Lawmakers’ fear and doubt drives proposed crypto regulations in US

Real bipartisan legislative efforts are rare in Washington, DC, these days, but Democratic Senators Elizabeth Warren and Joe Manchin and Republican Senators Lindsey Graham and Roger Marshall have managed to come together to co-sponsor a bill focused on crypto crime. 

According to the senators, the Digital Asset Anti-Money Laundering Act of 2023 aims to close loopholes in the nation’s Anti-Money Laundering rules. The bill would amend the Bank Secrecy Act and would designate a diverse range of digital asset providers as financial institutions. 

The Bank Secrecy Act establishes program, recordkeeping and reporting requirements for national banks, federal savings associations, federal branches and agencies of foreign banks. Digital asset providers would be required to adhere to many of the same regulations as traditional banks.

Warren introduced the legislation to the United States Senate on July 27, 2023, on behalf of herself and Senators Joe Manchin, Roger Marshall and Lindsey Graham. The bill was then referred to the Senate Committee on Banking, Housing and Urban Affairs. It hasn’t been voted on by the entire Senate or sent to the U.S. House of Representatives for consideration. Nor has President Biden signed it, and it is not a matter of law at this time. 

The legislation would add several types of cryptocurrency providers to U.S. regulators’ list of financial institutions. These include unhosted wallet providers, digital asset miners and validators or other nodes that validate third-party transactions, miner extractable value searchers, other validators or network participants with control over network protocols, or just about anyone else who facilitates or provides services related to exchange, sale, custody or lending of digital assets.

All these organizations and individuals would be subject to the same regulations currently applied to financial institutions in the United States. The bill does include exceptions for those who use distributed ledger, blockchain technology or similar technologies for internal business purposes. 

Crypto under federal review

If the bill becomes law, within 18 months of its enactment, the U.S. Treasury’s Financial Crimes Enforcement Network would announce that any U.S. person with $10,000 in digital assets or one or more digital assets overseas would have to file a report. Within the same timeframe, the U.S. Treasury would establish controls to mitigate unlawful financial risks associated with digital asset mixers and anonymity-enhanced cryptocurrency. 

Within two years of the bill’s enactment, the Treasury, in consultation with the Conference of State Bank Supervisors, will create a risk-focused examination and review process for those digital asset participants newly designated as financial institutions. They would determine if efforts to stop money laundering and to counter crypto-funded terrorism are adequate and if crypto providers and facilitators are compliant with the new rules. Subsequently, within the same time frame, the Securities and Exchange Commission and the Commodity Futures Trading Commission will consult with the Treasury on exactly the same matters. 

What about my favorite BTC kiosk?

The next part of the bill is focused on digital asset kiosks. Within 18 months of the bill’s passage, FinCEN will require digital asset kiosk (ATM) owners and administrators to submit and update the physical address of their kiosks every 90 days. The kiosk owners will also need to verify the identity of each customer using a valid form of government-issued identification, and they will have to collect the name and physical address of each counterparty to each transaction. 

Within 180 days, FinCEN will issue a report about any digital asset kiosks that haven’t been registered. The report would include an estimate of the number of unregistered kiosks, their locations and an assessment of additional resources that FinCEN might need to be able to investigate them.

Within a year of the enactment of the legislation, the U.S. Drug Enforcement Agency would issue a report identifying recommendations to reduce drug trafficking and money laundering associated with digital asset kiosks. 

Crypto industry impact

Grant Fondo, co-chair of Goodwin’s digital currency and blockchain practice and a former Assistant U.S. attorney, tells Magazine that “the bill is an attempt to pull more players in the digital asset industry within regulatory control, to close gaps in what some in Congress see as not covered under the current regulatory regime.” 

Fondo believes that, if passed, the legislation would have the practical effect of killing decentralized finance in the U.S. by applying an unworkable regime on DeFi protocols. Fondo sees the legislation as imposing a burden on validators and miners and also questions how realistic it would be to impose bank-like requirements on a software company validating blockchain transactions. 

Hadas Jacobi, an attorney in the Financial Industry Group at Reed Smith who previously worked as a financial enforcement regulator for the State of New York, agrees. According to Jacobi, the act would apply Bank Secrecy Act requirements, depending on the context, to crypto participants that are not financial institutions.

“The act could be read as applicable to programmers and other tech providers who create the framework for financial services operations rather than provide services themselves,” Jacobi says.

Although Jacobi believes there is a need for legislative clarity in the space, she questions whether the primary intent of the legislation — the crypto sector’s threat to national security — is even relevant. Jacobi says that on-point regulation of cryptocurrency and digital asset services providers is necessary, but digital assets do not threaten national security.

“A general statement that digital assets pose a threat to U.S. national security, however, would be both inaccurate and short-sighted. Bad actors in the digital asset space pose a global threat from both a national security and a financial stability standpoint — but the digital asset industry and its underlying technology do not,” Jacobi says.

What the politicians are saying

In a written statement, Senator Marshall says that the bill addresses U.S. concerns about national security.

“This legislation is a matter of national security. Mastermind hackers from adversarial countries like Iran, Russia, and North Korea are committing cybercrimes against the United States to the tune of BILLIONS of dollars; they must be held accountable. The reforms outlined in our legislation will help us fight back and secure our digital assets by using proven methods that our domestic financial institutions have been complying with for years,” Marshall states.

Marshall says that the legislation would extend Bank Secrecy Act responsibilities to include Know Your Customer requirements for those affected, would address a “major gap” with unhosted digital wallets, would direct FinCEN to issue guidance on financial institutions to mitigate digital asset risks, would strengthen enforcement of BSA compliance, would extend BSA foreign bank account rules to include digital assets and would mitigate illicit finance risks of digital asset ATM’s. 

Warren argues that U.S. authorities have warned that crypto is being used for all types of crimes and for antagonistic nations to avoid U.S. sanctions.

“Rogue nations like Iran, Russia and North Korea have used digital assets to launder stolen funds, evade American and international sanctions, and fund illegal weapons programs,” Warren says.

Suggesting that the act will help to subvert these efforts, Warren focuses her statement on North Korea’s missile program.

“Nearly half of North Korea’s missile program, for example, is estimated to be funded by cybercrime and digital assets. In 2022, illicit digital asset transactions totaled at least $20 billion — an all-time high,” Warren writes. 

Manchin asked Democrats and Republicans to come together and vote for the bill. “Our bipartisan legislation would curtail these security risks and require cryptocurrency platforms to abide by the same Anti-Money Laundering rules that banks have to follow. I urge my colleagues on both sides of the aisle to support this common-sense legislation to protect Americans by preventing bad actors from using cryptocurrencies to finance their criminal activities,” Manchin says.  

Fondo doesn’t see how the Anti-Money Laundering Act could minimize risks to national security but does recognize how the bill might address issues associated with anonymity-enhanced cryptocurrency.

Still, he would like to see this legislative effort well thought out before passing the bill. “No one wants terrorists and criminals masking their financial transactions. But conversely, privacy is a rare commodity, so it’s important to properly balance it with national security,” Fondo says. 

Jacobi is concerned that overregulation will lead to redundancy and excessive costs that will drain the industry. She says that the act would direct FinCEN to regulate digital service providers as money transmission businesses, although she believes that they have already been doing that since 2013. Furthermore, she says that most state regulators have been examining and registering them for almost as long. 

“The Act has the potential to upset the balance of the existing U.S. dual state and federal regulatory regime by creating redundancies in the supervision and examination of money transmission businesses, not to mention exposing the digital asset industry to resource-draining, duplicative enforcement actions,” Jacobi says. 

Will the bill become law?

It’s anybody’s guess. The House of Representatives is just getting back on its feet after struggling for weeks to elect a new speaker. 

The U.S. Senate still requires a supermajority vote to approve almost any piece of legislation, and all the while, members of Congress and President Joe Biden are hyper-focused on geopolitical matters like the Israel/Hamas conflict and the war in Ukraine. 

Also, most U.S. federal-level politicians are about to enter the 2024 election season, where control of the Senate, the House of Representatives and the Presidency are all up for grabs. 

Controversial legislation will certainly stall until after the election, but a potentially popular crypto bill might just be palatable to candidates on both sides of the aisle to find its way onto the president’s desk. If the Digital Asset Anti-Money Laundering Act were to become law, many cryptocurrency providers would have to learn how to comply with the same regulations as traditional financial institutions.