The SEC, FinCEN And CFTC Issue A Joint Statement On Digital Assets

by Laura Anthony, Esq. on November 05, 2019 in Uncategorized

On October 11, 2019 the SEC, FinCEN and CFTC issued a joint statement on activities involving digital assets.  Various agencies have been consistently working together, with overlapping jurisdiction, on matters involving digital assets and distributed ledger technology.  Earlier, in August, the SEC and FINRA issued a joint statement on the custody of digital assets, including as it relates to broker-dealers and investment advisors (see HERE).

The purpose of the joint statement is 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).  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 (for more information on MSBs see HERE), and broker-dealers and mutual funds obligated to register with the SEC.  The AML/CFT requirements under the BSA include establishing effective processes and procedures, recordkeeping and reporting and filing suspicious activity reports (SARs).

For purposes of the joint statement, “digital assets” include securities, commodities, and security- or commodity-based instruments such as futures or swaps.  The agencies point out that industry participants may use different terminology or assign different meanings to standard terminology.  As such, in determining whether an asset is a “digital asset” the agencies will look to the facts and circumstances, including its economic reality and use, whether intended, organically developed or repurposed.  As I’ve discussed in other blogs, the same analysis is used to determine whether an entity is a financial institution, including a BSA.

Furthermore, the nature of the activities of a person or institution determine what, if any, licenses are needed and regulations that must be complied with.  Some activities would require registration under the Commodity Exchange Act (CEA) and others may require registration as a broker-dealer under the Securities Exchange Act of 1934 (“Exchange Act”).  Although the joint statement only included three agencies, others also oversee digital assets and industry participants.  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 FINRA.

The CFTC added a specific statement that once an entity, such as an introducing broker or futures commission merchant, is licensed or required to be licensed under the CEA, all of their activities would require proper AML/CFT processes and procedures, not just those involving commodities.

FinCEN added a statement discussing its role as the administrator and lead regulator under the BSA.  FinCEN has supervisory and enforcement authority over U.S. financial institutions to ensure the effectiveness of the AML/CFT regime.  In general, entities that are subject to the BSA must: (i) register with FinCEN as a money services business (MSB) or with another agency such as the CFTC or the SEC; (ii) prepare a written AML compliance program that is designed to mitigate risks, including AML risks, and to ensure compliance with all BSA requirements including the filing of suspicious activity reports (SAR) and currency transaction reports; (iii) keep records for certain types of transactions at specific thresholds; and (iv) obtain customer identification information sufficient to comply with the AML program and recordkeeping requirements.  In its statement, FinCEN referenced the guidance it issued in May 2019 and encouraged entities to carefully review the guidance to determine if they qualify as a MSB.  For a review of the guidance, see HERE.

Like the other agencies, the SEC added a statement.  The SEC’s additional statement reminds SEC registered broker-dealers and mutual funds that they are considered financial institutions for purposes of 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, and 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.  Both broker-dealers and mutual funds must enact and comply with AML/CFT policies and procedures for all activities, including as related to digital assets.

Further Reading on DLT/Blockchain and ICOs

For a review of the 2014 case against BTC Trading Corp. for acting as an unlicensed broker-dealer for operating a bitcoin trading platform, see HERE.

For an introduction on distributed ledger technology, including a summary of FINRA’s Report on Distributed Ledger Technology and Implication of Blockchain for the Securities Industry, see HERE.

For a discussion on the Section 21(a) Report on the DAO investigation, statements by the Divisions of Corporation Finance and Enforcement related to the investigative report and the SEC’s Investor Bulletin on ICOs, see HERE.

For a summary of SEC Chief Accountant Wesley R. Bricker’s statements on ICOs and accounting implications, see HERE.

For an update on state-distributed ledger technology and blockchain regulations, see HERE.

For a summary of the SEC and NASAA statements on ICOs and updates on enforcement proceedings as of January 2018, see HERE.

For a summary of the SEC and CFTC joint statements on cryptocurrencies, including The Wall Street Journal op-ed article and information on the International Organization of Securities Commissions statement and warning on ICOs, see HERE.

For a review of the CFTC’s role and position on cryptocurrencies, see HERE.

For a summary of the SEC and CFTC testimony to the United States Senate Committee on Banking Housing and Urban Affairs hearing on “Virtual Currencies: The Oversight Role of the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission,” see HERE.

To learn about SAFTs and the issues with the SAFT investment structure, see HERE.

To learn about the SEC’s position and concerns with crypto-related funds and ETFs, see HERE.

For more information on the SEC’s statements on online trading platforms for cryptocurrencies and more thoughts on the uncertainty and the need for even further guidance in this space, see HERE.

For a discussion of William Hinman’s speech related to ether and bitcoin and guidance in cryptocurrencies in general, see HERE.

For a review of FinCEN’s role in cryptocurrency offerings and money transmitter businesses, see HERE.

For a review of Wyoming’s blockchain legislation, see HERE.

For a review of FINRA’s request for public comment on FinTech in general and blockchain, see HERE.

For my three-part case study on securities tokens, including a discussion of bounty programs and dividend or airdrop offerings, see HERE; HERE and HERE.

For a summary of three recent speeches by SEC Commissioner Hester Peirce, including her views on crypto and blockchain, and the SEC’s denial of a crypto-related fund or ETF, see HERE.

For a review of SEC enforcement-driven guidance on digital asset issuances and trading, see HERE.

For information on the SEC’s FinTech hub, see HERE.

For the SEC’s most recent analysis matrix for digital assets and application of the Howey Test, see HERE.

For FinCEN’s most recent guidance related to cryptocurrency, see HERE.

For a discussion on the enforceability of smart contracts, see HERE.

For a summary of the SEC and FINRA’s joint statement related to the custody of digital assets, see HERE.