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Joint Statement on Digital Assets from CFTC, SEC and FinCEN – a Warning to the Crypto Industry regarding Anti-Money Laundering and Countering the Financing of Terrorism Obligations

The leaders of the U.S. Commodity Futures Trading Commission, the Financial Crimes Enforcement Network, and the U.S. Securities and Exchange Commission (the “Agencies”) issued a joint statement to remind persons engaged in activities involving digital assets of their anti-money laundering and countering the financing of terrorism (AML/CFT) obligations under the Bank Secrecy Act (BSA). This joint statement provides further clarity on some of the many laws potentially applicable to crypto currency and other digital assets and highlights the need for anyone operating in the space to obtain legal advice to understand their legal compliance obligations. According to the statement, AML/CFT obligations apply to entities that the BSA defines as “financial institutions,” such as futures commission merchants and introducing brokers obligated to register with the CFTC, money services businesses (MSBs) as defined by FinCEN, and broker-dealers and mutual funds obligated to register with the SEC.  Among those AML/CFT obligations are the requirement to establish and implement an effective anti-money laundering program (AML Program and recordkeeping and reporting requirements, including suspicious activity reporting (SAR) requirements.)

For the purpose of this joint statement, “digital assets” include instruments that may qualify under applicable U.S. laws as securities, commodities, and security-or commodity-based instruments such as futures or swaps.  The label or terminology used to describe a digital asset or a person engaging in or providing financial activities or services involving a digital asset, however, may not necessarily align with how that asset, activity or service is defined under the BSA, or under the laws and rules administered by the CFTC and the SEC.  For example, something referred to as an “exchange” in a market for digital assets may or may not also qualify as an “exchange” as that term is used under the federal securities laws.  As such, regardless of the label or terminology that market participants may use, or the level or type of technology employed, it is the facts and circumstances underlying an asset, activity or service, including its economic reality and use (whether intended or organically developed or repurposed), that determines the general categorization of an asset, the specific regulatory treatment of the activity involving the asset, and whether the persons involved are “financial institutions” for purposes of the BSA.

The nature of the digital asset-related activities a person engages in is a key factor in determining whether and how that person must register with the CFTC, FinCEN, or the SEC.  For example, certain “commodity”-related activities may trigger registration and other obligations under the Commodity Exchange Act (CEA), while certain activities involving a “security” may trigger registration and other obligations under the federal securities laws.  If a person falls under the definition of a “financial institution,” its AML/CFT activities will be overseen for BSA purposes by one or more of the Agencies (and potentially others).  For example, the AML/CFT activities of a futures commission merchant will be overseen by the CFTC, FinCEN, and the National Futures Association (NFA); those of an MSB will be overseen by FinCEN; and those of a broker-dealer in securities will be overseen by the SEC, FinCEN and a self-regulatory organization, primarily the Financial Industry Regulatory Authority (FINRA).

Certain BSA obligations that apply to a broker-dealer in securities, mutual fund, futures commission merchant, or introducing broker, such as developing an AML Program or reporting suspicious activity, apply very broadly and without regard to whether the particular transaction at issue involves a “security” or a “commodity” as those terms are defined under the federal securities laws or the CEA.

Each of the agencies offered some additional comments:

  • The CFTC Chairman added: the mission of the CFTC is to promote the integrity, resilience, and vibrancy of the U.S. derivatives markets through sound regulation.  In advancing that mission, the CFTC regulates key participants in the derivatives markets, including boards of trade, futures commission merchants, introducing brokers, swaps dealers, major swap participants, retail foreign exchange dealers, commodity pool operators, and commodity trading advisors pursuant to the CEA.  An “introducing broker” or “futures commission merchant” is defined in BSA regulations as a person that is registered or required to register as an introducing broker or futures commission merchant under the CEA. Introducing brokers and futures commission merchants are required to report suspicious activity and implement reasonably-designed AML Programs.  These requirements are not limited in their application to activities in which digital assets qualify as commodities or are used as derivatives.  The rules would also apply to activities that are not subject to regulation under the CEA.

  • The Financial Crimes Enforcement Network Director added: FinCEN is the administrator of and lead regulator under the BSA — the nation’s first and most comprehensive AML/ CFT statute.  FinCEN’s mission is to protect our financial system from illicit use, ensure our national security, and protect our people from harm.  FinCEN has supervisory and enforcement authority over U.S. financial institutions to ensure the effectiveness of the AML/CFT regime.  As such FinCEN mandates certain controls, reporting, and recordkeeping obligations for U.S. financial institutions.  The BSA and its implementing regulations set forth the regulatory obligations that generally apply to financial institutions, including AML Program, recordkeeping, and reporting requirements. FinCEN regulates, among other persons, money transmitters and other MSBs.  FinCEN’s BSA regulations define a “money transmitter” as a person engaged in the business of providing money transmission services or any other person engaged as a business in the transfer of funds.   The term “money transmission services” means “the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means. In May 2019, FinCEN issued interpretive guidance to remind persons subject to the BSA how FinCEN regulations relating to MSBs apply to certain business models involving money transmission denominated in value that substitutes for currency, specifically, convertible virtual currencies.  Covered persons and institutions are strongly encouraged to review the 2019 CVC Guidance.  As set forth in the 2019 CVC Guidance, a number of digital asset-related activities qualify a person as an MSB that would be regulated by FinCEN.  FinCEN’s BSA regulations also provide that any person “registered with, and functionally regulated or examined by, the SEC or the CFTC, would not be subject to the BSA obligations applicable to MSBs, but instead would be subject to the BSA obligations of such a type of regulated entity.  Accordingly, even if an introducing broker, futures commission merchant, broker-dealer or mutual fund acts as an exchanger of digital assets and provides money transmission services for the purposes of the BSA, it would not qualify as a money transmitter or any other category of MSB and would not be subject to BSA requirements that are applicable only to MSBs.  Instead, these persons would be subject to FinCEN’s regulations applicable to introducing brokers, futures commission merchants, broker-dealers and mutual funds, respectively.  These obligations include the development of an AML program and suspicious activity reporting requirements, as well as requirements under applicable CFTC or SEC rules.  Furthermore, regardless of federal functional regulator, all financial institutions dealing in digital assets meeting the definition of “securities” under federal law must comply with federal securities law.

  • The SEC Chairman added: The statutory mission of the SEC is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.  In general, the SEC has jurisdiction over securities and securities-related conduct.  Persons engaged in activities involving digital assets that are securities have registration or other statutory or regulatory obligations under the federal securities laws. The SEC oversees the key participants in the securities markets, some of which may engage in digital asset activities.  Key participants in the securities markets include but are not limited to national securities exchanges, securities brokers and dealers, investment advisers, and investment companies.  Market participants receiving payments or engaging in other transactions in digital assets should consider such transactions to present similar or additional risks, including AML/CFT risks, as are presented by transactions in cash and cash equivalents.  With regard to SEC regulated entities, broker-dealers and mutual funds are defined as “financial institutions” in rules implementing the BSA.  A “broker-dealer” is defined in rules implementing the BSA as a person that is registered or required to register as a broker or dealer under the Securities Exchange Act, while a “mutual fund” is defined as an investment company that is an “open-end company” and that is registered or required to register under the Investment Company Act of 1940. Broker-dealers and mutual funds are required to implement reasonably-designed AML Programs and report suspicious activity.  These rules are not limited in their application to activities involving digital assets that are “securities” under the federal securities laws.

This statement is one of the most comprehensive joint agency statements on the BSA and related AML/CFT issues targeted at the crypto currency and digital currency industry and the many types of players that participate therein. To the extent you are not already compliant in your obligations, now would be a good time to do so.

 

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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James Mattinson Blockchain Technology and Digital Currency Lawyer Sheppard Mullin Washington DC
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Jim Gatto is a partner in the Intellectual Property Practice Group in the firm's Washington, D.C. office. He is also Co-Team Leader of the firm's Digital Media Industry and Social Media and Games Industry Teams, Blockchain Technology and Digital Currency team, and Team Leader of the firm's Open Source Team. 

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Mr. Gatto leverages his unique combination of nearly 30 years of IP experience, business insights and attention to technology trends to help companies develop IP and other legal...

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