What’s Next for Crypto Regulation

The Treasury: Riled up about reporting

This week, the Treasury Department’s Financial Crimes Enforcement Network, known as FinCEN, extended by 60 days the comment period for proposed reporting rules on digital wallet transactions that it says would prevent money laundering. First announced on Dec. 23, with a 15-day comment period, the move incited outrage in the crypto community. The regulator has twice relented, noting the “robust” engagement that came after what opponents called “midnight rulemaking” by Steven Mnuchin, the secretary of the Treasury at the time.

It showed the crypto industry could force a pivot by a powerful agency. They argue that the proposed disclosure and record-keeping requirements are “arbitrary and unjustified,” as Jack Dorsey of Twitter and Square wrote in a comment letter:

The incongruity between the treatment of cash and cryptocurrency under FinCEN’s proposal will inhibit adoption of cryptocurrency and invade the privacy of individuals. Yet, the rule fails to explain the difference in risk.

The procedural win doesn’t guarantee that the new secretary of the Treasury, Janet Yellen, will shift gears on the matter. At her confirmation hearing, she suggested that many cryptocurrency transactions were associated with illicit activity, which Ms. Smith of the Blockchain Association called “a very disappointing reaction.” In written testimony released later, Ms. Yellen offered a more nuanced take, saying regulators should “look closely at how to encourage their use for legitimate activities while curtailing their use for malign and illegal activities.”

The C.F.T.C.: Act fast

Chris Brummer, a professor at Georgetown Law and a “fintech guru,” is in the running to become the next commissioner of the C.F.T.C. Picked for the same gig in 2016, his nomination was withdrawn by the Trump administration. Since then, Mr. Brummer has testified before Congress on blockchain policy, edited an online journal and book on crypto assets, and written a textbook, “Fintech Law in a Nutshell.” He’s an expert, in other words.

Whoever takes over, “knowledge can’t fill the major regulatory gaps,” Mr. Massad, of Harvard, said. In his view, however crypto savvy the next financial regulators are, they can’t solve the problems that are raised by new technologies without a comprehensive law designed for digital assets. Otherwise, too much crypto activity will be left unregulated for too long.

A case in point, perhaps, is the civil enforcement action filed in the fall by the C.F.T.C., accusing BitMEX, a cryptocurrency exchange, of operating an unregistered trading platform selling crypto derivatives. It is accused of facilitating transactions that earned more than $1 billion in fees since 2014 without “the most basic compliance procedures.” BitMEX owes a reply next month. In a companion criminal case, the Department of Justice contends that BitMEX execs deliberately flouted anti-money laundering rules.