Know Your (Crypto) Customer: Anti-Money Laundering and Crypto Regulation
As volatility in the cryptocurrency market has increased, regulators in the United States and around the world have indicated a willingness to impose tougher compliance requirements related to crypto assets. As a result, there is an increasing likelihood that companies that hold or deal in crypto assets may be subject to additional regulations in the coming years. Specifically, regulators have called on crypto platforms to implement Know-Your-Customer (KYC) rules to ensure compliance with anti-money laundering (AML) rules and regulations. Crypto platforms and other financial services companies should be prepared to meet more substantial compliance obligations as regulators continue to turn their attention to the cryptocurrency space.
With the recent collapse of TerraUSD, a so-called algorithmic stablecoin, the U.S. appears poised to bring a renewed focus to its regulation of the crypto asset sector, including additional regulations to prevent cryptocurrency from being used to support illicit activities. As acting head of the Office of the Comptroller of the Currency, Michael Hsu, stated at a recent event hosted by the Chamber of Digital Commerce: “The recent events in crypto should serve as a wake-up call and an opportunity to reset and to recalibrate the problems the industry is trying to solve.”
One such “problem to be solved” in the crypto space could be the perceived use of crypto assets to evade the AML statutes and regulations currently in place which require financial institutions and others to collect certain information related to the individuals involved in monetary transactions – a framework which would be difficult to enforce in an industry built upon anonymity and decentralization.
Weighing in on the issue of AML in the crypto industry, Carole House, the Director for Cybersecurity and Secure Digital Innovation at the White House’s National Security Division, stated on Tuesday, May 24, 2020 that the lack of “sufficient international regulation on the anti-money laundering front is the greatest vulnerability that the White House has seen that is currently being exploited in the conduct of illicit financing involving cryptocurrency.” To address these insufficiencies, House called on crypto platforms to institute controls to identify users, referred to as KYC rules, which would assist in preventing the use of cryptocurrencies to further criminal activity. These statements follow a March 2022 study by the International Monetary Fund (IMF) which appears to show “crypto-asset usage is significantly and positively associated” with countries perceived as being corrupt or as having strict capital controls. The IMF therefore claims that the study “adds to the case for regulating crypto usage – for example, by requiring intermediaries to implement know-your-customer procedures.”
While certain crypto firms are instituting policies and procedures to ensure that cryptocurrencies are not being used to facilitate illicit activities, Eun Young Choi, Director of the Justice Department’s National Cryptocurrency Enforcement Team, doubled down on the need for increased scrutiny stating that the U.S. needs to see others in the industry “be a little more proactive in certain circumstances.”
These comments from U.S. regulators appear to mirror the calls from Europe to strengthen the need for additional regulation in the crypto space. Robert Kopitsch, Secretary General of Blockchain for Europe, recently stated: “There must be clearly defined regulation for centralized crypto assets and stablecoins.” Mr. Kopitsch’s comments come as the EU is in the final stages of negotiating two new laws to regulate crypto transactions – the Markets in Crypto-assets Regulation (MICA) and a revision of the 2015 Transfer of Funds Regulation, which would mandate the disclosure of payer and payee identities in crypto transactions.
In light of this near-uniform agreement by governments across the spectrum for further regulation of the crypto industry, developers and advocates of crypto are worried about a potential “panic reaction” among lawmakers, following the recent downturn in crypto assets, which could lead to heavy regulation of this burgeoning industry. In fact, major crypto exchanges including Coinbase and Gemini and prominent crypto investors like Andreessen Horowitz have suggested that crypto should be governed by a self-regulatory organization (SRO), such as the Financial Industry Regulatory Authority (FINRA). Proponents of a self-regulating organization argue that such self-regulation could be more nimble in deciding on new rules and products, including whether newly issued tokens should be classified as securities, commodities, or something else.
As this push and pull between policymakers and industry continues, Congress has begun to consider various approaches to regulating the industry. There are a number of competing legislative proposals in both the US House and Senate. For example, Senators Kirsten Gillibrand (D-NY) and Cynthia Lummis (R-WY) are set to propose a bill which would seek to regulate the crypto industry as early as this week. At a recent Consensus 2022 panel, Senator Gillibrand stated that she and Senator Lummis “are truly committed to creating the type of baseline and framework legislation that will allow this industry to grow” and that “the best thing we can do for all these businesses is to bring clarity.” It remains to be seen whether this or any of the other proposals will ultimately move through the legislative process or even become law.
While the debate rages on over the appropriate way to regulate the cryptocurrency industry, or whether such regulation is even appropriate, one thing remains clear: compliance officers and their teams must remain vigilant as this space develops. Buchanan has a coordinated team of attorneys and government relations professionals ready to help your compliance officers and departments continue to navigate these developments.