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US Crypto Regulations Between a Rock and a Hard Place

US Crypto Regulations Between a Rock and a Hard Place

In the midst of the delay for the approval of Bitcoin exchange-traded fund (ETF) applications after several rejections, and current uncertainty regarding regulatory framework, US Securities and Exchange Commission (SEC) Commissioner Hester Peirce provided insights into the matter as an opportunity for better industry development.

Last week, Heister made comments on the issues of state regulation at the University of Missouri School of Law where she opined that “entrepreneurship and innovation do not have the happiest relationship with innovation”, which may be the core reason why crypto ventures have suffered in the hands of most regulatory systems.

The SEC’s clamp down on non-compliant ICOs (issuing securities disguised as utility tokens), its rejection of Bitcoin ETF applications, and somewhat deliberate delay in providing a regulatory framework as regards the industry may have a more logical than malicious intent behind it. Innovations, while they make life easier most of the time, always come outside the norms, especially those of the regulatory system and often times drives regulators to accept changes despite skepticism.

“Regulators, for their part, tend to be skeptical of change because its consequences are difficult to foresee and figuring out how it fits into existing regulatory frameworks is difficult,” she said, implying that it’s not an easy task for the SEC to reject what seemingly looks like a financial innovation in an attempt to weigh and understand the situation correctly.

The last financial crisis has made it easier for trust issues to thrive, especially on the part of the regulator, given that some ascribe the crisis to be due to “financial innovations”. Peirce pointed out that “…every innovation — even one that almost everyone agrees is good — carries with it some risk”, something currently agreeable with the cryptocurrency system.

Accordingly, since innovations can be unpredictable, so caution must be applied when drafting regulatory frameworks, especially for a new industry such as blockchain and its underlying assets. Peirce continues by saying that “as regulators, therefore, we must allow innovation to proceed, even as we put in reasonable safeguards and watch for unanticipated consequences”, and still, it has to come with no comprise to the securities laws in place. It behooves one to imagine where the true line of trade-offs will be drawn, seeing that the core structure of the crypto industry lies in decentralization, which by implication makes it harder for any regulator.

Still, the regulatory polarity has created distinct shades of gray areas around the world. With the Chinese government adamant with its crypto ban, the Indian government chose a rather bizarre stance — first with a ban on banking services to crypto related ventures, and then planned to develop a state-backed cryptocurrency, which it shelved later on. Meanwhile, other jurisdictions have launched out to attract the “rejected”, by providing a safe haven to crypto ventures, and a few nations are developing their own state-backed crypto to augment their economies.

In the UK, the principal regulator has extended an invitation to the public through its consultation paper to better assess a possible way forward for industry regulations. It said in late January: “We are consulting on Guidance for crypto assets to provide regulatory clarity for market participants.” Meanwhile, in the Middle East, the United Arab Emirates (UAE) has also hinted on possible ICO regulations to be introduced later this year.

So far, the crypto industry has had checkered developments and have more recently been in a stalemate (regardless of minor spikes in market dynamics), and many have been waiting eagerly for the next bull-run trigger. It’s basically what most crypto enthusiasts talk about these days, consequently, dialing down tech innovation, development and mass adoption of crypto products — at least, for the innovations that they stand for — and are relying on adjuncts gunning for more institutional involvement that would supposedly propel the market further.

While the US SEC does recognize the potential this innovative technology may provide, as Peirce says. “the United States has benefited greatly from the relative importance of non-bank financing”, supposedly placing them on par with the capital market. This further buttresses the point made by SEC boss Jay Clayton who viewed crypto as a “promise for adding efficiency to our [capital] marketplace”.

However, the regulatory watchdog maintains a stance of balance that involved protecting the interests of investors as market volatility, manipulation, hacks, frauds, exchange illiquidity, and a host of other unforeseen consequences from the unstandardized cryptosystem remain legitimate concerns.

Perhaps, when the SEC, as well as other financial regulators, have finally regulated the industry, these problems will be adequately tackled. Meanwhile, the regulator itself is waiting for the maturity of the industry marked by improved oversight on market surveillance, definitive asset classification, and airtight custody solutions, before embracing the industry wholeheartedly. But it still remains to be known at what cost?

The good news so far is that earlier this year, a bill was introduced in the House to help with asset classification, that partly takes care of one problem. Nasdaq introduced its SMARTS Market Surveillance solution which may have provided precedence in the direction of play towards controlling market manipulation. On the subject of custody solutions, crypto ventures are urged to ensure best cybersecurity practices. Fidelity, Coinbase, Gemini, BitGo, Ledger, ItBi and even Goldman Sachs are among many reportedly racing toward that end.

Peirce’s overall sentiment in a manner of speaking, perhaps one shared on both sides of the tussle is that the delay in drawing clear lines may actually allow more freedom for the technology to come into its own.


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SEC Posts Ad for Big Data of “Most Widely Used” Blockchain Ledgers


The US financial regulator, the Securities and Exchange Commission (SEC), has announced it wants blockchain expert firms that can provide it data on the “most widely used” decentralized ledgers, based on transaction volume.

This, according to the regulator, is needed for it to study and “monitor risk and improve compliance” in the cryptocurrency sector. The agency has laid down specific requirements for the information, such as easy readable data, how the information was compiled and the methodology used for extracting transaction details.

The US regulator is known for its tough stance on the legality of cryptocurrencies. However, it has recently announced it will be prioritizing the study of digital assets so that it can counter “concerns related to custody and safekeeping of investor assets, valuation, omitted or misleading disclosures regarding the complexities of the products and technology, and the risks of dramatic price volatility”.

Interested parties, according to the announcement, can respond to SEC by 14 February.

To that effect, SEC has already setup a dedicated department, known has FinHub, that helps financial technology startups to understand and comply with the legalities, especially when it comes to initial coin offerings (ICOs). The SEC has finally realized that many of the startups face immense difficulty in navigating through legal jargon, often making it extremely complex for the organizations to understand what laws are broken. For this, it has announced it will be releasing guidance that will comprise of “plain English”, where any crypto organization can determine if their cryptocurrency falls under the classification of security or not.

The SEC’s interest in studying more about DLTs comes in parallel with Commodity Futures Trading Commission (CFTC), another regulatory body’s December 2017 announcement that it would be looking into Ethereum’s workings to ensure derivative markets are compliant.


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Ex-US Congressman Criticizes Stifling Government Approach to Crypto


Former US Congressman George Nethercutt, a backer of cryptocurrencies, has criticized the current approach of the government on the matter and has said that it is damaging progress and innovation of this vital sector.

Nethercutt is a Republican who served as a representative from his home state of Washington for ten years since 1995. He is the founder and chairman of Nethercutt Consulting LLC and of his nonprofit, the Nethercutt Civics Foundation.

Criticizing the current approach of the government on the matter, Nethercutt wrote in a recent Op-ed for his non-profit foundation:

“While diplomats at the State Department are negotiating hard to pave the way for American innovation, US regulators such as the Securities and Exchange Commission (SEC) have been slow to make pronouncements regarding cryptocurrencies… This has hampered innovation and left many American businesses in regulatory limbo, particularly with respect to whether or not their tokens are classified as securities.”

While the SEC has been criticized by a number of past and current serving congressmen, it is clear that the regulator’s approach is unpopular among many sections of the public outside the cryptocurrency fraternity as well.

There is also considerable confusion regarding the jurisdiction of the SEC along with the Commodities and Futures Trading Commission (CFTC) as both regulators differ on key aspects of regulating the industry.

For Nethercutt, the outdated SEC laws dating back from as early as 1930s are not compatible with modern cryptocurrencies. He wrote: “From a legal perspective, experts have concluded that securities regulations simply do not apply to cryptocurrencies.”

It remains to be seen what influence Nethercutt may have on the government.


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ICO Fundamentals: Empowering or Misleading Investors?

ICO Fundamentals: Empowering or Misleading Investors

The year 2018 saw the dramatic decline of the initial coin offering (ICO) market. January began with an outstanding USD one and a half billion invested into ICOs, with this figure trickling down to less than USD 200 million per month as the year closed. 

So, what killed the booming ICO industry? In large part, the US government crackdown and the relatively poor performance of the cryptocurrency market seemed enough to scare off investors last year.

Token offerings are an innovative way for startups with solid proof of concept to raise capital should the option of collateral needed to take out a business loan be lacking, or the lack of contacts or skills needed to secure capital from institutional investors.

Through the examination of recent studies from both academics and journalists, it can be observed that the biggest threat to the industry is posed by irresponsible startups that are either reluctant to keep investors fully informed, or purposefully misleading them. If the ICO market can be regulated in a way that avoids stifling innovation, it is suggested that the token model can become the most dominant form of venture capital financing.

Transparency, Truth, and What ICOs Need to Survive

One theory presented by Jiri Chod and Evgeny Lyandres suggests that investors have as much to gain as do the entrepreneurs holding the ICO – as long as there is no disparity of information available to the investors, however. And that would seem to be one of the most predominant issues cited against startups holding ICOs; offering false or exaggerated promises of returns, or whitepapers full of fraud and plagiarism.

Indeed, the Wall Street Journal investigated the details of 3,291 whitepapers pertaining to ICOs, finding that over 2,000 of them included terms “nothing to lose, guaranteed profit, return on investment, highest return, high return, funds profit, no risk, and little risk,” language that has previously led US state and Federal regulators to issue cease and desist orders or file charges. Some 16% of the whitepapers were found to show evidence of either plagiarism, identify theft or the promise of ”implausible returns.”

Many see government regulation of the sector as an appropriate way to manage the risks posed to investors and hold startups accountable to their claims. Chod and Lyandres theorize that if this is the case, ICOs have the chance to ”dominate traditional venture capital (VC) financing.” Others, however, argue that too much intervention would likely stifle innovation in the sector. US-based cryptocurrency exchange Kraken has said that the cost of handling subpoenas is becoming a ‘‘barrier to entry” for new exchanges. 

Chod and Lyandres concludes: ”An implication is that while regulating ICOs is desirable, banning them outright is not.”

The Role of Tokenomics

Another academic paper that delves into tokenomics is authored by Lin William Cong, Ye Li, and Neng Wang entitled Tokenomics: Dynamic Adoption and Valuation. It outlines a model that can be used to predict the future growth of tokens that act as a means of payment on their native blockchain platforms, with the premise of an argument centered around the notion that the expected popularity and technological progress of the project renders the token as an ”attractive store of value,” .promoting further adoption.

Again, during the ICO stage, a parity between investor and startup in terms of the project’s realistic roadmap is required in order for this model to successfully play out.

The paper also outlines some of the benefits blockchain platforms can enjoy by using a token economy: ”Tokens… can accelerate adoption, reduce user-base volatility, and improve welfare.”

The US SEC Crackdown: Warranted or Not?

While the US Securities and Exchange Commission (SEC) has received criticism for its actions against ICOs last year, examining several of the public cases individually shows that perhaps the actions of the government agency were necessary in order to keep investors fully informed on their decisions, as the research shows that it is required to promote a healthy ICO market.

In the case of AriseBank, the SEC halted the ICO after proving that the startup had falsely claimed to be FDIC-insured bank which would have allowed the decentralized bank to offer customers FDIC-insured accounts. The SEC cited that AriseBank had ”used social media, a celebrity endorsement, and other wide dissemination tactics” to raise a claimed USD 600 million of its USD 1 billion goal in two months.

One of the benefits of ICOs cited by Chod and Lyandres is the unique ability of tokens to allow entrepreneurs to shift some of the venture risks onto investors without compromising their own control rights. This could be the biggest benefit of token offerings for startups, but for it to revolutionize venture capital financing in a way it is capable of, investors need to be made aware of the risks by entrepreneurs.

2019: What to expect

The future of ICOs in 2019 depends on three major factors: US regulation, transparency from startups, and the market performance of major cryptocurrencies.

Chairman of the US SEC Jay Clayton himself has said ”ICOs can be effective ways for entrepreneurs and others to raise capital,” so long as you adhere to the regulations set by his agency at least.

Tokenomics is a cutting-edge theory with the potential to revolutionize the structure of business development and entrepreneurship, but for it to live out these prospects, right now, startups would be advised to professionalize their whitepapers and start playing by the rules at least until the industry can prove it has matured.

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The US SEC Allowed More ICOs to Sell Securities Under Form D in 2018


In 2018, the number of US Securities and Exchange Commission (SEC) authorized initial coin offerings (ICOs) increased significantly. These ICOs legally sold securities to large-scale investors, reports MarketWatch on 11 January.

The SEC’s Electronic Data Gathering, Analysis, and Retrieval system (EDGAR) was used by MarketWatch to compile the data. They searched some keywords in the above-mentioned system. These keywords included: coin, token, ICO, and initial coin offering. As reported, they found 287 results for the ICO fundraisings which were approved by the commission. The companies were allowed to sell the securities under the Form D immunity.

A short registration form used by the company to disclose the prospective investor’s information in its securities issuance is known as Form D.  This form can be filed even after 15 days of the first token sale. Moreover, the form is significantly shorter in length as compared to the reports that are required before the sales of non-exempt security to US investors.

The exempted securities can only be sold to the accredited investors. The accredited investors may include individuals having a net worth of more than USD 1 million, those having a consistent yearly income of more than USD 200,000 or enterprises having assets worth more than USD 5 million.

According to the media reports, the ICOs registered in 2018 under Form D have a combined declared value of USD 8.7 billion. Moreover, the Form D registrations reached the maximum (99) in the second quartile of 2018. On the other hand, 87 companies were registered in the first quartile, followed by 53 and 48 in the third and the fourth quartile, respectively.

Recently, the SEC officially announced the cryptocurrencies to be the top examination priority for the year 2019. Nevertheless, the regulation of cryptocurrencies is still one of the toughest in the world.


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Chairman US SEC Remains Coy on ETFs, Reiterates Tough Stance on ICOs

In a recent CNBC interview, Jay Clayton, the Chairman of the US Securities and Exchange Commission (SEC), maintained the watchdog’s stance on ICOs while remaining tight-lipped about the future of Exchange-Traded Funds (ETFs).

We’ve had no ICOs registered” was his response to a question posed by the show’s presenters on deals made with two ICOs, Airfox and Paragon. He further added, “To the extent that an ICO is being conducted offshore or pursuant to a private placement exemption, fine; to the extent that you’ve conducted a public offering in an ICO, it’s non-compliant.”

The SEC, along with the Commodities and Futures Trading Commission (CFTC) of the US, have ruled that specific cryptocurrencies such as Bitcoin are not securities since they do not offer any stake in the business or offer future returns to investors. ICOs, however, can be securities and each one has to be considered individually to ensure the tokens are securities or not. “I think we’ve been clear that Bitcoin isn’t a security, but many of the ICOs that you see and talk about – they are securities,” Clayton said.

Even on other issues, such as Bitcoin ETFs, the chairman evaded answers and stressed the SEC’s existing stance, “I’m not going to comment on timing or anything like that, but we’ve been clear on some of the issues that are of concern to us.”

The questions stemmed from the fact that SEC had ordered Paragon and Airfox to return the millions of dollars it had gathered from investors and then further pay fines the regulators placed on both platforms on violating regulations. The platforms’ tokens came under the classification of securities and were found guilty on account of selling the said securities without proper licensing.

Airfox and Paragon had raised a combined USD 27 million from their ICOs last year.


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VanEck: We Have Resolved Bitcoin ETF Concerns With SEC

As the race to launch the first Bitcoin exchange-traded fund (ETF) continues, a meeting Tuesday between investment management firm VanEck and the US Securities and Exchange Commission (SEC) seems to have successfully resolved the regulator’s main issues with its ETF proposal.

VanEck’s ETF application was rejected among several others in August, with the SEC calling into question the ability to prevent Bitcoin markets being manipulated and subject to insider trading. In Tuesday’s discussions, five of the SEC’s key issues that lead to the rejection have apparently been resolved.

The SEC published a document outlining the main points of discussion in the meeting, listing the following reasons it now thinks the VanEck SolidX Bitcoin Trust should now be approved:

“• There now exists a significant regulated derivatives market for Bitcoin
• Relevant markets – CBOE, Bitcoin futures, OTC desks – are regulated
• Concerns around price manipulation have been mitigated, consistent with approval of prior commodity-based ETPs
• CBOE’s rules are designed to surveil for potential manipulation of Trust shares
• Promotes investor protection”

Playing by the rules

It would seem that VanEck made a real and successful attempt at altering the structure of its ETF in order to reach compliance with the SEC’s heavy regulations aimed at protecting investors.

Several of the changes made are listed in the document published following the meeting, including that VanEck has agreed to use OTC Bitcoin trading desk pricing which is regulated by the CFTC, and instituting a USD 200,000 share value to price out retail investors.

SEC review deadline set for Friday

As Bitcoin News reported earlier this month, the SEC has a deadline set for approving the ETF’s: Friday 26th October.

While analysists have generally agreed they do not expect to see an approval until next year, the success of VanEck’s meeting may prove them wrong.


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Bipartisan Common Blockchain Definition Bill Presented by US Legislators

A bill proposed to the US House of Representatives by two legislators is seeking to establish a “consensus-based definition of blockchain”.

Defining moment

Titled “Blockchain Promotion Act of 2018”, the bill was produced by Congresswoman Doris Matsui and Congressman Brett Guthrie. They are members of the Energy and Commerce Subcommittee on Communications and Technology and Digital Commerce and Consumer Protection.

Introduced on 1 October, the bill intends to have the Department of Commerce create a working group of stakeholders within the government and private entities in order to achieve this consensus and study the technology further.

According to a press release, the “bi-partisan” bill comes with recommendations for the National Telecommunications and Information Administration (NTIA) and the Federal Communications Commission (FCC) to further examine and study the impact of blockchain technology “on spectrum policy and opportunities for the adoption of blockchain to promote efficiencies within the Federal government”.

Matsui describes the technology as transformative for the global digital economy, citing “greatly increased transparency, efficiencies, and security in supply chains to more-opportunistically managing access to spectrum”, as blockchain deployment opportunities.

Battling for blockchain

Efforts to establish definitions of cryptocurrency alone in the United States have been ongoing and come up against significant barriers set in place by the Securities and Exchange Commission (SEC). Enterprises, innovations and federal entities are making the push to make US laws more accommodating for blockchain.

Cryptocurrencies in the states are generally classified as securities. Bitcoin and Ethereum don’t qualify as securities as they are decentralized, though this has prompted a backlash from the blockchain industry. In addition to this, the Chamber of Digital Commerce (CDC) published a paper that offers a guide on digital tokens for law and policymakers.

Currently, initial coin offerings are tricky to operate in the US as they require tedious and lengthy application processes to be permitted by the SEC, who known to be firm with unlicensed ICO traders.

The SEC is being pressed by the United States Congress clarify crypto security guidelines, a factor of which is having effects on the establishment and operation of domestic enterprises. In a letter to the SEC, Congress claims the SEC’s lack of clarification could cause the country to fall behind in the crypto and financial technology sectors.

Pressing matters

Over the summer, a Congressional hearing saw the Chairman of the Commodity Futures Trading Commission (CFTC) speak up against the lack of suitable laws that allow the CFTC to participate in Proof-of-Concept blockchain tests. He said that due to bureaucracy, industry innovation is being stifled in the US.

A few weeks ago, blockchain companies formed “The Blockchain Association“, a lobbying group with the intention of representing entrepreneurs as well as investors who wish to navigate US laws compliantly. The group also wishes to see the present issues of cryptocurrency taxation and classification addressed. Coinbase, Circle, Polychain Capital, Digital Currency Group and Protocol Labs are the founding members.

In the Blockchain Promotion Act of 2018 press release, Congressman Brett Guthrie says:

“Blockchain can be a great resource for innovation and technology, but we must figure out exactly what best common definition is and how it can be used. I was proud to join my colleague Congresswoman Doris Matsui to introduce the Blockchain Promotion Act to better understand blockchain and its role in our digital economy.”


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Coinbase CEO Brian Armstrong “Enjoying” Low Bitcoin Prices

The CEO of prominent cryptocurrency exchange platform Coinbase, Brian Armstrong, shared a series of posts on Twitter Tuesday promoting the positive benefits of extended periods of low Bitcoin prices.

Armstrong focused on three cycles of Bitcoin prices from 2013, 2014, and 2017, commenting that the up and down momentum of Bitcoin is normal for the cryptocurrency.

His Tweet reads: ”After many years of this, I’ve come to enjoy the down cycles in crypto prices more”,’ while justifying this by saying it rids the market of people who are in it for “the wrong reasons”.

Those with the right reasons for involvement as he sees it are given ”an opportunity to keep making progress while everyone else gets distracted”.

1/ Shared the following message with the team @coinbase today…

— Brian Armstrong (@brian_armstrong) June 19, 2018

With the statements in the Tweets initially shared with Coinbase staffers, Armstrong reminded them to ignore any “irrational exuberance” or “irrational pessimism” regarding Bitcoin’s price.

”Reality is always somewhere in the middle, more correlated with real usage (transactions per day) than the price”, he noted.

His opinions are shared with the likes of Phillip Nunn who recently reiterated his belief that Bitcoin will not have trouble recovering from this low period, and will make it to USD 60,000 by the end of the year.

Bitcoin currently stands at around USD 6,550, having recovered from lows of approximately USD 6,250.

Allegations against Coinbase

Armstrong’s exchange Coinbase is currently facing allegations of fraud from several of its clients. The accusers have given a 134-page report to the US SEC and the California Department of Business Oversight outlining their claims.

As outlined by Mashable, the report illustrates Coinbase as an irresponsible actor that was underprepared for its own success.

The complaint files note multiple occasions where would-be traders find their money has disappeared, or to be locked out of accounts, with Coinbase reacting with what is described as ”aggressive nonchalance“.

Coinbase has responded to these complaints by issuing a statement saying they have increased their support team by over 150% and reduced the response time to less than ten hours for 95% of complaints.


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