Federal Reserve System.”

Michael Wasyl, managing partner at NYC-based corporate strategy firm DeerCreek.

Michael Wasyl, managing partner at NYC-based corporate strategy firm DeerCreek, told Finance Magnates that essentially, “the act is meant to prevent any big tech company or ‘large platform utility’ with an annual global revenue of $25 billion or more from creating their own digital asset to be widely used as a medium of exchange.”

Further, “the legislation is meant to keep all stores of value within the regulated financial industry and put an embargo on technology companies from performing digital-asset based banking activities.”

Ambiguous wording in the Act could potentially lead to “a complete embargo on cryptocurrency passing over large tech platforms,” and have consequences for exchanges that grow past the $25 billion mark

However, while “the legislation is clearly a stab at Libra,” the full implications of the legislation could have wide-ranging consequences.

“The idea that a technology company with superior distribution can step into digital banking or issue a digital asset terrifies regulators, banks, and legacy financial services providers,” Wasyl said. Therefore, “while the bill is aimed at stopping the largest companies from moving upstream and affecting currency itself, the loose wording could potentially lead to a complete embargo on cryptocurrency passing over large tech platforms.”

“More generally, the bill could prevent U.S. tech companies from benefiting from blockchain technology. While the bill is intended to stop companies from releasing cryptocurrencies for consumer use, the wording may also prevent the internal use of crypto or the facilitation or handling of other digital assets covered by the broad definition.”

It’s also important to note what’s absent from the Act–“the bill does not give any type of answer on the future of blockchain platforms, exchanges, or similar entities,” Wasyl said.

“If there is demand in the marketplace for ‘big tech’ digital assets, a way will ultimately be found for someone to profit from the demand.”

Why does this matter for the cryptocurrency industry? “In the coming decade, we may see an exchange or blockchain platform post $25 billion in revenue, implicating them in the prohibition,” he explained. “This could lead to unintended consequences such as curtailing equitable distribution of cryptocurrency and other digital assets as the industry grows.”

Marc Voses, Chair of law firm Goldberg Segalla’s Data Privacy and Cybersecurity practice group, also pointed out to Finance Magnates that the legislation could potentially cause a series of work-around efforts by companies who aim to find loopholes in the law.

Marc Voses, Chair of law firm Goldberg Segalla’s Data Privacy and Cybersecurity practice group

Indeed, “it may spur the growth of non-’big tech’ companies as a workaround to the legislation precluding ‘big tech’ from becoming financial institutions,” Voses explained, adding that this could create a vicious cycle: “this may, in turn, foster increasing legislation aimed at closing loopholes.”

“One thing is for certain,” he said. “If there is demand in the marketplace for ‘big tech’ digital assets, a way will ultimately be found for someone to profit from the demand.”

”‘Hey, Libra, all the laws that apply to stocks and bonds are going to apply to you.’”

A version of the second piece of draft legislation that seems to be focused on Libra, the “Stablecoins Are Securities Act,” was introduced by Congress during the Facebook hearing with Mark Zuckerberg. Another, similar piece of legislation known as the “Managed Stablecoins Are Securities Act of 2019″ was later introduced in November of 2019.

Ultimately, the Stablecoins Are Securities Act seeks to regulated stablecoins under the Securities Act of 1933, a well-known piece of legislation that was the first federal legislation used to regulate the stock market.

Like the “Keep Big Tech Out of Finance Act,” the Stablecoins Are Securities Act does not name Libra specifically. However, the fact that Libra’s whitepaper defines Libra tokens as stablecoins–digital, non-volatile stores of value (pegged to a “basket” of fiat currencies, in this case)–has led many analysts to believe that there is a direct connection between the Act and Facebook’s project.

The Act states that “because issuers of managed stablecoins nevertheless maintain that managed stablecoins are not securities, it is appropriate for Congress to provide clarity by amending statutory definitions of the term security to include managed stablecoins.” In other words, Congress postulates that it needs to provide a new legal definition for what a “security” is–in this case, a definition that includes stablecoins.

What are the implications of this? In a piece published on the first of the year, Marketplace reporter Nancy Marshall-Genzer explained that if the bill is passed, all of the laws that currently apply to stocks and bonds will also apply to stablecoins, including Libra.

“This bill says that Stablecoins, which are [digital] coins, like Libra, pegged to a basket of something that is considered stable, so these coins are not supposed to fluctuate,” explained Marshall-Genzer. “So securities being stocks and bonds, this bill says, ‘Hey, Libra, all the laws that apply to stocks and bonds are going to apply to you.’”

 

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The “Stablecoins Are Securities Act” could have wide-ranging implications for the regulation of the national and international economy

Michael Wasyl also explained to Finance Magnates that “The bill is attempting to make all stablecoins fall under the purview of the SEC.”

However, Wasyl believes that this will not make the securities law landscape any clearer for the crypto industry–”[it] actually muddies the water,” he said.

“Per the bill, any managed stablecoin would be considered an investment contract, even stablecoins backed by other digital assets that have already been deemed not to be securities.” So, for example–if a stablecoin is algorithmically pegged to Bitcoin (BTC) or Ether (ETH)–which have both been declared not to be securities–that stablecoin would still be considered to be a security.

“The bill is also shortsighted compared to other regulation on the global stage,” Wasyl continued. For example, “China is planning on releasing a stablecoin that will be pegged to the Renminbi (RMB).”

Therefore, “if the stablecoin is used for any type of commerce in the U.S., then it would become the only currency to fall under the jurisdiction of the SEC.” This could also be true of other nationally-issued stablecoins from countries outside of the United States.

“In addition, the bill does not specify how a stablecoin created by the US [Federal Government] may be treated,” Wasyl pointed out, “and this reveals a terribly short-sighted approach to how currency is evolving.

Indeed, “financial institutions have already started to create stablecoins to better facilitate cross-border transactions and improve both collateral mobility and liquidity. Registering these stablecoins as securities would be a legal hurdle that would slow progress and adoption significantly.”

The Cryptocurrency Act of 2020 could “[minimize] confusion and [allow] for a more coherent oversight.”

The final piece of cryptocurrency-related legislation currently moving through Congress, the “Crypto-Currency Act of 2020,” was introduced by Representative Paul Gosar in late 2019.

Unlike the other two pieces of legislation, the Crypto-Currency Act of 2020–while it may have been influenced by the advent of Libra–does not seem to have been developed as a direct response to the project.

Michael Wasyl explained that the primary function of the Act is “to definitively put every type of crypto asset under the jurisdiction of some existing department.”

Specifically, “cryptocurrencies will fall under Financial Crimes Enforcement Network (FinCEN), security tokens under the Securities and Exchange Commission (SEC), and crypto commodities under the Commodity Futures Trading Commission (CFTC).”

“Interestingly, this bill classifies stablecoins as cryptocurrencies,” Wasyl said, which would cause them to “fall under FinCEN jurisdiction.” This stands in contradiction to the Stablecoins are Securities Act–”that would give jurisdiction to the SEC,” Wasyl explained.

Digital privacy expert Ray Walsh explained the Act to Finance Magnates this way: “the Crypto-Currency Act of 2020 splits cryptocurrencies into three different types of assets; cryptocurrencies, crypto-commodities, and crypto-securities,” he said.

Digital privacy expert Ray Walsh.

“These definitions are designed to allow legislators to more easily produce regulations that oversee the crypto-sector. It also allows each kind of token or asset to be assigned a specific regulatory body, thereby minimizing confusion and allowing for a more coherent oversight.”

“[Establishing] clarity over who oversees and is responsible for legislating those kinds of assets will help to protect both government and consumer interests.”

Walsh explained that the Act represents an attempt to bring “precise clarification” to the crypto space, effectively ending the “wild west” days of crypto once and for all: “[establishing] clarity over who oversees and is responsible for legislating those kinds of assets will help to protect both government and consumer interests,” he said.

Still, there are some believe that this Act could be a reaction to Libra: “critics of the Act claim that it is primarily designed to ensure that Libra is classified as a security (tradable financial asset) and falls under the regulatory supervision of the SEC.

Kawa Foad, vice president of the legal department at business advisory service provider BX3 Capital, told Finance Magnates that if passed into law, the Crypto-Currency Act of 2020 could potentially bring the kind of clarity to the crypto space that so many industry participants have been hoping for.

“I like Representative Gosar’s Crypto-Currency Act of 2020,” Foad said. “It clearly defines crypto, [places crypto] in different groups based on utilities and attributes, [and] designates the appropriate US agencies as the regulators.”

Kawa Foad, vice president of the legal department at business advisory service provider BX3 Capital.

Foad believes “‘smart money,’ or institutional money, will not enter the crypto market on a large scale until we have some clarity, which this act would certainly provide.”

”The US must be at the forefront of financial innovation, and fear-driven legislation will not help us get there.”

However, Michael Wasyl believes that none of these acts–not even the Crypto-Currency Act of 2020–will ultimately bring the kind of clarity that is really needed to the space.

“These laws do not address the regulation that advocates had been asking for in a significant way.
Advocates are looking for regulation that will allow for these technologies to be used in daily life,” he said.

“For example, crypto users want laws that classify how cryptocurrencies can be used for commerce. This would require significant improvement to tax treatment and caps higher than $600. In addition, they want laws that will allow blockchain to be tested for real use cases in regulated industries to unlock financial alternative services, collateralized lending, and more.

“However, the proposed legislation would likely limit exploration instead of providing harmony and a nuanced approach. The US must be at the forefront of financial innovation, and fear-driven legislation will not help us get there.”

And will any of these bills actually be passed into law? Perhaps not–“it is unlikely the acts will be passed without significant changes in the short term,” Wasyl said.

“The laws are written with broad conflicting definitions and are directly threatening to technology companies with clear intentions of slowing down efforts of projects like Libra. It is likely that the legislation will encounter resistance from lawmakers that do not wish to hinder innovation.”

“The lobbying efforts from Big Tech in 2019 also help lower the possibility of passing. Facebook, in particular, has increased its lobbying arm to record highs, reaching about $13M in 2019 according to the Senate’s lobbying database. Along with other tech giants from Amazon hitting record figures, it is unlikely that the proposed legislation will exist in their current all-encompassing form.”

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