Benjamin Sauter and Jake Chervinsky of Kobre & Kim LLP are litigators and government enforcement defense attorneys who specialize in disputes and investigations related to digital assets. This article is not intended to provide legal advice.
As we enter the second year of this so-called “crypto winter,” the stablecoin market is hotter than ever.
In recent months, stablecoins – digital assets pegged to the value of fiat currencies like the U.S. dollar – have exploded in size and variety thanks to high-profile offerings from companies like Circle, Paxos and Gemini. Even traditional banks are joining the action, with JP Morgan recently announcing its own stablecoin-like product called JPM Coin.
Thus far, stablecoins have largely avoided public scrutiny and criticism from agencies like the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC), which have focused their attention on the many issues arising out of the 2017 initial coin offering bubble instead. Yet, as stablecoins see greater capital inflows and industry adoption, the SEC and CFTC will likely take a harder look at their compliance status.
Unfortunately for stablecoin proponents, agencies like the SEC and CFTC are often quick to assert their jurisdiction over new financial innovations, even if their intervention may not serve the best interests of an emerging industry.
Stablecoins promise many of the same benefits as other cryptocurrencies – like cheap transactions and rapid settlement – without the price volatility typically found in the crypto markets. Through that combination, stablecoins could satisfy the demand for high-quality fiat currencies in parts of the world with limited access to the global financial system, like Iran or Venezuela.
Stablecoins also could be useful for crypto exchanges that want to offer fiat-based trading pairs while reducing their engagement with legacy financial institutions.
To maintain their one-to-one peg with fiat currencies, most stablecoins use either a fiat-collateralized, crypto-collateralized, or algorithmic model. Fiat-collateralized stablecoins are backed by actual fiat currencies held in reserve by the stablecoins’ issuers, whereas crypto-collateralized stablecoins are backed by digital assets locked in smart contracts.
Algorithmic stablecoins, by contrast, aren’t backed by collateral at all. Instead, they use various mechanisms to expand or contract their circulating supply as necessary to maintain a stable value.
It was this type of stablecoin that apparently caught the SEC’s attention last year.
A basis for concern
In April 2018, an algorithmic stablecoin project called Basis made headlines when it raised $133 million from several prominent funds and venture firms. But, only eight months later, Basis shut down unexpectedly and returned its remaining capital to investors. The reason for the shuttering, according to Basis CEO Nader Al-Naji: “We met with the SEC to clarify a lot of our thinking [and] got the impression that we would not be able to avoid securities classification.”
It’s not hard to see why the SEC might view Basis through the lens of a securities offering.
The Basis protocol was designed to maintain stability by auctioning “bond” and “share” tokens to investors who would profit as long as Basis held its peg. Tokens like these could qualify as “investment contracts” under U.S. law, and thus may fall within the definition of a security. Apparently, the Basis team decided that the regulatory requirements imposed by that classification were too onerous to overcome.
Despite Basis’ startling end, there hasn’t been much discussion in the crypto industry about how U.S. securities and commodities laws might apply to stablecoins.
In fact, most industry players seem to take for granted that fiat-collateralized stablecoins are safe from regulatory scrutiny. That assumption may prove dangerous.
Stablecoin regulation under federal law
Most dollar-backed stablecoins are created in roughly the same way: purchasers deposit dollars with a stablecoin issuer, and in exchange, the issuer mints and returns an equivalent amount of the stablecoin. The process also works in reverse: stablecoin-holders can send a stablecoin back to its issuer in exchange for an equivalent amount of dollars.
Given how these stablecoins are redeemed, the SEC might characterize them as “demand notes,” which are traditionally defined as two-party negotiable instruments obligating a debtor to pay the noteholder at any time upon request.
According to the Supreme Court’s 1990 decision in Reves v. Ernst & Young, demand notes are presumed to be securities under Exchange Act Section 3(a)(10) unless an exception or exclusion applies.
For its part, the CFTC might take the position that stablecoins are “swaps” under Commodity Exchange Act Section 1(a)(47)(A). That provision defines swap to include an “option of any kind that is for the purchase or sale, or based on the value, of 1 or more interest or other rates, currencies, commodities, or other financial or economic interests or property of any kind.”
Under that definition, the CFTC might characterize stablecoins as options for the purchase of, or based on the value of, fiat currencies.
Of course, individuals and companies dealing with stablecoins will have good arguments as to why the “demand note” and “swap” classifications shouldn’t apply. For example, issuers could invoke the Reves court’s “family resemblance” test for demand notes, or challenge the CFTC’s jurisdiction over retail foreign currency options, depending on the circumstances. The regulators, however, may take a different view.
What could this mean for stablecoins?
If stablecoins are classified as regulated securities or swaps, there could be serious consequences for a large segment of the crypto industry. For example, stablecoin issuers might have to register their offerings and comply with all the ensuing regulatory requirements. Similarly, a company or fund that conducts or facilitates stablecoin transactions might have to register as a broker-dealer.
Plus, the SEC and CFTC aren’t the only regulators that may take an interest in stablecoins.
Only time will tell how other state and federal entities, such as the New York Department of Financial Services (NYDFS) or the Financial Crimes Enforcement Network (FinCEN), will approach the regulation of stablecoins, particularly if they’re used to evade trade sanctions or other transaction reporting obligations.
For now, it’s clear that anyone who issues or uses stablecoins should give considerable thought to their potential risk under U.S. securities and commodities laws.
U.S. Capitol building image via Shutterstock
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What Indonesia Reveals About Facebook’s Libra Plan
Facebook published plans for the Libra cryptocurrency in seven languages, including Indonesia’s Bahasa – a move that offers perhaps the clearest glimpse of what Facebook’s fintech ascent might look like.
“Indonesia has the fourth-highest number of Facebook users in the world,” Pang Xue Kai, co-founder of the Indonesian crypto exchange Tokocrypto, told CoinDesk. “If Facebook’s Libra can address the [local] issues, it has the potential to succeed.”
According to the annual media report released by We Are Social and Hootsuite, Indonesia has the world’s highest rate of Facebook post engagement among internet users, over 4 percent, and the highest frequency of online shopping, with 86 percent of Indonesian survey respondents saying they bought something online in the past month.
Since nearly 10 percent of Indonesian respondents said they also own some cryptocurrency, double American percentage, Facebook couldn’t have dreamed up a better market for Libra.
QCP Capital co-founder Joshua Ho, a trader who works closely with Indonesian exchange Tokocrypto, told CoinDesk Facebook’s Libra ecosystem could be a “gamechanger” in Indonesia.
“People are already very aligned with mobile payments,” Ho said. “It is geographically decentralized. Creating banking access is a huge challenge.”
Since the Asian financial crisis in 1997, which sparked rampant inflation, economic recession and political turmoil in Indonesia, Ho said cryptocurrency offers an attractive alternative to fiat currencies and banks the population still distrusts.
Add all this to the World Bank’s estimate that Indonesia is a collection of islands with one of the world’s largest unbanked populations, 97 million adults as of 2017, and it’s clear why Facebook prioritized publishing its crypto materials in the native language.
Anchorage CEO Nathan McCauley, a founding member of the Libra Association, told CoinDesk getting merchants to accept Libra will be a crucial part of encouraging adoption among the unbanked. The Andreessen Horowitz–backed startup will primarily contribute to security and custody features for the Libra ecosystem, especially custody services related to the Libra investment token for institutional investors.
McCauley said Anchorage is currently applying for various licenses, but declined to specify which. He said he did not believe the association or its members would require additional licenses for money transmission or custody features for retail users in various jurisdictions.
Although Facebook’s dominance across Indonesia’s communication networks is growing rapidly, accessibility can still be hindered by government intervention.
“Of course the platform that facilitated a transaction is going to know who the transaction is coming from, who it is going to, and will have the ability to enforce whatever norms, laws or regulations that they need to do so,” McCauley said. “That tends to be jurisdiction dependent and client dependent.”
Facebook’s omnipresence in Indonesia raises questions about how Libra will impact retail users.
For example, TechCrunch reported the Indonesian government censored access to WhatsApp and Instagram, both owned by Facebook, in May when protests about controversial election results turned violent. Numerous reports have called Facebook a political “battleground” in Indonesia, where data from over a million user accounts was reportedly sold to Cambridge Analytica for targeted political campaigns.
A Facebook spokesperson declined to comment on how relations with local authorities evolved since the protests in May, focusing instead on partnerships forged with six fact-checking entities certified by the Poynter Institute to quell the spread of misinformation among Indonesian users.
This type of scenario raises red flags for Cornell University professor and blockchain researcher Emin Gun Sirer.
“I did not see anything in their roadmap related to privacy at all,” he told CoinDesk about the Libra Association. “I don’t think people are talking about how aggressive the Facebook approach is.”
A blog post by the crypto startup Nym went even further. Nym’s CTO, Dave Hrycyszyn, was briefly with the social media giant after the acqui-hire of Chainspace, a startup he co-founded.
“Libra will provide Facebook and its partners with the ability to analyze every purchase by every single Libra user,” the blog post said:
“While Facebook currently promises that it will not triangulate its vast hordes of personal data with financial transaction information to probe ever deeper into the minds of its human subjects, there are no cryptographic or technical privacy guarantees in Libra to prevent Facebook from doing exactly this.”
Mass reliance on the same provider for mobile communication and financial access would give Silicon Valley even more leverage in markets like Indonesia.
CoinDesk contributor Daniel Evans noted Facebook’s Libra Association doesn’t have any partners in the region yet and may not be able to operate “freely.”
Shaun Djie, co-founder of Tokocrypto’s Singapore-based partner, DigixGlobal, told CoinDesk the fintech ecosystem in Indonesia is currently “very malleable” as young people are “receptive to owning cryptocurrencies.” In general, crypto veterans with experience in the Indonesian market were optimistically curious about Libra.
Regardless of privacy concerns, WhatsApp and Instagram would inherently be huge factors in the local Libra ecosystem. Ho confirmed that WhatsApp, with roughly 70 million Indonesian users, is a pivotal tool for local businesses.
The Hootsuite report said 90 percent of small-to-medium businesses in Indonesia identified WhatsApp as a tool for communicating with customers. Plus, the report estimated 20 percent of Indonesian internet users are on Instagram, soaring above the global average of 15 percent.
Speaking to the local vision for Libra, a Facebook spokesperson told CoinDesk:
“Facebook is committed to helping Indonesians come together to build communities and support businesses – both large and small – through initiatives and programs with local partners.”
Image of Jakarta, Indonesia via Shutterstock
What Will It Take to Regulate Crypto Exchanges?
Konstantinos Stylianou is an assistant professor at the University of Leeds School of Law, and a visiting scientist at the Brown University Department of Computer Science.
Shortly after Bitcoin SV was delisted from Binance, CoinDesk advisor Michael Casey published an insightful op-ed discussing whether the delisting amounted to censorship (it doesn’t), whether exchanges should be held to high standards of neutrality (they should) and whether regulation is necessary to achieve this result (it is).
The idea is that because major exchanges play such a crucial role in the industry (Casey claims that “[t]hey are the cryptocurrency industry) they should not be allowed to arbitrarily discriminate between crypto assets — rather they should be regulated to operate as neutral platforms.
But ask any regulation expert and they will tell you that, absent Goldilocks conditions (hold that thought), neutrality is neither the natural state of markets, nor the natural instinct of regulators.
If that’s the case, regulation of the kind that would have saved Bitcoin SV and of the kind Casey advocates for – while possible – might not quite be around the corner.
Neutrality is rare and regulation even rarer
That neutrality is not the natural state of markets, we’ve known for a while.
It is hard to notice when there is an abundance of choice and people get what they want, but when there is too little of something, the owner of that bottleneck resource often becomes partial and does not treat everyone the same.
When the first telephone networks were rolled out, they suppressed devices and services from competitors and even arbitrarily refused call service. Microsoft saw Netscape as a threat and sabotaged it. Apple and AT&T similarly blocked Skype in the early days of the iPhone. There are countless other examples of platforms disfavoring complements or customers.
Were regulators called in to save the day in all these cases? They were indeed. Telephone networks were designated as common carriers, which came with the obligation to provide non-discriminatory service; Microsoft was forced by antitrust regulators to abandon the practices that squeezed Netscape out of the market; and Apple and AT&T dropped their restrictions against Skype after the Federal Communications Commission threatened them with net neutrality action.
It may seem that regulation came to the rescue whenever necessary to restore neutrality. But the truth is that despite occasional corrections, neutrality still remains the exception in the market and in regulatory action.
Part of the reason is that the law actually acknowledges that non-neutrality is not all that bad. The ability to deviate from uniform practice is what allows companies to differentiate themselves in the market. Not all grocery stores carry the same products, neither do they all place them in the exact same shelf, and this helps consumers and producers address diversified needs.
Even extreme differentiation, like exclusive agreements that make a business proposition unique in the market, can be good. For example, Nintendo’s exclusive console agreements helped bootstrap an entire industry by tying popular games to Nintendo’s consoles thereby increasing competition.
It is not that this kind of discriminatory practices have no downsides. Far from it. But it is also a standard assumption in modern market-driven economies is that regulation distorts markets too, and therefore, the enactment of rules requires proof that, left alone, the market would perform demonstrably worse.
In the mind of a regulator
To decide whether Binance, or any exchange for that matter, should be neutral and not discriminate against crypto assets (be it cryptocurrencies, crypto derivatives or other), regulators would consider a number of factors.
The most decisive factor to regulate is sustained monopoly power or dominance in the market.
Regulators usually impose neutrality on platforms because users and/or complements (read: cryptocurrencies) can’t or realistically won’t turn to alternative platforms, which would allow the dominant platform to exploit them.
If Binance were a monopoly exchange, then delisting a cryptocurrency would result in driving it out of the market. Or, if the cost of switching from Binance to another exchange was prohibitively high, then, similarly, Binance users and listed cryptocurrencies would be trapped by Binance’s choices.
But neither of those conditions are true here. There are numerous exchanges on which Bitcoin SV can be traded, and signing up with Binance does not preclude users from trading on other exchanges too. In other words, both Bitcoin SV and users multi-home.
In that sense, Bitcoin SV is not in the same position as companies listed on NYSE or Nasdaq, because by and large, companies are listed on only one exchange, and delisting them would mean that they cease to be publicly traded.
Harm and market distortion
Regardless of power, would decisions such as Binance’s delisting of Bitcoin SV undermine important public interest goals such as market stability and efficiency, consumer and investor protection, and capital formation?
Regulation is more likely if the problematic conduct threatens harm to public interest goals, is frequent, and has long-lasting effects without second-best alternatives being able to contain them.
At the moment, the picture is still fluid. For one thing, regulators still grapple with the question of whether crypto assets even form part of financial markets. If they do not, then there would be no legal basis to subject exchanges to financial regulation.
Assuming that they do, the frequency of the problematic conduct matters too. Crypto delisting is not unheard of but it is not exactly common either. There is no exact formula to calculate a threshold. In the case of network neutrality rules, fewer than five instances were enough to set the regulatory process in motion, whereas for privacy, numerous and repeated instances by tech giants have not resulted in regulation yet.
We also don’t know the extent of the harm of delisting. When the trading of conventional securities is suspended, they effectively disappear from the market, perhaps permanently. On the other hand, despite Bitcoin SV’s delisting from Binance, it still traded on another seven exchanges.
To be sure, Bitcoin SV’s price suffered significantly upon the announcement of the delisting on April 15 (from $73 on April 14 to $55 on April 15), and the effects to its medium-long term liquidity and reputation are yet to be accounted for (likely bleak).
This, in turn, can have severe consequences for investors’ financial situation.
But regulation is concerned with broad effects, not individual actors. The key lies less in the fate of Bitcoin SV specifically, and more in the effect of the practice of delisting in the overall stability of the market. It is a very different situation if delisting is regarded as a normal business practice whose risk is acceptably assumed by investors, and if delisting is regarded as serving no other purpose but to manipulate the market or to defraud investors. Only the latter could invite regulation.
The market can only work efficiently if all parties are sufficiently well informed to evaluate their options.
If investors had perfect information, then their reactions to Bitcoin SV’s delisting would reflect their up-to-date assessment, and there would be no need for regulation to protect them from anything. Any price, reputation and liquidity fluctuations would correspond to investors’ full and accurate beliefs and manipulation by Binance would be impossible.
This is clearly not the case here or in any other market. Perfect information is one of the most unrealistic assumptions of neoclassical economics in modern economies.
But the obvious solution to information inadequacies is more information and more transparency, not neutrality. The difference is that transparency enables actors to make a (presumably better) choice, whereas neutrality is a choice itself: it mandates a specific treatment (i.e. non-discrimination).
Regulators would normally want to start with the least onerous measure (transparency). If it is not effective, they can escalate to neutrality. If still ineffective, they may even dictate the rules of listing and delisting themselves.
Unequal bargaining power and anticompetitive conduct
The main idea behind non-regulated competitive markets is that actors behave well because market forces discipline them. If, however, the competitive forces exercised by competitors (other exchanges), complements (cryptoassets) or customers (investors) are weak, market players (exchanges) are unconstrained to act in ways that harm others.
Think about how much more difficult it would be for an exchange to delist Bitcoin with its much higher market capitalization, velocity and liquidity compared to Bitcoin SV.
Evidently, Bitcoin is more valuable to exchanges and therefore the constraints around how exchanges treat it are tighter. In reality, the majority of cryptocurrencies are nowhere near as important as Bitcoin, and the fact that they are not backed by unified institutional actors further diminishes their bargaining power.
Large investors could have a similar constraining effect, since exchanges would not want to lose investors who can generate large volumes.
For this to work it would mean that cryptocurrency ownership is concentrated in large investors (there is evidence in that direction, for example 42 percent of Bitcoin is owned by the top 0.01 of addresses), but also that these investors are actually active and that churn is high or at least plausible.
Politics, politics, politics
The factors listed above leave out one important aspect of regulation: the fact that, ultimately, it is a political game, not an academic exercise. If politics favor regulation then that’s the most likely outcome regardless of how the factors listed above weigh in. We even have a fancy name for it: New Institutionalism.
As a function of the executive branch, regulation is subject to political pressure and revolves around interest groups. Nascent immature markets, such as that of cryptoassets, are usually captured by the interests of the existing regulatory authority and those of the public.
They are captured by the existing authority (in the US, this is the SEC) because they are already in the game and by extending their reach they justify their existence. Widened reach and heightened activity entitles them to more funding and higher rating. Just look at how everyone speaks of the European Commission as the global antitrust and privacy enforcer after having gone after Google and the like.
Nascent markets are also more likely to be regulated in the name of the public interest both because people are generally more vulnerable in new market contexts, and because industry interests have not developed lobbying capacity yet. This leaves the field clear to side with the public which is generally seen as the weaker side.
A few industry associations are already present in blockchain markets (EEA, PTDL, ISDA) but none seems to represent the collective interests of exchanges. On the contrary, regulatory interest and grassroots support for crypto assets seem stronger.
In the end, it is usually not a question of whether a market segment will be regulated or not; rather a question of how it will be regulated.
Coin in vice via Shutterstock
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