Virtual Currencies Regulatory Issues

Regulatory issues[edit]

On 18 March 2013, the Financial Crimes Enforcement Network (or FinCEN), a bureau of the United States Department of the Treasury, issued a report regarding centralized and decentralized “virtual currencies” and their legal status within “money services business” (MSB) and Bank Secrecy Act regulations.[48][53] It classified digital currencies and other digital payment systems such as bitcoin as “virtual currencies” because they are not legal tender under any sovereign jurisdiction. FinCEN cleared American users of bitcoin of legal obligations[53] by saying, “A user of virtual currency is not an MSB under FinCEN’s regulations and therefore is not subject to MSB registration, reporting, and recordkeeping regulations.” However, it held that American entities who generate “virtual currency” such as bitcoins are money transmitters or MSBs if they sell their generated currency for national currency: “…a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter.” This specifically extends to “miners” of the bitcoin currency who may have to register as MSBs and abide by the legal requirements of being a money transmitter if they sell their generated bitcoins for national currency and are within the United States.[46] Since FinCEN issued this guidance, dozens of virtual currency exchangers and administrators have registered with FinCEN, and FinCEN is receiving an increasing number of suspicious activity reports (SARs) from these entities.[164]

Additionally, FinCEN claimed regulation over American entities that manage bitcoins in a payment processor setting or as an exchanger: “In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.”[47][48]

In summary, FinCEN’s decision would require bitcoin exchanges where bitcoins are traded for traditional currencies to disclose large transactions and suspicious activity, comply with money laundering regulations, and collect information about their customers as traditional financial institutions are required to do.[53][165][166]

Patrick Murck of the Bitcoin Foundation criticized FinCEN’s report as an “overreach” and claimed that FinCEN “cannot rely on this guidance in any enforcement action”.[167][non-primary source needed]

Jennifer Shasky Calvery, the director of FinCEN said, “Virtual currencies are subject to the same rules as other currencies. … Basic money-services business rules apply here.”[53]

In its October 2012 study, Virtual currency schemes, the European Central Bank concluded that the growth of virtual currencies will continue, and, given the currencies’ inherent price instability, lack of close regulation, and risk of illegal uses by anonymous users, the Bank warned that periodic examination of developments would be necessary to reassess risks.[168]

In 2013, the U.S. Treasury extended its anti-money laundering regulations to processors of bitcoin transactions.[169][170]

In June 2013, Bitcoin Foundation board member Jon Matonis wrote in Forbes that he received a warning letter from the California Department of Financial Institutions accusing the foundation of unlicensed money transmission. Matonis denied that the foundation is engaged in money transmission and said he viewed the case as “an opportunity to educate state regulators.”[171]

In late July 2013, the industry group Committee for the Establishment of the Digital Asset Transfer Authority began to form to set best practices and standards, to work with regulators and policymakers to adapt existing currency requirements to digital currency technology and business models and develop risk management standards.[172]

In 2014, the U.S. Securities and Exchange Commission filed an administrative action against Erik T. Voorhees, for violating Securities Act Section 5 for publicly offering unregistered interests in two bitcoin websites in exchange for bitcoins.[173]

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