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US Crypto: 2020 Year in Review

HSE | Sarah H. Brennan | Jan 9, 2021

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2020 US Summary

If we put the last quarter of 2020 aside, this year could be marked by the sheer number of SEC enforcement actions and settlements in the crypto space, with more rumored to be in the works. However, the U.S. ended 2020 with a bang in the form of a flurry of proposed crypto regulations in Q4 with varying degrees of controversiality. Notably, the proposed STABLE Act and Mnuchin's midnight rulemaking on self-custody have caused a bit of an uproar, which we touch on in more depth below.

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Absent these recent rulemakings, there has been an unevenness in the Trump administration’s approach to the space and the last four years at the federal level haven’t been marked with any significant level of regulatory coordination or cohesive policy at the federal level.

However, to pick upon some themes that we will talk about in this year-end review, regulators have vacillated between: (i) a focus on enforcement vs. prescriptive guidance, (ii) a tech specific vs. tech agnostic approach, (iii) aggressive views of jurisdictional reach vs. deference, and (iv) state, federal, and global coordination and cooperation vs. a more insular agency-specific approach.

These last minute rulemakings marked the last acts of an administration with what could be characterized as an ambivalent view of the crypto space, neither friendly nor particularly enabling. Although the IRS 2014 guidance (Notice 2014-2) classifying cryptocurrency as property was pivotal in pushing the predominant use case (use case follows tax treatment) for Bitcoin and other currency-like crypto assets toward a commodity-like store of value as opposed to a medium of exchange (think gold bar as opposed to dollar bill), other U.S. regulators have doubled down on labeling, and regulating, crypto as a currency-like instrument, among other things.

With Bitcoin crossing $34,000 to hit an all-time high (“ATH”) in early January, Ethereum's native cryptocurrency, Ether (“ETH”), trending close to its ATH from 2018  and the  proliferation of stablecoin projects, the U.S. government may now be rethinking previous pronouncements that crypto does not pose a significant threat to the U.S.’s fiat hegemony worthy of addressing.

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The most activity on this front is taking place at the U.S. Department of the Treasury, and the Financial Crimes Enforcement Network of the U.S. Treasury (“FinCEN”) (see proposed rulemakings here and as discussed below)  as well as Department of Justice (“DOJ”) (see the DOJ Enforcement Framework released in October 2020), as U.S. authorities continue to bring anti-money laundering (“AML”) compliance, sanctions compliance, and terrorist financing concerns to the forefront.

We have also seen significant enforcement actions against BitMEX as discussed below, John McAfee’s arrest for tax evasion related in part to his activities in crypto and the recently announced settlement between the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and BitGo, Inc. for violations of sanctions programs.

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