U.S. crypto companies are at the crossroads of regulation

Congress had some vague language within its languishing infrastructure bill to manage crypto, but that bill is not certain to pass both houses. Meanwhile, the White House is considering an expansive executive order that seeks to divvy up oversight of encrypted digital assets across various agencies of the executive wing. That order would also appoint a single regulatory ringmaster to lead the crypto circus.

This week, the first Bitcoin futures exchange-traded fund (ETF) was made available to U.S. investors. The first firm to secure clearance, ProShares, made its initial application to the SEC back in early August and recently filed its amended prospectus­–completing the necessary regulatory requirements for listing. 

It’s worth noting that this ETF application was made under the Investment Act of 1940 and is linked to current Bitcoin futures trading on the Chicago Mercantile Exchange (CME). That’s because Bitcoin has been available for futures trading on the CME since 2017, and Bitcoin options trading on the CME began in 2019. This suggests that the SEC seems to prefer well-worn paths rather than blazing new trails.

It’s a bit ironic that the first Bitcoin ETF approval needed to comply with a piece of legislation that’s more than 80 years old. The irony gets thicker when you consider that a Bitcoin-futures ETF opens the door for financial intermediaries such as online brokers or brokerage dealers to insert themselves–as well as corresponding fees and extended settlement delays­–into the transaction process.

The stated purpose of the seminal white paper outlining peer-to-peer payment in 2009–leading to Bitcoin’s creation­–was to show a way to eliminate the need for monetary middlemen during financial transactions. Yet, that underlying principle is being paved over to spur mass adoption and the expected inflows of tens of billions in new money from institutional investors into cryptos as additional ETFs come online.

It’s unclear when or if the executive order will be issued, but make no mistake: Regulation is coming to crypto. In an effort to try and plot its own path forward, the largest U.S.-based cryptocurrency exchange, Coinbase, resorted to preemptive policymaking by drafting its own proposed regulatory framework to govern crypto and blockchain. 

While reading through the early sections of the regulatory blueprint, you get the sense that Coinbase Chief Policy Officer Faryar Shirzad sought to strike the right tone–assertive but not antagonistic, collaborative but not complacent. “We understand that high-level proposals don’t become law overnight–nor should they. But what they can do is evolve the debate in ways that are helpful for everyone, including members of Congress who are increasingly focusing on this area,” Shirzad wrote.

The wording got more pointed in his assertion that outdated policies haven’t kept pace with the times or tech, so Coinbase wants a regulatory reboot that starts from scratch. “Laws drafted in the 1930s to facilitate effective oversight of our financial system could not contemplate this technological revolution,” Shirzad wrote. “They do not accommodate the efficiency, seamlessness, and transparency of digital asset markets, and thus risk serving as an unintended barrier to current innovations in the digital asset economy.”

Coinbase clearly wants a seat at the regulatory discussion table, and it goes so far as to propose four “pillars” for regulating the crypto market. Most importantly, it wants digital assets to be regulated under a separate framework. Coinbase sees crypto as an asset class by itself, distinct from securities, bonds, and commodities. However, regulators may beg to differ and are unlikely to build a unique regulatory construct for crypto assets.

The company also wants to see one regulator designated to oversee the market for digital assets, efforts to protect and empower digital asset holders, and rules to promote interoperability and fair competition.

It remains to be seen what role crypto companies such as Coinbase will have in determining the direction of regulation, as well as whether regulators can lower their crosshair sights long enough to listen and collaborate with the industry. If you care about this issue, you should reach out to the offices of your congressional lawmakers.

It would be hyperbolic and premature to start speculating whether this is the beginning of the end or the end of the beginning for cryptocurrencies. But one thing is certain: Regulation is coming and cryptos’ path forward will never be the same.

Tor Constantino is a former journalist, current corporate executive, and business writer. Since 2017, he has also written about cryptocurrencies, blockchain, DeFi, NFTs, and crypto’s potential to revolutionize finance. His writing has appeared in outlets including Inc, Entrepreneur, DailyCoin, Success, Forbes, CEOWorld, and Yahoo! Finance. He has holdings in Bitcoin, Ethereum, Cardano, and XRP. His views are his own.

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