The Genesis
Before the advent of Bitcoin in 2008, commerce on the Internet relied almost exclusively on financial institutions serving as trusted third parties to process electronic payments. Traditional banking worked well enough for most transactions, but it suffered from the inherent weaknesses of the trust-based model. Digital transactions were also slow and expensive. To overcome this, Satoshi Nakamoto proposed “Bitcoin: A Peer-to-Peer Electronic Cash System” to enable digital cash payments without needing to rely on costly third parties and to prevent the double spending problem.
Bitcoin would be based on cryptographic proof instead of trust, allowing any two willing parties to transact directly with each other without the need for an intermediary. The system would encompass a distributed timestamp server to generate computational proof of the chronological order of transactions. This way, the system would remain secure as long as honest nodes collectively controlled more CPU power than any cooperating group of attacker nodes.
While the focus of this literature review is not on Bitcoin’s protocol and design, it is necessary to outline how Bitcoin, and by extension, other cryptocurrencies work before summing up with the legal and regulatory challenges.
Traditionally, money transactions are recorded on a ledger. The same applies to Bitcoin. Bitcoin has a global ledger that maintains the global state of all Bitcoins. The Bitcoin ledger is constantly updated and openly shared with other peers in the network until a state of consensus is agreed upon by all participants known as “miners.”
Contained within the Bitcoin network is a finite number of Bitcoins, a.k.a. the Bitcoin Cryptocurrency ‘BTC’, which is “rewarded” to a miner after “digging to find gold” in the hashing process.
The underlying technology behind the Bitcoin ledger is referred to as the “Blockchain”, and these batches of transactions are referred to as “blocks”. The blocks are “append-only logs” and are added to the chain of other blocks using cryptographic signatures, creating the blockchain. Thus, “…Blockchain is to Bitcoin, what the internet is to email. A big electronic system, on top of which you build applications. Currency is just one.” -Sally Davies.
The unique structure of the Bitcoin blocks is that every block contains a reference to the block it builds upon, which creates a linear sequence overtime. The accumulated “Proof-of-Work” of the whole network acts as a signal that the miners, who are highly invested parties, have come to agreement as a means to determine the validity of any given block or transaction.
In traditional banking, there is an amount of trust required from a third-party intermediary to keep the records free from bad actors and dishonest activity. In Bitcoin, the ledger is public and permissionless and uses a type of distributed consensus known as proof-of-work, as earlier mentioned. The elimination of a central party and intermediaries means that there is not a ‘single point of failure’ and allows for more efficient and cheaper transactions.
Bitcoin is transparent at its most basic level in that it is necessary to announce all transactions publicly. As such, all miners are made aware of all transactions on the network occurring in real time in order to prevent double spending. Additionally, the transactions are recorded in plaintext on the ledger and can be seen by anyone at any time. Once a transaction is recorded it is time-stamped and effectively becomes immutable/unalterable.
In order to successfully hack the Bitcoin ledger, an attacker would have to redo the entire proof-of-work of the block and all blocks after it and then catch up with and surpass the work of the honest nodes. They must do so in a way that is completely public thus risk exposing their dishonesty to the entire world, and also, leave a direct trail behind for law enforcement to follow. This just goes to show how difficult it is to hack the Bitcoin ledger.
What is Money: Fiat -vs- Cryptocurrencies?
Money can be anything that can serve as a:
- Store of Value, which means people can save it and use it later
- Unit of Account, that is, provide a common base for prices; or
- Medium of Exchange, something that people can use to buy and sell from one another.
Cryptocurrencies are money insofar as they can be a medium of exchange between two parties and act as a store of value. It is also evident that they have become a unit of account as some such as BTC, Ether and DOT have been widely adopted by merchants and customers etc. In addition, they offer features which the traditional money system is unable to offer right now: cryptocurrencies can be spent and received by anyone, anywhere, at any time throughout the world and without the need for a bank or a government. Paradoxically, this is the most revolutionary aspect of cryptocurrencies and yet, its biggest challenge as well.
The contemporary monetary policy of fiat currencies is for the most part governed by the political and financial power brokers of the nation-state. Monetary policy is most often used as a tool to stimulate new economic growth or maintain the national or regional economy. As nations undergo political change, often the state’s monetary policies become a tool by which political parties seek to achieve their political goals and enact their vision for the future productivity of the economy.
Since the collapse of the Bretton Woods system, IMF member states have been free to choose any form of exchange arrangement they wish (except pegging their currency to gold): allowing the currency to float freely, pegging it to another currency or a basket of currencies, adopting the currency of another country, participating in a currency bloc, or forming part of a monetary union.
What makes Bitcoin attractive is that it is a non-political, democratic, supranational, decentralized electronic cash system, which does not need to fulfil any political policy goals or national agendas. Whilst Satoshi’s Whitepaper had not envisaged Bitcoin becoming legal tender, in June 2021 El Salvador became the world’s first country to adopt Bitcoin as legal tender, enacting legislation that takes effect in September 2021.
This step means that about 70% of the unbanked population in the country now has a digital payment option. Merchants in the country are required to accept Bitcoin but will be able to instantly swap the received Bitcoin for U.S. dollars, the other legal tender in the country. The Salvadoran government also provides a wallet application, the “Chivo”, and a signup bonus of $30 in Bitcoin to give people an incentive to use the wallet application. Despite this, the IMF sees that the move by El Salvador “raises a number of macroeconomic, financial and legal issues that require very careful analysis.”
Bitcoin’s Energy Consumption
As Bitcoin and other Cryptocurrencies become ever more popular, media attention has turned to, amongst other things, the cryptocurrency’s potential for money laundering, tax evasion and other shady dealings, market volatility, its energy consumption and negative environmental footprint to deter potential investors from investing in Bitcoin.
I, personally, find the “market volatility and energy consumption” argument insubstantial and tenuous. Bitcoin has the right properties for the world’s money, and the more the world comes to terms with this, the more stable it will become. As for money laundering and terrorist financing, it is submitted that “there is no such thing as cryptocurrency crime…these are just old crimes utilizing new methods.”
With evolving technology and increased environmental awareness, miners have shifted to using ASICs, which are both more powerful and more energy efficient – around 50 million times faster (H/s) and a million times more energy efficient (H/J) in mining Bitcoin than the CPUs used in 2009. Factoring environmental concerns, El Salvador is incentivizing Bitcoin miners to come to the country, offering them access to 100% carbon-free geothermal energy powered by volcanoes.
When China initiated a mining crackdown on miners in about June 2021, Senator Cynthia Lummis of Wyoming opened her doors for them noting that cryptocurrency mining is helping its oil drilling industry in a way that keeps carbon out of the air while using it to produce another product in the form of Bitcoin. Miami’s Mayor Francis Suarez also sought to patriate the mining diaspora by promoting the city’s essentially unlimited supply of cheap nuclear energy.
In July 2021, Paraguay became the second country in Central America to provide a legal framework for Bitcoin and in particular the BTC mining industry using 100% renewable energy. The announcement was made on Twitter by Carlitos Rejala:
“Today, we are proud to present this project which will offer considerable economic, financial and fiscal benefits for our population through the consumption and use of our renewable energy, mainly from our hydroelectric plants of Itaipú and Yacireta. The country has huge surpluses that we will use for the benefit of the Paraguayan state,”
The legislation proposed by MP Carlitos Rejala and Senator Fernando Silva has received a warm reception although it does not go as far as that of El Salvador in terms of making BTC legal tender and is not banked by the Central Bank of Paraguay. Instead, the proposed law seeks to regulate crypto transactions for the state to collect taxes for trading and other use cases. Also, cryptocurrency traders will have to be licensed annually and soon to be commissioned state institutions will carry a record of these.
Bitcoin’s and other Cryptocurrencies Adoption Rate
Bitcoin’s adoption rate has been outpacing the internet’s user growth. Recent projections predict that the world’s most valuable cryptocurrency will achieve a billion users in the next four years. With about 130 million users, Bitcoin is now at a similar inflection point where the internet was in 1997. Bitcoin’s mass adoption rate hints that the largest digital coin will hit the one billion user mark nearly two times faster than the internet did.
Bitcoin and other Cryptocurrencies have established a firm rooting and are now more prevalent in the financial landscape than before. This means that the capital markets can no longer ignore cryptocurrencies as some of the statistics suggest below:
- Bitcoin had a market capitalization of $1072.21 billion as of February 21st, 2021.
- The global blockchain market will go up to $23.3 billion by 2023.
- The highest number of global daily bitcoin transactions in Q1 of 2021 is 367,536.
- Between 2012 and 2020, Bitcoin has gained 193,639.36%
- The market size for cryptocurrency will reach $1087.7 million by 2026.
- The user index for 2021 shows a 97% confidence in cryptocurrencies.
- Turkey is the country with the highest rate of cryptocurrency adoption (20%).
What gives Bitcoin Value?
The inherent value of Bitcoin comes from its utility. Particularly, its ability to be used in micro and nano payments. Prior to Bitcoin, there was no way to make economically viable micropayments. Whilst the micropayments aspect is a fundamental utility that enables businesses to create new value streams, Bitcoin is not limited to just micropayments as its fundamental utility.
Bitcoin could also have other applications such as Electronic Data Interchange (EDI), which enables businesses to exchange documents and execute complex business deals in a simple, verifiable way with the benefits of being connected through a single global network.
El Salvador’s and Venezuela’s use cases also illustrate other numerous socio-economic benefits of Bitcoin, such as slowing inflation, enticing crypto entrepreneurs, and increasing financial inclusion of those forgotten by the formal economy.
Legal and Regulatory Challenges
The global landscape of crypto asset regulations is diverse and varies substantially from Country to Country and would require extensive discussion. Nevertheless, its regulation takes an international approach since blockchain technology encompasses peer-to-peer nodes spread across multiple locations, where information and property transcend various laws and territories.
In 2019, and with support from the G20, the FATF (Financial Action Task Force) – the global money laundering and terrorist financing watchdog, issued global, binding standards to prevent the misuse of virtual assets for money laundering and terrorist financing.
The term ‘virtual asset’ refers to any digital representation of value that can be digitally traded, transferred or used for payment. It does not include the digital representation of fiat currencies.
In FATFs second 12-month review of the progress made by national regulators, published in July 2021, the intergovernmental organization stated that “many jurisdictions have continued to make progress” implementing its revised standards — which make so-called Virtual Asset Services Providers (VASPs) subject to anti-money laundering (AML) and counter-terrorism financing (CTF) rules.
Of the 58 out of 128 regulators that have adopted FATFs standards, 52 are now regulating VASPs and six (6) have banned such operators entirely. The other 70 jurisdictions have not yet implemented the revised standards in their national law. These gaps in implementation mean that there is not yet a global regime to prevent the misuse of virtual assets and VASPs for money laundering or terrorist financing.
The mainstream view of Bitcoin being a currency that is anonymous is factually incorrect. Bitcoin transactions are pseudonymous. Since Bitcoin is public and traceable, inevitably there is linking that can occur between transactions. This plainly suggests that Bitcoin is a terrible means to conduct illegal activity because the blockchain evidence trail is permanent. However, there most certainly are a whole new set of cryptocurrency blockchains focusing on being anonymous like Monero, and Zcash amongst others.
Consequently, more countries are gearing towards laying down legislation or tougher regulations to counter the rise of anonymous blockchains due to their prevalence in use as criminal money systems.
Regulatory Gaps
With innovation always being ahead of regulation, there are potential regulatory gaps, which bad actors tend to exploit. This potentially causes certain harms to consumers, including accidental or fraud-related loss of funds or investment in so-called ‘pump and dump’ projects whose only purpose is to increase the wealth of a handful of privileged individuals.
United States of America
In the U.S, the “Howey Test” following SEC v. W. J. Howey Co., 328 U.S. 293 (1946) provides the framework for determining whether certain crypto assets are securities.
The test has four (4) primary components,
- an investment of money,
- in a common enterprise,
- with an expectation of profit,
- solely from the effort of others.
All of these factors must be met for something to be a “security”. So far, there has been unclear interpretation from the relevant Federal Agencies/Departments and Courts as to what Crypto assets are or ought to be but it has been established that profit need not be solely from the effort of others. Undoubtedly, digital assets can be securities if they meet the Howey test.
Most importantly, in the U.S., laws and regulations are made at Federal and State level, which leads to some confusion as two divergent approaches tend to be seen. Some states promote crypto-assets by passing favorable laws, often by exempting cryptocurrencies from state securities laws and/or money transmission statutes. Wyoming for example, recently passed a bill exempting cryptocurrencies from property taxation.
On the other hand, some have not implemented any laws to address cryptocurrency, whereas other states such as New York, Rhode Island, and Arizona have sought to reject cryptocurrency platforms with hostile legislation.
“The Lack of Common-Sense Regulation???”
On 7 July 2021, U.S Senator Elizabeth Warren addressed a letter to the SECs (Securities and Exchange Commission) Chairman, Gary Gensler, giving him until 28 July 2021 to figure out the SECs role and its ability in regulating cryptocurrencies, which has currently left investors and consumers vulnerable to dangers in this “highly opaque and volatile market”.
The letter largely revolves around the increased use of cryptocurrencies and cryptocurrency exchanges, which presented unique risks to consumers and “the lack of common-sense regulations has left ordinary investors at the mercy of manipulators and fraudsters”. Senator Warren outlined that, cryptocurrency exchanges, in particular, lacked the same types of basic regulatory protections as traditional national securities exchanges like the New York Stock Exchange or Nasdaq; and even though they share many features of traditional securities exchanges, cryptocurrency exchanges may be able to escape federal regulation if the digital asset being traded does not qualify as a security under law.
Senator Warren also noted that scams have surged on ‘Decentralized Finance’ (DeFi) platforms in particular, which offer investors higher interest rates and whose developers are often anonymous – making it “easy to carry out ‘rug pulls,’ a scam in which unscrupulous operators raise money for a project, only to abscond with an investors’ funds.”
According to reports, “[f]rom January through April 2021, DeFi fraudsters stole $83.4 million, more than double the haul from all last year. Investors may also be exposed to risks indirectly as publicly traded firms amass their own cryptocurrency holdings.”
Despite expressing some valid concerns, Senator Warren has long been critical of Bitcoin, describing the crypto as “speculative in nature and going to end badly” during a CNBC interview in March 2021. She also took jabs at Bitcoin’s Proof of Work’s environmental cost, pointing out that “…some crypto mining is set up near coal plants, spewing out filth in return for a chance to harvest a few cryptocoins.” As mentioned above, there certainly is ongoing heated debate as to whether Bitcoin actually uses an excessive amount of energy compared to other technologies or monetary systems. Nevertheless, it is evident that Senator Warren’s view is markedly different from Senator Lummis’, who hopes the cryptocurrency industry “grows and is nurtured and used and that regulation is brought up to speed with the financial and technological advancements that Bitcoin brings”
On 15 July 2021, Federal Reserve chairman Jerome Powell said that cryptocurrencies had “completely failed” as a payment system in testimony before the Senate Banking Committee. He said: “…With cryptocurrencies, it’s not that they didn’t aspire to be a payment mechanism, it’s that they completely failed to become one (except for people who desire anonymity, of course, for whatever reason).” In my view, this is another blanket and misinformed assumption from a regulator who has not taken the time nor interest to understand the technology.
Despite the ongoing tensions between cryptocurrency enthusiasts and cynics, some US lawmakers reintroduced a bill to define how federal regulators should treat cryptocurrencies. If signed into law, the Securities Clarity Act would treat digital assets as commodities, not securities, meaning startups would be free to sell and trade cryptocurrencies without having to worry about registering them as securities with the Securities Exchange Commission (SEC).
In any event, the ongoing sparring is healthy in order to reach a reasonable outcome and also to protect consumers and investors from bad actors. However, it also shows that there is a clear demand for decentralized cryptocurrencies. In the premises, it may be safe to say that power brokers are attempting to stifle the ongoing digital disruption because they are not ready to lose control of the highly centralized traditional institutions.
United Kingdom
In the UK, Cryptocurrencies are, generally, outside the regulatory perimeter of the FCA (Financial Conduct Authority). As they are largely unregulated, the FCA concedes that it does not hold significant, relevant data about them.
According to the UK’s FCA (Financial Conduct Authority):
“Exchange tokens currently fall outside the regulatory perimeter. This means that the transferring, buying and selling of these tokens, including the commercial operation of crypto-asset exchanges for exchange tokens, are activities not currently regulated by the FCA. For example, if you are an exchange, and all you do is facilitate transactions of Bitcoins, Ether, Litecoin or other exchange tokens between participants, you are not carrying on a regulated activity.”
To operate in the UK, Cryptocurrency exchanges need to register as VASPs with the FCA – unless they have applied for an e-money (electronic money) license.
UK-based VASPs must additionally adhere to a number of compliance rules. Those include regulations around KYC (Know-Your-Customer), AML (Anti-Money Laundering) and CFT (Combatting the Financing of Terrorism).
In or around January 2021, the FCA banned the offering of crypto derivatives products to retail users in the UK due to a number of inherent risks that the regulatory body believes could negatively affect retail customers of cryptocurrency in the UK. Some of the reasons include extreme volatility in price fluctuations, an inadequate understanding of crypto assets by investors and the lack of a legitimate reason for retail consumers to place investments in virtual assets amongst other things. It also warned: “If consumers invest in these types of products, they should be prepared to lose all their money.”
In June 2021, the FCA announced that public awareness and ownership of cryptocurrency was up to around 2.3 million, up from around 1.9 million in 2020 – and 78% of adults have now heard of cryptocurrencies. The level of understanding of cryptocurrencies is declining, suggesting that some crypto users may not fully understand what they are buying.
The FCA suggested that one in five crypto buyers said they were driven by FOMO (Fear of Missing Out), which is never a good motivation for financial decisions. A similar proportion said “they were buying crypto instead of shares or other investments, which suggests some consumers are leapfrogging traditional assets which can help to build long-term wealth.”
In about the same time, Binance Markets Limited was not permitted to undertake any regulated activity in the UK. This firm is part of a wider Group (Binance Group). According to the FCA, Binance Markets Limited is not currently permitted to undertake any regulated activities without the prior written consent of the FCA. The FCA’s position was that no other entity in the Binance Group holds any form of UK authorization, registration or license to conduct regulated activity in the UK yet it appeared to be offering UK customers a range of products and services via a website, Binance.com.
An industry expert suggested that the Binance Group & Binance Markets Limited withdrew their application to be registered for regulated products by the FCA because of their failure to meet timelines. It was argued that about 90 Companies were awaiting registration whilst the FCA has continued to push back the final registration date many times. However, people in the UK may still purchase products and access Binance in other jurisdictions.
On 15 July 2021, the FCAs CEO, Mr. Nikhil Rathi unveiled the regulator’s 2021 dubbed “Our Role and Business Plan” noting:
“The FCA must continue to become a forward-looking, proactive regulator. One that is tough, assertive, confident, decisive, agile.”
With this new plan the FCA created an 11 million pound ($15.2 million) digital marketing campaign to warn citizens about the risks associated with crypto investments. According to Rathi, FCA is concerned about the increasing adoption of crypto investment among the younger demographic. He said “…more people are seeing investment as entertainment” and that such irrational behavior may lead to significant losses on their part:
“This is a category of consumer that we are not used to engaging with: 18 to 30-year-olds more likely to be drawn in by social media. That’s why we are creating an £11m digital marketing campaign to warn them of the risks.”
These sorts of moves by the FCA underscore the regulator’s rather misguided approach to cryptocurrencies and are testamentary examples of a lack of knowledge of how blockchain solutions and crypto assets work.
It must also be remembered that Satoshi’s vision was to eliminate fraud through decentralized trustless transactions. Fraud and Money laundering has been ever present – unassociated to crypto assets. In fact, the EUs 2021, Global Corruption Barometerestablishes that Business executives and bankers almost tie with national politicians as the most corrupt institutions, and EU residents are concerned about the cozy relationships between business and government – yet Fiat is not banned?
Conclusion
Cryptocurrencies and digital assets are going to be a permanent feature as they have now passed a point of no return in terms of adoption as a store of value, unit of account and medium of exchange. Ultimately, much of the regulation around crypto assets is whether a crypto asset is subject to a particular jurisdiction’s financial regulation or not and involves navigating the applicable legal regime on a case-by-case basis.
Given the shift in the balance between the potential benefits of cryptocurrencies and their costs and risks, it is important to revamp and update the global regulatory framework governing them. A focus on consumer and investor awareness would be a better approach and will heighten transparency and integrity by weeding out bad actors, encourage innovation and enable fair competition in the financial markets rather than capitalizing on propaganda and threat campaigns.
At the end of the day, an individuals’ own knowledge and analyses through research will therefore continue to be the best method of consumer/investor protection.
Author: Brian Sanya Mondoh, Esq.
Barrister, England and Wales (NP) and Attorney at Law, Trinidad and Tobago
Titan Chambers, 19 Dundonald Street, Port of Spain
Co-Founder BLOCK6TY and NXTDIMEN$ION – ‘Empowering Women and Children in Tech’
…
Disclaimer: The information provided in this review does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available in this review are for general informational purposes only. Information in this review may not constitute the most up-to-date legal or other information. Readers of this review should contact their Barrister/Attorney to obtain advice with respect to any particular legal matter.
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