As the blockchain community grapples with the fallout from recent regulatory actions, legal experts are warning more enforcement measures could be on the horizon – and that token exchanges are a probable target.
To recap, last week saw the U.S. Securities and Exchange Commission (SEC) rule that a defunct blockchain-based token called The DAO constituted an unregistered security. Just hours later, the Department of Justice and the Financial Crimes Enforcement Network (FinCEN) levied a $110 million penalty against BTC-e and arrested one of its founders – actions that struck an exchange that had long openly flouted the law.
The timing seemed hardly a coincidence, and at a blockchain industry conference in Washington, D.C., on Friday, Carol Van Cleef, a fintech attorney at Baker Hostetler, affirmed that she believes the two events are likely to be closely linked.
Van Cleef told the audience:
"These were not isolated events. This was a rather carefully coordinated governmental action. I am absolutely certain that the timing of the release of the [SEC] investigative report was intentional. The SEC wanted to have it out there."
Of particular note is that the SEC's ruling went so far as to state that trading platforms are specifically "not exempt" from securities regulations.
Taken in conjunction with the recent shutdowns of the AlphaBay and Hansa dark web marketplaces, Van Cleef said, the actions suggest that U.S. authorities are taking a much closer look at cryptocurrencies and are becoming better at coordinating inter-agency efforts with regard to enforcement.
Also speaking at the event was Jerry Brito, executive director of non-profit industry advocacy group Coin Center, who noted that a key component of the SEC report was its focus on the secondary exchanges that trade the tokens after an initial coin offering, or ICO, concludes.
"These tokens, once the offering has happened, are trading on secondary markets. And if ICOs are securities, and there are markets that allow for the trading of securities, those are securities markets that need to be registered with the SEC and comply," he said.
Brito said that the ruling amounted to a "warning shot" to exchanges that trade ICO tokens, and suggested that a further crackdown on these exchanges is plausible, if not likely.
"I think that, to the extent that there will be an enforcement action in the future, I could imagine the SEC – rather than going ICO by ICO – just going after a couple of the exchanges that may be providing the liquidity," he said.
Drew Hinkes, an attorney with Berger Singerman in Fort Lauderdale, suggested that consumers and traders should "be wary" of third-party exchanges that have not registered with the SEC.
He said that, to the best of his knowledge, few, if any, have yet done so:
"Third-party exchanges are the engine that make the ICO economy run, and if you see them go down, you may not just lose all of your holdings but you may actually see the ICO markets crater as well."
Following the trail
Also on display was the belief that these actions would now be easier for U.S. agencies, now that some enforcement actions have been taken.
Van Cleef, for instance, noted that the action against BTC-e, which also included a $12 million fine handed down to its alleged founder, had distinct characteristics linking it back to earlier cases such as Silk Road and collapsed exchange Mt Gox.
"Once the investigations start, there is a treasure trove in every place that leads to another treasure trove of data, and you could see that winding through the BTC-e indictment."
What's notable is that FinCEN enforcement orders like the one levied against BTC-e are almost always arrived at via negotiation by all parties involved. Yet, Van Cleef emphasized that this wasn't the case here – implying that the government was intentionally sending a louder-than-normal warning shot.
"There was no negotiation. There was probably no conversation in advance of this action," she said, emphasizing that the criminal statute in play was that of operating as an unregistered money service business without being licensed as a money transmitter.
"The message to take away from this is ... if you touch U.S. residents and do business with them, you are required to be registered as money service business with FinCEN."
At the D.C. event, speakers agreed that companies or individuals engaging in the issuance or trading of ICO tokens should be extra cautious – irrespective of the form of the token in question.
"I would not count on lightning not striking twice. If you do something flagrant, I would not count on the SEC to keep their hands off," Hinkes said.
In this way, Hinkes sought to call upon entrepreneurs who are enticed by the novel funding method to think twice before pursuing a token offering.
Already, the funding method has come under scrutiny, even within the industry, with technologists citing the early stage nature of blockchains, and lawyers long cautioning against the sometimes cavalier embrace of the possibilities of ICOs.
"If people are contributing money to a venture and folks are expecting a return in some form, you might have a security and you should absolutely consult with counsel."
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