Cash has long been king in the realm of financial transactions, but the increasing acceptance and use of virtual currencies may one day end its reign. Less than ten years after the launch of the first decentralized virtual currency, known as bitcoin, total market capitalization in the space stands at over $458 billion. Investors are actively supporting the development of new virtual currencies by participating in initial coin offerings (ICOs) that sell digital tokens rather than stock. Over 100,000 businesses, including household names such as Expedia, Microsoft and Overstock, accept virtual currency as payments for goods and services. And financial institutions are offering new trading products based on virtual currency.
Against this backdrop, it is no surprise that virtual currency has captured the attention of regulators. Thus, although the current regulatory landscape is still developing, market participants and their attorneys are well-advised to expect additional oversight. This article provides an overview of the virtual currency marketplace as well as the applicable regulatory frameworks in place to date.
Although the internet revolutionized the way that the world does business, for a long time it had little impact on the way that assets were exchanged between parties. Traditional asset exchange often involved cash or bank-backed electronic transactions. The presence of an intermediary gave parties a measure of security and confidence in the transaction. Barring the use of counterfeit cash or identity theft, cash and electronically transmitted currency could not otherwise be duplicated. Virtual currency, on the other hand, treats cash more like a computer file. A computer file — whether in the form of a document attached to an email or digital cash — can exist in multiple places at once. Accordingly, without the aid of an intermediary to keep track of account balances, there was no way to ensure that a purchaser did not send the same $100 to two merchants at the same time. Nor was there a way to ensure that the merchant actually received the money. All that changed in 2009 with the introduction of bitcoin, a virtual currency based on an innovative recordkeeping technology that made it possible to have secure financial transactions without third party oversight (blockchain). Today, while bitcoin remains the largest virtual currency in terms of market share, hundreds of similar virtual currencies are being traded.
To understand how blockchain works, imagine that a spreadsheet is replicated thousands of times across a network of computers, and that the network is designed to periodically update the spreadsheet, so that all parties with access to the spreadsheet have access to it at the same time. Consistent with this model, information stored on the blockchain exists as a shared and continuously reconciled database. Before a new transaction is added to the ledger, it is verified against the record and then entered as part of a “block” of data. The blocks are time-stamped and set up in such a way that no individual entry can be altered without also altering every previous entry (and doing so on a majority of the computers on the network). Together with the fact that it is fully transparent, not controlled by a single user, and without any single point of failure, blockchain is generally considered to be more secure than traditional financial systems. Moreover, because blockchain enables transactions to take place without any involvement from a financial institution or government body, the transfer of funds can occur more quickly and cheaply than in the traditional financial system.
Many herald blockchain as a significant medium for future financial transactions. Goldman Sachs has patented a digital cash system, and four of the largest banks in the U.S. and Europe — BNY Mellon, Deutsche Bank, Santander, and UBS — have joined forces to develop their own protocol based on their expectation that virtual currency is becoming a core component of the financial market. Along the way, these banks are working with regulators to ensure the virtual currency system is created in a way that is consistent with any future regulatory framework. Other top financial institutions, including Citigroup and UBS, are reported to be working on similar projects in concert with exchanges and technology companies. These efforts are intended to facilitate and expedite the clearing and settling of trades — a process that has historically cost the finance industry approximately $65 to $80 billion annually — by allowing financial institutions to pay for securities without waiting for traditional money transfers to be completed. Blockchain is also expected to enable business models and micropayments that may not be economically feasible under the current financial system where the value of the transaction would be less than the applicable third-party fees for processing, monitoring, recording, and otherwise facilitating transactions. And, although outside the scope of this article, blockchain is being incorporated in a host of other industries to facilitate recordkeeping.
II. OVERSIGHT OF VIRTUAL CURRENCY
It is all but certain that virtual currency will have a major impact on how we do business in the future. And as virtual currency moves into the mainstream, the question is not whether it will be regulated, but how and by whom.
In May 2014, the Chair and Ranking Member of the Senate Committee on Banking, Housing and Urban Affairs sent a letter to the heads of various federal agencies asking for their “perspective on how virtual currencies fit or should fit within the existing regulatory framework.” Letter from Tim Johnson, Chairman, Committee on Banking, Housing, and Urban Affairs, and Mike Crapo, Ranking Member, Committee on Banking, Housing, and Urban Affairs, to Hon. Mary Jo White, Hon. Jacob L. Lew, Hon. Mark P. Wetjen, Hon. Thomas J. Curry, Hon. Martin J. Gruenberg, and Hon. Janet L. Yellen (May 19, 2014). The letter also asked whether each agency has “jurisdiction to supervise or regulate virtual currencies, and what actions, if any, [the] agency has taken or plans to take in this area.” These questions underscore the definitional challenge posed by virtual currencies — because they combine properties of commodities, currency, property, and payment systems, it is not clear who has jurisdiction over the burgeoning industry. Instead of hindering regulation, however, the ambiguity in the classification of virtual currency may actually lead to multiple layers of oversight as various federal agencies vie to establish authority over it.
A. Securities and Exchange Commission (SEC)
Former SEC Chair Mary Jo White has explained that the question of whether virtual currencies are securities is fact-specific, but that “regardless of whether an underlying virtual currency is itself a security, interests issued by entities owning virtual securities or providing returns based on assets such as virtual currencies likely would be securities and therefore subject to our regulation.” Letter from Mary Jo White, Chair, U.S. Sec. and Exch. Comm’n., to Hon. Thomas P. Carper, Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate (August 30, 2013). In this context, the SEC has taken a particularly active role in monitoring and regulating investments in, and purchased with, virtual currency through enforcement actions and the issuance of investment advisory notices and other guidance.
The SEC brought its first enforcement action relating to virtual currency in July 2013, when it filed an action in federal court in Texas against an individual who allegedly ran a Ponzi scheme based on bitcoin-dominated investments. The defendant argued that the relevant investments were not subject to the federal securities laws because bitcoin is not money and not regulated by the United States. The Court disagreed, reasoning that bitcoin does constitute currency or a form of money because it can be “used to purchase goods and services.” Sec. & Exch. Comm’n v. Shavers, No. 4:13-CV-416, 2013 WL 4028182, at *2 (E.D. Tex. Aug. 6, 2013), adhered to on reconsideration, No. 4:13-CV-416, 2014 WL 12622292 (E.D. Tex. Aug. 26, 2014). Furthermore, the Court held that investments purchased with bitcoin fall within the catch-all category of securities known as “investment contracts” — i.e., (i) an investment of money (ii) in a common enterprise; and (iii) with the expectation of profits from the efforts of a promoter or a third party — and are therefore subject to the SEC’s jurisdiction. Shavers, 2013 WL 4028182, at *2 (citing SEC v. W.J. Howey & Co., 328 U.S. 293, 298-99 (1946) (setting forth the standard criteria for what constitutes an “investment contract” under the federal securities laws).
Since Shavers, the SEC has brought numerous other enforcement cases focused on registration failures by operators of virtual currency-related enterprises. See, e.g., In re Erik T. Voorhees, Securities Act Release No. 9592, 2014 WL 2465620 (June 3, 2014) (charging the co-owner of two websites for soliciting investments in offerings of unregistered securities valued in bitcoin); In re BTC Trading, Corp., et al., Securities Act Release No. 9685, 2014 WL 6872955 (Dec. 8, 2014) (sanctioning computer programmer for operating two online platforms that traded securities using virtual currency without registering them as broker-dealers or stock exchanges); In re Sand Hill Exch., et al., Securities Act Release No. 9809 (June 17, 2015) (charging a company that accepted virtual currency in connection with the purchase and sale of complex derivatives products outside the regulatory framework of a national securities exchange and without the required registration statements); SEC v. Renwick Haddow et al., Complaint, Docket No. 1 (S.D.N.Y. June 30, 2017) (filing charges against an individual for fraud and failure to register as a broker-dealer in connection with an online platform that held and traded bitcoin).
In the past year, the SEC has devoted most of its attention on the red-hot ICO market, which has raised more than $4 billion in capital while avoiding much of the regulatory scrutiny and fees traditionally associated with initial public offerings. A twist on initial public offerings, ICOs are a means for blockchain-based businesses to raise funds for new projects by selling digital tokens that confer some value or right to the users — including, in certain cases, the possibility of additional returns based on the success of the underlying project. On July 25, 2017, the SEC released guidance stating that digital tokens offered or sold in ICOs may constitute investment contracts pursuant to the Howey test, thereby requiring the offering to be registered with the SEC and otherwise subject to the federal securities laws. See Release No. 81207, U.S. Sec. and Exch. Comm’n., Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO 2 (July 25, 2017). Since then, the SEC has left no doubt that it is serious about policing ICOs.
First, the SEC has brought three enforcement actions relating to ICOs. See, e.g., Release No. 2017-185, U.S. Sec. and Exch. Comm’n., SEC Exposes Two Initial Coin Offerings Purportedly Backed by Real Estate and Diamonds (Sep. 29, 2017) (federal action against two companies and their owner for ongoing fraudulent conduct relating to two ICOs that sought funds for diamond and real estate investments even though neither company had “any real operations” and could not pay investors any returns); Release No. 2017-219, SEC Emergency Action Halts ICO Scam (Dec. 4, 2017) (federal action against recidivist Quebec securities law violator and his company arising from ICO that raised up to $15 million from thousands of investors in approximately four months by falsely promising a 1,354 % profit in less than 29 days); Release No. 2017-227, Company Halts ICO After SEC Raises Registration Concerns (Dec. 11, 2017) (cease and desist order against company that conducted ICO to fund improvements to restaurant review app and described the way that the offered digital tokens would increase in value as a result of the company’s efforts). Second, the SEC has issued a number of 10-day suspension orders in shares of public companies based on concerns relating to public statements about their virtual currency activities and ICOs. See, e.g., Press Release, SEC Suspends Trading in Three Issuers Claiming Involvement in Cryptocurrency and Blockchain Technology (Feb. 16, 2018), https://www.sec.gov/news/press-release/2018-20.
Third, the SEC has also issued a number of statements reflecting its intent to closely monitor the ICO market. For example, SEC Chairman Jay Clayton “asked the SEC’s Division of Enforcement to continue to police [the] [ICO] area vigorously and recommend enforcement actions against those that conduct initial coin offerings in violation of the federal securities laws.” Statement on Cryptocurrencies and Initial Coin Offerings, https://www.sec.gov/news/public-statement/statement-clayton-2017-12-11 (Dec. 11, 2017). In January, Chairman Clayton reiterated that he has “instructed the SEC staff to be on high alert for approaches to ICOs that may be contrary to the spirit of our securities laws and the professional obligations of the U.S. securities bar.” Opening Remarks at the Securities Regulation Institute, https://www.sec.gov/news/speech/speech-clayton-012218 (Jan. 22, 2018).
The SEC’s increased focus on enforcement within the digital technology industry appears to reflect its view that, as a whole, virtual currency and blockchain will become a key component of the modern marketplace in the future. For example, the SEC has a Distributed Ledger Technology Working Group that is “carefully evaluating when and how [blockchain] technology will be on-boarded with the securities market” and is charged with providing recommendations on how the SEC should provide guidance on existing regulatory requirements. The SEC also indicated that it may consider future rule changes to permit more virtual currency based trading activities as regulated virtual currency markets increase in size. And perhaps most telling, on September 25, 2017, the SEC announced the creation of a Cyber Unit that, among other things, focuses on “violations involving distributed ledger technology [i.e., blockchain] and initial coin offerings.” Release No. 2017-176, U.S. Sec. and Exch. Comm’n., SEC Announces Enforcement Initiatives to Combat Cyber-Based Threats and Protect Retail Investors (Sep. 25, 2017).
B. Commodity Futures Trading Commission
The CFTC has taken the position that virtual currency is a commodity and therefore subject to its oversight under the Commodity Exchange Act (CEA). See In re Coinflip, Inc., et al., CFTC No. 15-29, 2015 WL 5535736 (Sept. 17, 2015). On October 17, 2017, the CFTC released “A Primer on Virtual Currencies,” the first of a series of publications “to help market participants and innovators navigate the FinTech landscape.” The primer explains that “[t]he CFTC’s jurisdiction is implicated when a virtual currency is used in a derivatives contract, or if there is fraud or manipulation involving a virtual currency traded in interstate commerce.” Notably, the primer states that “[t]here is no inconsistency between the SEC’s analysis and the CFTC’s determination that virtual currencies are commodities and that virtual tokens may be commodities or derivatives contracts depending on the particular facts and circumstances.” This leaves open the possibility that certain transactions may be subject to overlapping oversight by the CFTC and SEC. In fact, the SEC and CFTC appear to be cooperating to target perceived misconduct in the virtual currency space. See, e.g., U.S. Sec. and Exch. Comm’n., Joint Statement by SEC and CFTC Enforcement Directors Regarding Virtual Currency Enforcement Actions (Jan. 19, 2018), https://www.sec.gov/news/public-statement/joint-statement-sec-and-cftc-enforcement-directors (issuing joint statement stating that “[t]he Divisions of Enforcement for the SEC and CFTC will continue to address violations and bring actions to stop and prevent fraud in the offer and sale of digital instruments”).
The CFTC has brought several enforcement actions related to virtual currency. In 2015, the CFTC settled with a swap execution facility for failing to enforce prohibitions on wash trading and prearranged trading in a bitcoin swap. See In re TeraExchange, LLC, CFTC No. 15-33, 2015 WL 5658082 (Sept. 24, 2015). Since then, much of the CFTC’s enforcement activity has been related to failures to properly register virtual currency-related businesses. See, e.g., id. (charging Coinflip, an online platform used to facilitate the trading of bitcoin options contracts, for failing to register as a swap execution facility, trading unregulated options, and other violations of the CEA); In re BFXNA Inc., CFTC No. 16-19, 2016 WL 3137612 (June 2, 2016) (charging an online exchange trading platform used to exchange virtual currency for dollars with failure to register as a futures commission merchant and with entering into illegal, off-exchange transactions, in violation of the CEA).
Most recently, the CFTC appears focused on fraud schemes involving virtual currency. See, e.g., Release No. pr7614-17, CFTC Charges Nicholas Gelfman and Gelfman Blueprint, Inc. with Fraudulent Solicitation, Misappropriation, and Issuing False Account Statements in Bitcoin Ponzi Scheme: CFTC Files Its First Anti-Fraud Enforcement Action Involving Bitcoin, (Sept. 21, 2017) (charging two defendants with “fraud, misappropriation, and issuing false account statements” in connection with an alleged bitcoin Ponzi scheme); Release No. pr7674-18, CFTC Charges Colorado Resident Dillon Michael Dean and His Company, The Entrepreneurs Headquarters Limited, with Engaging in a Bitcoin and Binary Options Fraud Scheme, (Jan. 19, 2018) (charging a defendant and UK-registered entity with “engaging in a fraudulent scheme to solicit Bitcoin” and “making Ponzi-style payments to commodity pool participants from other participants’ funds,” among other allegations); Release No. pr7675-18, CFTC Charges Patrick K. McDonnell and His Company CabbageTech, Corp. d/b/a Coin Drop Markets with Engaging in Fraudulent Virtual Currency Scheme, (Jan. 19, 2018) (charging a defendant and corporation with “fraud and misappropriation in connection with purchases and trading of Bitcoin and Litecoin” relating to defendants’ allegedly inducing virtual currency users to send money and coin to the corporation “in exchange for real-time virtual currency trading advice and for virtual currency purchasing and trading on behalf of the customers under McDonnell’s direction”); Release No. pr7678-18, CFTC Charges Randall Crater, Mark Gillespie, and My Big Coin Pay, Inc. with Fraud and Misappropriation in Ongoing Virtual Currency Scam (charging two defendants and a company “with misappropriating over $6 million from customers by, among other things, transferring customer funds into personal bank accounts, and using those funds for personal expenses and the purchase of luxury goods”).
The CFTC has been an especially strong supporter of virtual currency and blockchain even while, like the SEC, it has called for more oversight. For example, in his opening remarks during his recent testimony before the Senate Committee, on Banking, Housing and Urban Affairs, CFTC Chairman J. Christopher Giancarlo noted that “we owe it to this generation to respect their enthusiasm about virtual currencies with a thoughtful and balanced response, not a dismissive one” while urging regulators to “crack down hard on those who try to abuse [such] enthusiasm with fraud and manipulation.” Andrew Nelson, SEC and CFTC Give Testimonies at Senate Hearing on Virtual Currencies, Bitcoin Magazine (Feb. 6, 2018), https://bitcoinmagazine.com/articles/sec-and-cftc-give-testimonies-senate-hearing-virtual-currencies/; see generally Written Testimony of Chairman J. Christopher Giancarlo before the Senate Banking Committee (Feb. 6, 2018) http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo37.
Consistent with Chairman Giancarlo’s embrace of the potential of virtual currency, the CFTC has approved several virtual currency trading platforms. In 2016, just one year after sanctioning the same trading platform for wash trading, the CFTC granted formal registration to an early entrant in the market for bitcoin financial derivatives (TeraExchange). In July 2017, the CFTC approved the first federally regulated bitcoin options exchange platform in the United States (LedgerX LLC). More recently, in December 2017, the CFTC permitted the CME Group Inc. and CBOE Global markets Inc. to start offering bitcoin futures, a move that helped fuel an 80% jump in the spot market. Benjamin Bain, CFTC Warns of Bitcoin-Futures Dangers, After Allowing Them, Bloomberg (Dec. 15, 2017). CFTC Chairman J. Christopher Giancarlo has said that blockchain is in America’s “national interest” and stressed that the country’s regulatory structures need to catch up to developments in the digital economy. The CFTC’s attempts to merge financial innovation with market oversight are encapsulated in an initiative known as LabCFTC, which aims to “provide greater regulator certainty that encourages market-enhancing FinTech innovation” as well as a recently launched dedicated virtual currency resource page.
C. Financial Crimes Enforcement Network (FinCEN)
FinCEN, a federal agency tasked with safeguarding the integrity of the U.S. financial system, has also asserted authority to regulate virtual currency pursuant to its mandate under the Bank Secrecy Act (BSA) to police money laundering. In guidance issued in March 2013, FinCEN asserted that businesses that (i) “exchange . . . virtual currency for real currency, funds, or other virtual currency;” or (ii) issue virtual currency and have the authority to withdraw it from circulation constitute money transmitters under the BSA and therefore are subject to FinCEN’s registration, reporting, and recordkeeping requirements. These include compliance with know your customer regulations, the establishment of in-house anti-money laundering (AML) programs, and the filing of suspicious activity reports. Users of virtual currency – defined as “a person that obtains virtual currency to purchase goods or services” are exempt.
FinCEN’s guidance left open the possibility that (i) individuals that hold virtual currency for investment purposes or (ii) businesses that accept virtual currency as payment could be designated as money transmitters under the BSA. In an advisory ruling in October 2014, FinCEN confirmed that it takes a broad view of the type of activity that falls under its jurisdiction. Specifically, FinCEN concluded that a trading platform (VC Platform) that matched buyers and sellers of virtual currency functioned as a money transmitter, even though the trading platform did not transact directly with either party and served only as facilitating broker. Request for Administrative Ruling on the Application of FinCEN’s Regulations to a Virtual Currency Trading Platform, FIN-2014-R011 (Oct. 27, 2014). FinCEN explained that the “method of funding the transactions is not relevant to the definition of money transmitter” and that the term encapsulates any person that accepts currency (in whatever form) “with the intent and/or effect of transmitting” currency (in whatever form) to another person or location. Id. (emphasis added). As such, any entity that plays a role in the movement of virtual currency from one party to another may be subject to FinCEN’s jurisdiction.
FinCEN filed its first enforcement action against a virtual currency exchange in 2015. In that case, two-year old Ripple Labs paid a civil monetary penalty of $700,000 to settle allegations involving failure to register as a money services business and to maintain an adequate anti-money laundering program. See U.S. Dep’t. Treasury, Financial Crimes Enforcement Network, FinCEN Fines Ripple Labs Inc. in First Civil Enforcement Action Against a Virtual Currency Exchanger (May 5, 2015). Most recently, in July 2017, FinCEN levied a $110 million fine against a foreign-located virtual currency exchange (BTC-e) and a $12 million fine against its owner and operator, Russian national Alexander Vinnik, based on allegations that they willfully violated U.S. AML laws. Among other things, FinCEN alleged that BTC-e and Vinnik failed to obtain required information from customers, processed transactions involving stolen funds, allowed users to openly and explicitly discuss criminal activity, provided advice on how to process and access money obtained from illegal drug sales, and otherwise embraced the pervasive criminal activity conducted on the exchange. U.S. Dep’t. Treasury, Financial Crimes Enforcement Network, FinCEN Fines BTC-e Virtual Currency Exchange $110 Million for Facilitating Ransomware, Dark Net Drug Sales (July 26, 2017). This action leaves no doubt that FinCEN is willing to pursue virtual currency activity that subverts U.S. law, regardless of where the offender is incorporated or domiciled. Notably, criminal charges against BTC-e and Vinnik are pending in a parallel action by the DOJ. Dep’t of Justice, Russian National And Bitcoin Exchange Charged In 21-Count Indictment For Operating Alleged International Money Laundering Scheme And Allegedly Laundering Funds From Hack Of Mt. Gox (July 26, 2017) https://www.justice.gov/usao-ndca/pr/russian-national-and-bitcoin-exchange-charged-21-count-indictment-operating-alleged.
D. Internal Revenue Service (“IRS”)
The IRS has a particular interest in virtual currency given its parallels to traditional tax haven jurisdictions, such as the degree of anonymity afforded to users and the fact that certain transactions are not required to be reported to the IRS. See, e.g., Saleha Mohsin, Mnuchin Warns Against Bitcoin Becoming the Next ‘Swiss Bank Account,’ Bloomberg (Jan. 12, 2018) https://www.bloomberg.com/news/articles/2018-01-12/mnuchin-warns-against-bitcoin-becoming-next-swiss-bank-account (noting Mnuchin’s remarks that, under U.S. law, “if you have a wallet to own bitcoins, that company has the same obligation as a bank to know [you as a customer] . . . We can track those activities. The rest of the world doesn’t have that, so one of the things we will be working very closely with the G-20 is making sure that this doesn’t become the Swiss bank account”). In March 2014, the IRS issued guidance stating that virtual currency will be classified as “property” for federal tax purposes, thus requiring, among other things, that wages paid in virtual currency be reported on W-2s and subject to federal income and payroll taxes. See Internal Revenue Service, IRS Virtual Currency Guidance, Internal Revenue Bulletin: 2014-16 (Apr. 14, 2014). Property is taxed at the capital gains rates, and is not subject to any de minimis exemption for personal use. As a result, taxes are triggered whenever a user purchases anything using virtual currency that has grown in value since the user first acquired it – even a pack of gum. In this context, the IRS guidance requires virtual currency users to keep track of gains and losses on even the most trivial transactions for tax reporting.
Perhaps due to the practical challenges of compliance, the IRS has been relatively lax in enforcing its own guidance. In September 2016, the Treasury Inspector General for Tax Administration issued an audit report critiquing the IRS’s efforts to date and recommending that the IRS implement certain measures to ensure that virtual currency use complies with U.S. tax laws. As the Use of Virtual Currencies in Taxable Transactions Becomes More Common, Additional Actions are Needed to Ensure Taxpayer Compliance, Reference No. 2016-30-083 (Sept. 21, 2016). Since then, the IRS has demonstrated an increased interest in overseeing virtual currency use. For example, in November 2016, the IRS served a John Doe summons on the currency exchange Coinbase seeking records of U.S. users who bought and sold bitcoins between 2013 - 2015. See Press Release, U.S. Dep’t. Justice, Court Authorizes Service of John Doe Summons Seeking the Identities of U.S. Taxpayers Who Have Used Virtual Currency (Nov. 30, 2016). After a legal challenge brought by anonymous users of Coinbase, as well as pushback from Coinbase itself and members of the House Ways and Means Committee, the IRS narrowed the scope of its investigation and told a federal court in July 2017 that it would seek information only for those accounts that engaged in transactions of $20,000 or more. On November 28, 2017, the court issued an order granting a petition seeking to enforce the John Doe summons, requiring the provision of documents and information for more than 14,000 Coinbase users. The lawsuit suggests that the IRS will exercise greater oversight over virtual currency use.
The rapid expansion of virtual currency is likely to have a substantial impact on the way that businesses and individuals transact in the future. Market participants should pay close attention to regulatory developments to make sure that they are up to date on changes that may impact their business activities.