The question of how to regulate cryptocurrencies, and by extension cryptocurrency exchanges, is getting heated.
Securities and Exchange Commission (SEC) Chair Gary Gensler has been regularly hinting that exchanges such as Coinbase should be registering with the SEC because they offer “dozens of tokens that may be securities.” A frustrated Brian Armstrong, Coinbase’s CEO, has accused the SEC of “sketchy behavior” and is planning to publish his own advice on how authorities should regulate crypto.
Up north in Canada, all is quiet. The debate over whether cryptocurrency exchanges need to register with Canada’s version of the SEC has already been settled. In a March 2021 notice, the Canadian Securities Administrators confirmed that crypto exchanges do need to be registered with a securities regulator. Exchanges that want to keep serving Canadians are rushing to comply.
Given how excruciatingly vague the status of cryptocurrency regulation remains in the U.S., it’s striking how Canada’s version of the SEC has been able to bring rapid clarity to the issue. Is it possible that countries casting around for a definitive solution to regulating cryptocurrency exchanges adopt the Canadian blueprint?
You probably list some securities, so get regulated
If tokens are securities, and Kraken and Coinbase list them, then Kraken and Coinbase are securities exchanges and they must register with the SEC. Delisting security tokens like XRP is how exchanges like Kraken and Coinbase avoid the registration requirement.
But what about shibu inu, dogecoin, USDC or the thousands of other tokens? Are they securities?
Divining the security-or-not status of a token seems to be more art than science. It rests on how lawyers interpret the SEC’s definition of security, which includes a long list of instruments like notes, stocks, bonds, investment contract, fractional undivided interest and more. Esoteric U.S. Supreme Court cases such as SEC v. W. J. Howey and Reves v. Ernst & Young provide extra levels of legal detail on what it precisely means to be an “investment contract” or a “note.”
Now, perhaps SEC officials could comb through every one of the thousands of crypto tokens created over the last 12 years and make a list of which of them are securities or not. And then Coinbase and Kraken could delist everything that the SEC says is a security and thus avoid SEC registration requirements.
But in his recent public pronouncements, SEC Chair Gensler has taken a less helpful approach. It goes a bit like this: “Coinbase, you list 300 tokens, and odds are that a bunch of them are securities (we’re not going to say which), so you should register with the SEC anyways.”
Not your keys, not your coins (and definitely a security)
If Gensler’s approach to pulling crypto exchanges under the ambit of securities law seems oblique and vague, the Canadian Securities Administrators (CSA) has taken a much more direct approach. The CSA is an umbrella organization for Canada’s provincial and territorial securities regulators, the biggest of which is the Ontario Securities Commission (OSC).
To bring Coinbase and Kraken under the jurisdiction of securities law, the CSA has created a new catch-all term: a crypto contract. Crypto contracts are securities, and because Coinbase and Kraken offer them these platforms come under the ambit of Canadian securities law.
Let me explain a bit more.
Pretty much everyone (including Canada’s regulators) agree that bitcoin is not a security. But according to the CSA, the bitcoin that a Coinbase client holds in their Coinbase account isn’t actually bitcoin. It is a contractual right or claim to underlying bitcoin, or as the CSA terms it, a crypto contract. Furthermore, the CSA deems all crypto contracts to be securities, even if the underlying crypto, say bitcoin, isn’t itself a security. Since Coinbase and other exchanges deal in crypto contracts and offer a marketplace for them, they must register with one of Canada’s provincial securities regulators.
This approach is remarkably different from the U.S. In the words of law professor Ryan Clements, the CSA’s assertion about crypto contracts is one that “no other international securities regulator has yet taken.”
The CSA’s list of requirements is long and demanding (see Appendix B of this document). Canadian exchanges and dealers, a category that now includes Coinbase, must abide by a set of universal market integrity requirements that cover things like abusive trading, front running, client priority, and more. Coinbase would be required to consider appropriateness and suitability when dealing with clients. And that’s just a sample.
But Canadian cryptocurrency venues such as Wealthsimple and Coinberry have fallen into line. And they don’t seem too salty about it, either. Coinberry’s CEO Andrei Poliakov has welcomed the CSA’s “measured” regulations as an “end to the ‘wild west’ of cryptocurrency in Canada.”
You can see why regulation would be welcome up north. Canadians were collectively stunned by the collapse of local cryptocurrency exchange QuadrigaCX, which at the time was Canada’s largest. Regulation is seen by all parties – customers, regulators, and cryptocurrency businesses – as a way to purge Canada of future crypto awfulness.
Will large U.S. exchanges like Kraken and Coinbase that serve Canadians choose to comply with Canadian securities laws?
Kraken has long disputed Canada’s assertion that a Kraken customers’ bitcoin balances are a type of Kraken IOU, and thus a security. In a 2019 letter to Canadian securities regulators, Kraken’s lawyers likened Kraken to a “bailee;” that is, in the same way the provider of a safety deposit box doesn’t take title to the box’s contents, Kraken doesn’t take title to the customer’s bitcoins. And so Kraken is offering a service, namely storage, and not a security.
But Canadian regulators never bought Kraken’s claim. The CSA has taken the old bitcoin maxim “not your keys not your bitcoin” to heart and ruled that crypto held at a platform like Kraken is not true crypto, but a contract for crypto.
It remains to be seen if any of the big U.S. crypto exchanges will go to court to defend what they see as their bailee business model against the CSA’s concept of a “crypto contracts.” That would mean wading into Canadian securities law, which like its U.S. cousin boasts a long list of bewildering instruments that are defined to be securities, including the amorphous “investment contract” category. (Whereas the U.S. relies on Howey to define what an investment contract is, Canada has Pacific Coin vs the OSC.)
Or maybe Coinbase and Kraken will just suck it up and comply with CSA guidance.
From the perspective of consumers, I’d argue the Canadian approach makes a lot of sense.
Coinbase may not be regulated by the SEC, but it does operate under a specific U.S. regulatory framework. It holds 43 different money transmitter licenses, each one issued by a state financial department.
This is a strange fit, though. State money transmittal law is geared towards regulating remittance companies like Western Union or MoneyGram. Coinbase is very different from Western Union. It facilitates billions of dollars worth of trading each day, rivaling large, regulated securities exchanges such as the Toronto Stock Exchange, NYSE American, and the Nasdaq BX. It’s not apparent how a supervisory official who oversees remittance agents is equipped to deal with an international trading platform.
By contrast, the Canadian approach says that if you are a payments company like Western Union, then you’ll be regulated like a payments company. And if you are an exchange like Coinbase, you can’t pass as a payments company for regulatory purposes. You’re going to fall under securities law because that’s the most appropriate regulatory category for you and your customers.
Whether Canada’s approach to crypto regulation becomes another export to the U.S., along with maple syrup or hockey, remains to be seen. But you can be sure that Gary Gensler is watching and pondering the idea of crypto contracts.
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