The problem with regulating cryptocurrency. Like any currency, it is speech. Why regulate its movement?

Currency is more than just paper authorized by the government to be put in circulation around a country. Currency says something about the value of the issuer. A currency tells its holder that the issuer brings to the market a level of economic value. That value is captured in the goods the issuer produces. The value is reflected in the laws that protect the markets within which the products are bought and sold. Currency communicates a message as to how well its underlying economy is doing and the prices paid for currency reflect how well these messages are received by other countries and potential holders.

Currency is speech …

The United States, by law, puts restraints on its government by a constitutional requirement that its Congress make no law “abridging the freedom of speech.” Article 19 of the United Nation’s Universal Declaration of Human Rights provides that:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

And I would argue that currency is such a medium for conveying information and ideas. As discussed prior, it conveys information, thoughts, ideas about its underlying economy. Its use tells us that someone has decided to use it as a store of wealth, as a unit of account, and is willing to use it as a medium of exchange for the aforementioned reasons.

Cryptocurrency does the same thing that the paper currency we are used to does. Rather than an analog-based paper currency, crypto is digital created and transmitted or exchanged digitally. The information it conveys is written in encrypted code. Unlike paper currency, cryptocurrency is not yet accepted as ready for prime time even though recent moves by individuals e.g., Elon Musk tweeting support for bitcoin and Dogecoin; corporations e.g., Subway accepting bitcoin as payment for sandwiches; and investment banks, e.g., Goldman Sachs starting a bitcoin trading desk, indicate investors are warming to the idea of cryptocurrency as a store of value or even a medium of account.

It is taking a little longer for the public to see bitcoin as a medium of exchange. The general public has to get its head around the idea that a sandwich can be bought with bitcoin or services rendered can be compensated with Ethereum. When it comes to mainstream use as a medium of exchange, the speech we are hearing is more like the babbling of an 18-month old, but we are reminded that the leap from toddler chat to adult yak and the move from cowry shells to paper currency was eventually made.

In the meantime, I believe that proponents should head off increased regulation of cryptocurrency by making the argument to regulators such as the Commodity Futures Trading Commission, the Securities and Exchange Commission, and the U.S. Treasury with the speech argument for starters. Individuals should be able to convey how they value their wealth by being able to finance and trade cryptocurrency. Currency is merely a medium and just like the American broadcast and communications systems have abandoned analog and have embraced digital for its flexibility and data capacity, so too should the American public by embracing crypto as a way to express wealth, value, and economy.

How the regulator’s mindset may impact cryptocurrency …

An article today in Bloomberg discussing how a Biden administration would address the regulation of cryptocurrency has me putting myself in the place of the regulator. What is the U.S. Securities and Exchange Commission’s world view of digital assets? How will the Commodity Futures Trading Commission’s view toward regulation of exchanges evolve? Will the Board of Governors of the Federal Reserve System view the payment system aspect of cryptocurrency as a threat to the current national and global payment system regime or as a welcome supplement that brings more efficiency and transparency?

Clarity on what may happen on the regulatory side of cryptocurrency requires that the trader first take a top-down view of how governments view the world and especially how they view markets. You will never hear a regulator utter the term “free markets.” That phrase is best suited for the rhetoric of politicians who inherit worn out campaign slogans and reboot them for the latest run for office. I doubt they themselves, a significant number of whom are not trained in economics, truly understand what a market is or can likely identify threats to it. Compound markets for digital assets with the mechanics of payment systems and the politician’s eyes glaze over and she falls back to what she knows best: sloganeering tainted with tropes that appeal to individualism, consumerism, collectivism, or whatever narrative they believe their constituency will buy into.

The professional regulator, on the other hand, uses law and regulatory code as a front or an excuse. Statutes and codes give the professional regulator cover for their underlying philosophy and narrative. Unlike the elected official who only spends minutes on issues of markets and their regulation, the professional regulator is the expert spending years developing her own philosophy and transitive narrative and reconciling that philosophy and narrative with at times archaic statutes that the elected official has dumped on her to interpret. With archaic statutes and codes as cover for the regulator, it is the trader’s task not only to generate returns from holding a digital asset but to best understand what that regulator’s philosophy is.

There are two types of regulator. One I term as the myopic regulator. This regulator focuses on the black letter of the law and the code. Their focus is primarily on whether the market participants are following the rules on the books. He does not take into consideration any wider view of the philosophy behind markets and regulation. If the rules are skewed more to trader protection, his interest will be in outcomes that favor trader protection. If the rules skew more toward brokerage or platform protection, the regulator’s interest will be in outcomes favoring platform protection.

On the other side is what I term the universal regulator. They have managed to synthesize the role of government, traders, and platforms. They have an interest in maintaining the viability of the market system. Government’s role, in their view, is to provide for an efficient and productive trading post where there is sufficient transparency between traders and where the exchange platform ensures speed, efficiency, and clarity of trade because without these characteristics, the American markets as a whole become less viable, less reliable. Government will expand or contract in order to meet its universal role.

The trader should be mindful of this regulatory environment, particularly the tug-of-war between more or less regulation of exchanges. Eventually the trader pays the price in terms of transparency, price fairness, and the level of fees, especially where trade is her primary means of livelihood and income. After all, trade boils down to an information game and staying informed on government actions as well as on how government itself can disrupt information flow is important to the trader’s success.

The “Ripple” effects of non-disclosure per the SEC …

FOR IMMEDIATE RELEASE
2020-338

Washington D.C., Dec. 22, 2020 —

The Securities and Exchange Commission announced today that it has filed an action against Ripple Labs Inc. and two of its executives, who are also significant security holders, alleging that they raised over $1.3 billion through an unregistered, ongoing digital asset securities offering.

According to the SEC’s complaint, Ripple; Christian Larsen, the company’s co-founder, executive chairman of its board, and former CEO; and Bradley Garlinghouse, the company’s current CEO, raised capital to finance the company’s business. The complaint alleges that Ripple raised funds, beginning in 2013, through the sale of digital assets known as XRP in an unregistered securities offering to investors in the U.S. and worldwide. Ripple also allegedly distributed billions of XRP in exchange for non-cash consideration, such as labor and market-making services. According to the complaint, in addition to structuring and promoting the XRP sales used to finance the company’s business, Larsen and Garlinghouse also effected personal unregistered sales of XRP totaling approximately $600 million. The complaint alleges that the defendants failed to register their offers and sales of XRP or satisfy any exemption from registration, in violation of the registration provisions of the federal securities laws.

“Issuers seeking the benefits of a public offering, including access to retail investors, broad distribution and a secondary trading market, must comply with the federal securities laws that require registration of offerings unless an exemption from registration applies,” said Stephanie Avakian, Director of the SEC’s Enforcement Division. “We allege that Ripple, Larsen, and Garlinghouse failed to register their ongoing offer and sale of billions of XRP to retail investors, which deprived potential purchasers of adequate disclosures about XRP and Ripple’s business and other important long-standing protections that are fundamental to our robust public market system.”

“The registration requirements are designed to ensure that potential investors – including, importantly, retail investors – receive important information about an issuer’s business operations and financial condition,” said Marc P. Berger, Deputy Director of the SEC’s Enforcement Division. “Here, we allege that Ripple and its executives failed over a period of years to satisfy these core investor protection provisions, and as a result investors lacked information to which they were entitled.”

The SEC’s complaint, filed today in federal district court in Manhattan, charges defendants with violating the registration provisions of the Securities Act of 1933, and seeks injunctive relief, disgorgement with prejudgment interest, and civil penalties.

The SEC’s investigation was conducted by Daphna A. Waxman, Jon A. Daniels, and John O. Enright of the SEC’s Cyber Unit. The case is being supervised by Kristina Littman, Chief of the SEC Enforcement Division’s Cyber Unit. The SEC’s litigation will be conducted by Jorge G. Tenreiro, Dugan Bliss, Ms. Waxman, and Mr. Daniels, and supervised by Preethi Krishnamurthy.

###