By Gregory Zerzan, ShareholderShareholder Gregory Zerzan and Zachary King of Clear Markets Holdings co-authored an article that published in the ACC Docket on June 9, 2021 discussing the thriving cryptocurrency market “amid legal uncertainty as to what extent US investment and financial services laws apply to these digital assets.”
U.S. regulators, including the U.S. Securities and Exchange Commission (SEC), Commodities Futures Trading Commission (CFTC) and Financial Crimes Enforcement Network (FinCEN), have created a patchwork framework for the regulation of cryptocurrency.
FinCEN’s guidance is clear for the use of cryptocurrencies by "users," "administrators" and "exchangers, stating that if a cryptocurrency user “obtains convertible virtual currency and uses it to purchase real or virtual goods or services,” they are not engaged in money transmission services. In addition, “FinCEN issued a Notice of Proposed Rulemaking (NPRM) to apply certain Bank Secrecy Act/anti-money laundering requirements to banks and Money Services Businesses whose customers engage in transactions with “unhosted wallets,” the authors said.
“Despite the ongoing evolution of federal regulatory interest in this area, the market for cryptocurrency continues to grow globally. This includes an increasing number of corporations that are not only willing to accept cryptocurrency as payment, but even to hold digital tokens as assets. For example, Paypal and Sotheby's will accept as payment, and Tesla, Microstrategy and Square hold as assets. Even as U.S. regulators continue to mull the appropriate scope of federal law as it applies to cryptocurrencies the market has strongly voted with its pocketbook,” the authors continue.
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