Every Friday, Law Decoded delivers analysis on the week’s critical stories in the realms of policy, regulation and law.
Technology is by and large not the major barrier — though many in the industry have a decent bit of hubris about it. More important is that people, whenever their money is on the line, get mighty conservative. Which is not necessarily greedy or unreasonable, but it is why it was easier for lawmakers to greenlight email than electronic signatures.
Conservatism surrounding money also means that old systems have to fail in a pretty conspicuous fashion for anyone to seriously talk about reforming or even discarding them. Think about how grotesque the subprime mortgage bubble of 2008 looked as regulators and news outlets dug through its wreckage in subsequent years: That’s what it took for Dodd-Frank to pass into law.
The whole Robinhood turbulence at the end of last month is not in the same league. But any casual observer, uncontaminated by the MBA jargon that exists to justify such shenanigans, can look at the events surrounding GME trading and know that these markets are not as free as we might imagine. And maybe it’s for that reason that we’ve spent so much time talking about it, because it’s an intro to standing problems in securities trading that is interesting enough to teach a whole generation of casual observers what short-selling is.
The thing is, the stock market is not going anywhere. But everyone sees in this eye-catching crisis an occasion to petition for what they want. For the blockchain community, it’s been an opportunity to consider how you can disintermediate securities trading or even facilitate same-day settlement of trades — securities tokens in other words. Others have, however, used it as an opportunity to disown classic securities altogether. But, more low-profile than the Robinhood affair, this week has seen a number of developments that bring crypto into securities markets and securities markets onto blockchains.
DLT for Israeli securities
Israel’s securities regulator approved Simetria’s digital bulletin board for advertising tech offerings, a step on the way to the start-up’s planned DLT securities exchange.
Simetria aims to provide a platform for other Israeli start-ups to issue private equity to international investors in a streamlined fashion. They expect to launch in May.
Relative to its population, Israel has one of the liveliest tech ecosystems in the world. Simetria’s application builds on the country’s Ministry of Finance’s declaration of interest in new trading platforms that operate in more niche markets than the Tel Aviv stock exchange. Simetria, however, is looking to focus on institutional investors, keeping the securities token market away from public offerings for yet another day.
Despite the promise of peer-to-peer securities trading for the public, the biggest impact has been restricted to private platforms. Platforms that have focused on retail investors have been plagued with low volumes and, frankly, unattractive offerings. There is hope that, as more of these private platforms crop up around the world, they will produce a network that can build into public offerings that will, ultimately, break down the siloed operations of the individual public platforms. For now, however, the most exciting offerings are limited to institutions.
For years now, the prospect of tokenizing traditional securities markets has been one of the crypto world’s core promises for how blockchain would revolutionize legacy finance. It’s been what you might call a long time coming.
Oh sorry, did you want to hear about that Robinhood hearing yesterday? The full House Financial Services Committee gathered virtually to yell at the CEOs involved in the GME flurry last month.
I don’t like writing much about these hearings, as I don’t want to give them that much weight. They are generally full of sound and signaling, legislating nothing. But the range of reactions may actually signify something about tomorrow and tomorrow and tomorrow. As they say.
Democrats largely wavered on their earlier calls to end naked short-selling by hedge funds, though Melvin Capital’s CEO swore up-and-down that his firm did not, and could not, engage in naked short-selling at all. Democrats remained, however, quite hostile to Robinhood’s shortcomings in collateral — which, if they were as bad as they look, may well end up being the subject of an SEC action. A broadly bipartisan question was the wisdom of providing options and margin trading to retail investors.
Republicans were, per tradition, more sympathetic to the financiers. In addition to advocating for expanded access to “accredited investor” labeling, the idea of day-of — or T-0 — settlement loomed large. Robinhood’s Tenev definitely leaned on a T-0 solution as a way of evading blame. As a technological development, T-0 seems to depend upon new digitization of the U.S. dollar in addition to securities. While this is unlikely to happen in the near future, this is an area where blockchain lays a persuasive claim to being the best solution to both issues.
Ever-tightening circle of sanctions compliance
The U.S. Treasury’s Office of Foreign Asset Control announced fines on BitPay for providing services to users in sanctioned countries.
The settlement is remarkably similar to one that OFAC reached with BitGo at the end of December. Both attribute the services provided to negligence rather than active sanctions evasion. Helping the cases of both was that the dollar amounts of transactions in sanctioned areas were fairly low, and OFAC accused neither of servicing specially designated nationals. Consequently, the fines have been fairly limited.
Nonetheless, these settlements are shots across the bow for the crypto industry. OFAC is saying that it’s watching. And while it took a few years to actually get around to finding the activity, that suggests that it’s digging through the past with the latest technological tools.
The issue with sanctions is that the compliance regime necessary to identify user IP addresses by location and avoid any interaction with a sanctioned geographical region is pretty hard to square with most crypto practices. For contrast, the Treasury’s FinCEN office enforces money laundering regimes, which is more merciful — if your practices are sound, laundering can still happen on your platform and you’re not necessarily liable. Sanctions violations work on the standard of strict liability, which means that OFAC can come for any amount.
In practice, OFAC is working with limited resources and, despite its best efforts, has not yet reached omniscience. But there are hundreds of millions of people living in sanctioned countries, many of whom are particularly keen on crypto as those sanctions and local capital controls have ravaged their respective currencies. So OFAC’s advancing interest in the field is worth looking out for.
For the Atlantic Council, Josh Lipsky outlines Treasury Secretary Janet Yellen’s role in bringing a digital dollar to market.
Attorney Peter Connors writes on new FinCEN requirements for disclosing foreign cryptocurrency accounts.
More commentary on the implications for crypto of Biden’s nominee to chair the SEC comes from Scott Kimpel.
Bitcoin nerves, Tesla told to dump crypto, NFT madness
Coming every Saturday, Hodler’s Digest will help you track every single important news story that happened this week. The best (and worst) quotes, adoption and regulation highlights, leading coins, predictions and much more — a week on Cointelegraph in one link.
Top Stories This Week
Bitcoin traders worry as price remains pinned below $50,000
After reaching lows of $43,500 last Sunday, Bitcoin staged a comeback, managing to hit $52,000 on Wednesday. There was optimism that the correction was over and that BTC would now have the chance to return to all-time highs.
Alas, the best-laid plans of mice and men often go awry. Fast forward to this weekend, and Bitcoin is once again struggling to break above $50,000 — a psychologically important milestone. Now, the nerves are starting to set in.
A drop below recent lows of $46,000 could open the door to further downward movement, endangering a bull run that’s been in place for almost a year… at least in the short term. Pseudonymous trader Rekt Capital believes BTC could bottom between $38,000 and $45,000 if this level fails to hold.
Traders are now beginning to speculate that Bitcoin may continue to trade sideways for now. A gloomy macroeconomic picture dominated by rising bond yields and a pullback in tech stocks certainly isn’t helping matters.
Then again, there’s always a metric that shrugs off the gloom… suggesting everything is fine. Glassnode’s Reserve Risk indicator suggests that BTC’s rally is still in the early to middle stage — even after this week’s pullback. Great. Nothing to worry about, then.
Analyst tells Tesla to dump Bitcoin for buybacks as shares plunge
Tesla is now coming under pressure to sell off the $1.5 billion it holds in Bitcoin. Since the electric vehicle maker announced its crypto buy-in, TSLA shares have fallen by a stomach-churning 30.8%.
Gary Black, the former CEO of Aegon Asset Management, tweeted that Tesla would generate “positive momentum” if it bows out of crypto, adding: “Highly unlikely, but shareholders would be very supportive.”
Bitcoin’s price correction has also been hurting MicroStrategy — the business intelligence firm that owns more than 91,000 BTC. MSTR’s share price has tumbled by 52.8% in less than a month.
The company doesn’t seem too worried, though. MicroStrategy bought another 205 BTC this week in a $10-million spending spree that coincided with the latest dip.
While the software company began putting its existing assets into BTC in 2020, back when Bitcoin traded at about $10,000, its latest purchases have yet to break even.
Kings of Leon is releasing an album as an NFT
Buckle yourselves in… we’ve got so much NFT news to get through. One of the more attention-grabbing headlines this week came when Kings of Leon announced it is releasing its eighth album in the form of a nonfungible token.
Three types of NFTs are on offer, with the rarest offering front-row seats to Kings of Leon concerts for life, a personal driver and the chance to hang out with the band before shows.
Frenzied activity in the NFT sector doesn’t end here. The rarest Pepe of them all — “Homer Pepe” — went under the hammer for 205 ETH this week… that’s worth $323,000 at the time of writing. Meanwhile, an NFT made up of 100 individual pieces from 100 different artists sold out within minutes on Rarible.
Aavegotchis — NFTs inspired by the Tamagotchi devices that were oh so trendy in the late 1990s and early 2000s — were snapped up in under a minute. And as sales on NBA Top Shot continue to go through the roof, the executive chairman of the sports merchandise company Fanatics, Michael Rubin, said: “It’s almost a frenzy happening right now.”
If all of this wasn’t crazy enough, an original artwork by Banksy has been burned and turned into an NFT. Ironically, the piece is called “Morons” and depicts buyers at an art auction bidding on a piece emblazoned with the words “I can’t believe you morons actually buy this shit.”
Tether hit with 500 BTC ransom demand, but says it won’t pay
Still dusting itself off after a showdown with the New York Attorney General, Tether is really struggling to catch a break right now.
This week, hackers threatened to release sensitive company documents that supposedly belonged to Tether… unless they were paid a 500-BTC ransom — a staggering sum worth $23.8 million at the time.
Tether announced what was happening on Twitter and declared: “We are not paying.”
The deadline has now passed, but what remains unclear is whether the extortionists are attempting a simple cash grab, or whether it’s all part of a greater effort to undermine Tether and the rest of the Bitcoin ecosystem.
“Either way, those seeking to harm Tether are getting increasingly desperate,” the company added.
No crypto ban in India: Finance minister predicts “very calibrated” stance
There’s been another dramatic twist in the “will they, won’t they” saga of India’s planned crypto ban.
On Saturday, Indian Finance Minister Nirmala Sitharaman said reports that the government is pursuing a blanket ban on cryptocurrencies are overstated. She stressed that regulations won’t be as “severe” as previously reported and that the authorities were determined to take a “very calibrated” stance.
The comments will no doubt come as a relief for crypto businesses and investors in the world’s second-most populous country following years of uncertainty.
At one point, India was considering introducing jail terms of up to 10 years for anyone caught dealing in cryptocurrencies — along with a hefty fine. The country’s central bank also introduced a ban that stopped banks from offering services to crypto businesses, causing several to collapse. Those restrictions were sensationally overturned by the Supreme Court last year.
Sitharaman’s latest remarks are at odds with a Bloomberg report last month that claimed crypto assets would soon be completely banned in India.
Winners and Losers
At the end of the week, Bitcoin is at $48,445.86, Ether at $1,607.45 and XRP at $0.46. The total market cap is at $1,484,740,419,357.
Among the biggest 100 cryptocurrencies, the top three altcoin gainers of the week are Chiliz, Enjin Coin and Flow. The top three altcoin losers of the week are Cardano, 1inch and Stellar.
For more info on crypto prices, make sure to read Cointelegraph’s market analysis.
Most Memorable Quotations
“You should look for relative strength when others are weak. Global macro sold off yesterday and BTC did not give a donkey.”
Kyle Davies, Three Arrows Capital co-founder
“Bitcoin is holding up against the macro spectacularly well.”
Lex Moskovski, Moskovski Capital CEO
“The fact that Bitcoin continues to show strength even with GBTC acting like a resistance band holding it back is very encouraging and shows to me that the overall story, that of accelerating adoption, is still intact.”
Chad Steinglass, CrossTower head of trading
“I think there’s going to be tremendous value created, but also there’s so many people getting into it, I don’t think everyone’s going to be successful.”
Michael Rubin, Fanatics executive chairman
“It’s early stages, but in the future, I think this will be how people release their tracks: When they sell a 100,000 at a dollar each, then they just made $100,000.”
Josh Katz, Yellowheart CEO
“I think Reed Hastings is a very innovative guy and has a lot of creative thinking, and I think he still controls the reins at Netflix, and so I think that might be the next big one to fall.”
Tim Draper, serial investor
“What we are seeing built with crypto today is just proof of concept. As tech continues to get better/cheaper/faster there will be new applications and maybe even something that supersedes what we know as crypto today.”
Mark Cuban, billionaire
“I see HOMERPEPE as the most important NFT in art history because its headline-making sale in 2018 influenced so many of the original crypto artists to believe we could put our art to work building both a market and belief around this new technology.”
Matt Kane, artist
“Is Bitcoin a currency? Property? An asset? Maybe all of the above, I’m going in with a 3% portfolio allocation.”
Kevin O’Leary, Shark Tank investor
“Bitcoin has returned almost 200% (so nearly tripled your money), every single year for 10 years, *compounded*.”
“We’re sending a clear message to the entire industry that you either play by the rules or we will shut you down.”
Letitia James, New York Attorney General
“Those seeking to harm Tether are getting increasingly desperate.”
“There are a host of risks and obstacles that stand in the way of Bitcoin progress. But weighing these potential hurdles against the opportunities leads to the conclusion that Bitcoin is at a tipping point.”
Prediction of the Week
Bitcoin price is going to “infinity” — Kraken CEO
Hodler’s Digest has been home to some pretty sky-high Bitcoin price predictions over the years — $500,000 here, $1 million there. Determined not to be outdone, Kraken’s CEO has gone nuclear… predicting that BTC will be worth “infinity.”
Jesse Powell believes that, one day, humanity will simply give up pricing Bitcoin in U.S. dollars — telling Bloomberg that a $1-million price tag in 10 years’ time is reasonable.
Research from the company he runs is perhaps a little more realistic. Kraken’s latest analysis suggests Bitcoin could next top out somewhere between $75,000 and $306,000.
FUD of the Week
BitMEX’s Arthur Hayes and Ben Delo negotiate surrender to U.S. authorities
The former CEO of the crypto derivatives exchange BitMEX is in negotiations to surrender to U.S. authorities next month.
Arthur Hayes and fellow executives are accused of violating the Bank Secrecy Act by the U.S. Department of Justice and the Commodity Futures Trading Commission.
Transcripts from a virtual court hearing suggest he’s going to surrender to the U.S. in Hawaii on April 6 — six months after he went on the run.
McAfee faces crypto-related fraud charges from NY court
Criminal charges are piling up for John McAfee. The crypto advocate and internet security pioneer has now been accused of fraud and money laundering conspiracy crimes. Allegations relate two schemes where cryptocurrencies were “fraudulently promoted” to investors.
Prior to today’s news, McAfee already faced charges from U.S. governing bodies for tax evasion and initial coin offerings that he allegedly advertised for compensation without properly informing the public.
After going on the run from the U.S. government in 2019, McAfee was arrested in Spain in October 2020.
Dev says $31 million Meerkat Finance exploit was a “test” and funds will be returned
Alarm bells rang this week when Meerkat Finance, a decentralized finance protocol based on Binance Smart Chain, lost BNB worth $31 million — hours after it had launched.
The team initially claimed it had been the victim of an exploit but then deleted all its social media channels. Due to the nature of the breach, some believe that a “rugpull” scam had taken place.
But there might be some good news on the horizon for the victims of the exploit, which is one of the largest in DeFi’s short history. A Meerkat Finance developer posted in a newly created Telegram channel and revealed the exploit was a “trial” testing users’ greed and “subjectivity” — adding that the team was preparing to refund all victims.
Best Cointelegraph Features
DeFi who? NFTs are the new hot stars on the crypto block
NFTs are taking over from where DeFi left off, and data suggests asset tokenization will dominate 2021.
Crypto Pepes: What does the frog meme?
Cointelegraph Magazine talks to BarnBridge founder Tyler Ward, who has inadvertently created a Pepe the Frog NFT meme craze.
Pricing the hype: Crypto companies valued at billions as market booms
Crunching the numbers: Analysts and industry experts weigh in on crypto firms like Coinbase and Kraken being valued in the billions.
Finance Minister predicts “very calibrated” stance
Yet another “crypto ban” turns out to be temporary FUD.
In an interview with CNBC this morning, Indian Finance Minister Nirmala Sitharaman said that reports of a blanket ban on cryptocurrencies are overstated. While negotiations are ongoing, she said she expects the end result to be more tempered:
“Yes, a lot of negotiations, discussions are happening, with Reserve Bank,” said Sitharaman. “Obviously the Reserve Bank will be taking a quorum on how, what kind of unofficial currency, cryptocurrency will have to be planned, and how it has to be regulated. But also, we want to make sure that there’s a window available for all kinds of experiments which will have to take place in the crypto world.”
She went on to say that regulations won’t be as “severe” as have been previously reported. Authorities will “look inward” and take a “very calibrated” stance, in contrast to the “mixed messages coming in from across the world.”
“The world is moving fast with technology. We can’t pretend that we don’t want it. […] I can only give you this clue: that we are not closing our minds, we are certainly looking at ways in which experimentations can happen in the digital world, in cryptocurrency and so on.”
— BlockchainedIndia (@blockchainedind) March 6, 2021
The comments from Sitharaman is no doubt a source of relief for crypto businesses, users, and hodlers in the world’s second most populous country. Earlier this month, a report from Bloomberg citing a senior Indian financial minister said that the country would be banning all cryptocurrencies.
The hypothetical ban drew widespread criticism from across the crypto community, with some likening it to an attempt to ban the Internet. Some companies found the reports to be hot air, however, and continued on with developments apace.
Closing remarks on the future of crypto law, March 5
Ladies and gentlemen, it is bittersweet to welcome you to the final installment of Law Decoded, at least with yours truly at the helm. Though someone may pick this newsletter back up at some point, there are no plans to do so now.
Taking advantage of the rose-tinted glasses or maybe the graduation goggles that are in effect for this final newsletter, I will be shaking up the format. As last week’s Law Decoded focused on a few long-standing stories in crypto, this week, I wanted to get thematic.
As I will no longer be guiding you through the weekly changes in crypto law, I wanted to give you some idea of how I see the overall situation shaping up. There are plenty of major laws in motion and courts in session, but I’m going to be zooming back from those to present you with what I find to be the three issues to watch in crypto law. These are also predictions and opinions, so bear in mind that they are mine, not those of Cointelegraph as a whole. And, as always with the future, I could very well be wrong.
Certainty and securities
Prediction: The role of securities regulators, especially the U.S. Securities and Exchange will continue to determine the fate of new token issuance. And, it may take a while, but the SEC and other securities regulators are going to start kicking back at some but not all DeFi projects, as soon as they can figure out how.
Situation: High-profile legal actions against firms like Telegram, block.one and Ripple has scared many would-be token issuers out of the market. Less dramatic than these clampdowns have been the quiet tentative successes. Developers like the Filecoin Foundation and Blockstack seem to have found ways of not only raising money to develop tokens according to SEC exemptions but also of decentralizing those tokens to the point where the SEC has, for now, not stepped in when those firms stopped filing registration statements for those tokens.
Formalizing the process of token decentralization will help new developers enormously, whether it is by classifying tokens in statute or adopting a safe harbor à la Hester Peirce. Likely incumbent chairman Gary Gensler will not indulge securities issuance masquerading as decentralized tokens. We will not see another 2017. Optimistically, however, Gensler is clearly interested in formalizing the market, which means clear rules of the road.
Meanwhile, publicly traded companies like Square, Tesla and Microstrategy are increasingly becoming oblique means for stock market investors to get exposure to Bitcoin’s price movements. BTC ETFs in Canada and vast market interest in the U.S. mean that it’s only a matter of time before the SEC greenlights one in the U.S. Slowly but surely, tokenization of securities continues.
As for DeFi? The commission is going to be hashing that out for years. I predict with low confidence and the hope of being wrong that there will be attempts to hold programmers legally accountable for DeFi code.
The wealth of CBDCs
Prediction: Central bank digital currencies are going to move forward. Some will launch more quickly, but the ones that have actual significance as peer-to-peer payment mechanisms will take significantly more time, if they ever happen at all. Distributed ledger technology will need to do some serious upgrading if it’s going to play any role in this transformation, which I am not confident it will.
Situation: CBDCs had been mostly on the back-burner for some time. To crypto advocates, they were a hypothetical use case. To monetary authorities: unnecessary techie mumbo jumbo. Interest waxed and waned at various points, with the involvement of tech giants in digital payments adding brief moments of pressure to central banks to update old systems. But those moments would fade.
The COVID-19 pandemic, however, exposed the flimsiness of existing payment rails in a way that everyone could see. The need to get money into the hands of citizens alongside the sudden fear of spreading disease via in-person contact and, especially, the contaminant of cash pushed the CBDC concept to the top of the agenda for many of the world’s largest central banks.
CBDC development is going to remain a critical subject of conversation and development for the foreseeable future. It is, however, riddled with misconceptions and unconfirmed assumptions. None of the five great monetary powers — the issuers of the dollar, the euro, the yen, the yuan and the pound — have committed to specific features of their prospective digitization, nor even whether they will launch at all. Will CBDCs be bearer instruments? How anonymous will they be? Where will transaction data go? Will they be accessible to banks, businesses, citizens, or the world? Will they run on distributed ledger technology?
People are touchy to any changes to their money. If true self-settling currency ever hits the market, it will do so slowly. Of those five major currencies, the Chinese yuan has seen the most “digitization,” which has attracted the crypto world’s attention. But to all appearances, that currency bears none of the hallmarks of what the crypto world professes to want to see. The digital yuan seems designed to be just another third-party payment app except that the Chinese government is that third party.
CBDCs will be an interesting trend to watch in coming years. But don’t hold your breath. The public’s memory of not getting their checks for months will fade as the pandemic subsides. Along with it, so will broad political pressure.
All about AML
Prediction: Smart anti-money laundering rules are good for the world. The next few years of AML may not be good for crypto. The biggest economies have either tried to ban crypto entirely or have made major strides in deputizing fiat gateways — namely exchanges. The crypto industry has largely accepted this. But coming rules are going to get more intrusive.
Situation: In its much-repeated origin story, Bitcoin emerged when the global financial system was unraveling. Satoshi’s timing in pushing a means of moving power away from monetary authorities and financiers alike was perfect.
On the flip side, the subsequent decade saw a surge of attention on all of the devilish ways the powerful and corrupt have squirrelled away illicit gains all over the world, using financial instruments. The 2010s saw successive waves of mass leaks of dirty finance and offshoring — and this was after the U.S.’s “War on Terror” had expanded authority to pursue financial flows in the name of countering terror financing.
In response to, say, the Panama Papers, the public rightly reacted with outrage. Policymakers rightly set out to cut down on interjurisdictional money laundering. And crypto got rolled into these massive policy shifts and legislative packages, despite never coming close to UBS or Mossack Fonseca or Vancouver’s real estate market as a vehicle for money laundering.
But while it is not fair to slur Bitcoin as a money laundering mechanism, it’s obvious that lack of KYC has been extremely lucrative for a number of not-good actors in the crypto world. This is especially true of exchanges. It was the Paradise Papers that exposed that BitFinex and Tether are run by the same people, a fact they would clearly prefer to have kept hidden. It was only as Malta was trying to get its corporate registry in line with EU expectations that it outed Binance for lying about its registration on the island. Which is not even to mention how reckless the executives at BitMEX were.
As the EU rolls out AMLD5, and the U.S. starts demanding owner names for firms registered anonymously, the crypto world has already shifted its party line. Fewer and fewer industry voices are arguing in favor of fully law-agnostic Bitcoin, likely because many of these big players and, especially, exchanges profit by replicating the sins of the traditional financial world. Speaking in generalities, the consensus has been to center legal responsibilities like know-your-customer on fiat gateways. Which is what the Financial Action Task Force is already asking for, so in some ways this is just accepting the inevitable.
As governments have gotten more comfortable with managing exchanges, there have been pushes to go further. Most famous is the U.S. Treasury’s attempt to get info on transactions between exchanges and self-hosted wallets. Those rules are still in process and, pessimistically, some are going to stick.
I don’t foresee governments having any power over fully peer-to-peer transactions on, say, the Bitcoin network unless there has been some major operator error on the part of the wallet owner. But, pessimistically, I can envision a world of whitelists and blacklists, where it gets harder and harder to move between fiat and crypto without giving up all kinds of personal identifying information along the way. It’s not what I would call likely, at least not for several years, but it’s not impossible.
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