Blockchain Week in Review – April 2017 #3

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Below is a summary of some of the significant legal and regulatory actions that occurred over the past week. This alert is not intended to be a comprehensive list of all such developments, but rather a selection of publicly-reported news that may be of particular interest.

U.S. Developments

Regulatory Updates

Nevada Senate Approves Smart Contract Bill

Nevada Senators unanimously supported a bill that would preclude local governments from charging taxes or fees to individuals using the blockchain or smart contract technologies.  Introduced in March, Senate Bill No. 398 defines “blockchain” as “an electronic record created by the use of a decentralized method by multiple parties to verify and store a digital record of transactions which is secured by the use of a cryptographic hash of previous transaction information.”  The proposal also bars local governments from imposing other requirements relating to blockchain use and specifically notes that nothing in the section prohibits a city from “using a blockchain in the performance of its powers or duties.”  The bill now moves to the state Assembly for consideration.  NV SB 398

 New Hampshire’s Bitcoin State Money Transmitter Exemption Goes to the Governor

New Hampshire House Bill 436 is on the governor’s desk for consideration after the senate approved the bill last week.  House Bill 436 creates an exemption to the state’s money transmission requirements for companies that deal solely in convertible virtual currency and creates a definition for “virtual currency.” The house already approved the bill in March.  NH HB 436 History; NH HB 436 Text; Virtual Currency Report (02/03/17).

Washington’s Money Transmitter Bill Becomes Law

On April 18 the governor of Washington signed into law amendments proposed by the Washington Department of Financial Institutions (“DFI”) in December of last year, to the state’s Uniform Money Services Act, including provisions specific to digital currency.  The changes take effect on July 23, 2017.  Virtual Currency Report

Florida Legislature Proposes Bill To Regulate Virtual Currency

Florida lawmakers are considering a bill that will add virtual currencies to the state’s anti-money laundering law.  The bill adds a definition of virtual currency to the state money laundering criminal statute and prohibits laundering of virtual currency.  The bill passed the Civil Justice and Claims Subcommittee in March, and both the Appropriations and Judiciary Committees in April.  HB 1379 text; HB 1379 Status; Virtual Currency Report (03/10/17).

The SEC Announces Plans to Reevaluate Decision Denying Bitcoin ETF

The U.S. Securities and Exchange Commission will review last month’s decision to block the listing of the first U.S. exchange-traded fund tracking digital currency bitcoin.  SEC Order Granting Petition for Review and Scheduling Filing of Statements; Virtual Currency Report 3/10/17.

Litigation Updates

CSBS Files Complaint Against the OCC

This week, the Conference of State Bank Supervisors (“CSBS”) filed a complaint requesting declaratory and injunctive relief from the Office of the Comptroller (“OCC”) for the OCC’s efforts to offer national special purpose charters to fintech companies. The CSBS claims that the OCC has gone “far beyond” the limited authority granted to it by the National Bank Charter and other federal banking charters.  And the CSBS requests the court to declare that the OCC lacks statutory authority to create the special purpose national bank charters to Fintech companies and  to set aside the OCC’s Nonbank Charter decision, among other requested relief. Complaint

Comptroller of the Currency, Thomas Curry, defended the OCC’s actions Friday in an address at the Fintech and the Future of Finance Conference at Northwestern University.  Curry explained that banking is not a “static” business and warned that treating banking as such would likely stifle innovation. Curry noted that the OCC is “open to responsible innovation” without compromising the integrity of the banking system.  Curry Remarks; American Banker Article.

Two Virtual Currency Exchangers’ Guilty Pleas to Criminal Charges for Failure to Register with FinCEN are Upheld

Two men in Louisiana entered guilty pleas last spring after their 2015 indictment for conspiracy to operate an unlicensed money service business in violation of 18 U.S.C. § 371.  Virtual Currency Report (04/29/2016).  In 2013, the defendants began operating a business that accepted cash, credit card payments, and other forms of payment in exchange for bitcoin.  The defendants operated their bitcoin business through a website, where they also posted advertisements for bitcoin exchange services.  They formed several LLCs and used accounts associated with other businesses to conduct this exchange.  The licensed bitcoin exchange that the defendants used to purchase the bitcoin they would eventually resell, informed the defendants of their obligation to register with FinCEN.  The defendants represented that they were registered with FinCEN, but did not register for several months after the warning.  A federal judge in Louisiana denied the defendants’ request to withdraw their guilty pleas this week.  Case 5:15-cr-00240-SMH-MLH (Doc. 59).

Fintech Updates

Extension Granted on Prepaid Account Rule

The CFPB issued a final rule governing prepaid accounts, which delayed the effective date by six months.  The new effective date for the prepaid account rule is April 1, 2018.  The CFPB has announced plans to revisit “at least two substantive issues in the prepaid accounts rule through a separate notice and comment rulemaking process.”  The CFPB expects to release the new proposal in the coming weeks.  Final Rule; CFPB Announcement.

GAO Issues Report on Fintech

The U.S. Government Accountability Office (“GAO” or the “Office”) recently published its study related to the financial technology (“fintech”) industry. Members of Congress (Hon. Sherrod Brown, Hon. Jeanne Shaheen, and Hon. Jeffrey A. Merkley) asked the GAO to review a number of issues related to the fintech industry including how fintech products and services are regulated.  The GAO does not make any recommendations in this initial report, but the Office plans to issue a series of reports on fintech addressing four common subsectors of fintech (marketplace lenders, mobile payments, digital wealth management platforms, and distributed ledger technology) and each subsector’s regulatory oversight. This initial report attempts to define each subsector, explain how it works, who uses it, benefits and risks, industry trends, and regulation and oversight.  The GAO provided a draft of the report for review and comment to the CFPB, CFTC, CSBS, FDIC, the Federal Reserve, FINRA, FTC, NCUA, OCC, SBA, SEC, and Treasury.  The Office incorporated technical comments from these agencies as appropriate.  The GAO conducted this study from July 2016 to April 2017 in accordance with generally accepted government auditing standards.  The GAO reported, as an example, that depending on services provided a marketplace lender may be subject to: federal regulation (e.g., Federal Reserve, FDIC, OCC), state licensing and regulation, securities offering registration (e.g., SEC), and/or enforcement actions (e.g., CFPB, FTC).  The GAO noted that each subsector’s regulation depends on (1) the extent to which the firms provide a regulated service and (2) the format in which the services are provided.GAO Report to Congress on Financial Technology; GAO Report Highlights.

International Developments
Japan Commits to Advancing Payment and Settlement Infrastructures  

This week, Hiroshi Nakaso, Deputy Governor of the Bank of Japan (“BOJ”), gave remarks at the Forum Towards Making Effective Use of the BOJ-NET.  In his address, Nakaso explored the history of payment and settlement systems as a core of central banking.  Nakaso explained the steps the BOJ has already taken towards globalization and innovation of payment and settlement systems.  He also addressed the needs he sees for the future: “we should try to grasp the possible impacts of new technologies, such as blockchain and distributed ledger technology, on payment and settlement infrastructures including central bank payment and settlement systems.”  In closing, Nakaso encouraged continued dialogue with Japan’s constituents and expressed the BOJ’s commitment to making the “utmost efforts to advance our payment and settlement infrastructures with the changes in the economic environments in order to provide the optimum functions.”  Nakaso Address (04/21/2014).

Malta Announces National Plans for Bitcoin

Malta’s Cabinet reportedly approved a first draft of the national strategy to promote bitcoin and blockchain technology following its Prime Minister’s proposal for the European Union to become the “Bitcoin continent.”  Prime Minister Joseph Muscat called for the EU to maximize the potential of bitcoin and stated, “We must be on the frontline in embracing blockchain and Bitcoin . . . we must be the ones that others copy.”  Maltese officials are in support and have committed to adopting the right innovation, legal, and regulatory framework that would attract investors to come to Malta.  Malta Today.

For a comprehensive list of developments please see our Virtual Currencies: International Actions and Regulations.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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