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.”
The vibe I got from Congress today was:
Libra, why can’t you be more like Bitcoin?
— hodlonaut ⚡ (@hodlonaut) July 17, 2019
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.
“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.”
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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