On February 20, 2020, the federal Office of the Comptroller of the Currency (OCC) announced a Bank Secrecy Act enforcement action against a federal savings bank (Bank). This is one of the first, if not the first, public enforcement actions against a bank related to banking cryptocurrency-related operations. Banks that currently provide banking services to cryptocurrency-related companies, or are considering providing banking services to such companies in the future, should carefully review this enforcement action and consider where the quality of the bank’s AML compliance program is commensurate with these high-risk customers.
As we previously reported, the US Treasury Department recently announced its 2020 National Strategy for Combating Terrorist and Other Illicit Financing (the 2020 Strategy). The 2020 Strategy identifies the US government’s top anti-money laundering and countering the financing of terrorism (AML/CFT) priorities and serves as a roadmap of Treasury’s plan to stay ahead of evolving illicit finance threats. Additionally, the 2020 Strategy provides private sector financial institutions a window into upcoming legislative efforts and enforcement trends, which should in turn inform compliance efforts through the coming years. Digital assets feature heavily in the 2020 Strategy.
At the conclusion of its February meeting in Riyadh, the Group of Twenty (G20) Finance Ministers and Central Bank Governors issued a communiqué discussing a wide range of topics, including digital assets and stablecoins. The G20 reiterated its view that technological innovations can deliver significant benefits to the financial system and the broader economy. It remains vigilant to potential risks arising from financial innovations, including those risks related to financial stability, consumer and investor protection, anti-money laundering and countering the financing of terrorism as well as their macroeconomic implications, including monetary sovereignty issues. Building on its 2019 Leaders’ Declaration, the G20 urged countries to implement the recently adopted Financial Action Task Force (FATF) standards on virtual assets and related providers, also known as the “travel rule.” The G20 also reiterated its prior statement in October 2019 regarding global stablecoins and other similar arrangements that such risks need to be evaluated and appropriately addressed before they commence operation, and likewise reiterated its support of the Financial Stability Board’s efforts to develop regulatory recommendations with respect to these arrangements.
As recently reported on the Hunton Privacy & Information Security Law Blog, the European Commission released a suite of documents including its White Paper on Artificial Intelligence and two communications—its European strategy for data and a Digital Strategy document.
The materials note that decentralized digital technologies such as blockchain offer a further possibility for both individuals and companies to manage data flows and usage, based on individual free choice and self-determination. Such technologies will make dynamic data portability in real time possible for individuals and companies.
As has been widely reported, SEC Commissioner Hester Peirce (aka “Crypto Mom”) recently delivered a thoughtful speech entitled “Running on Empty: A Proposal to Fill the Gap Between Regulation and Decentralization,” including with it a model rule on digital token sales. The model rule has made waves in the crypto community because it proposes a three-year safe harbor from SEC registration while a development team builds out a functional, decentralized network.
Most retailers have yet to fully embrace blockchain technology. Perhaps for good reason. Applying new technology, particularly that aimed at changing legacy systems, comes with certain risks. That being said, cryptocurrencies and blockchain have the potential to transform retail and commercial real estate. As previously shared by the Hunton Retail Industry Law Blog, blockchain can be used to streamline inventory management, administer consumer loyalty programs and authenticate high-value assets or the supply chain, generally. Blockchain can also be used more simply to boost consumer sales or process tenant rent payments. Shifting away from the consumer end of retail, below are some novel ways blockchain technology, specifically tokenization, can modernize real estate acquisitions, dispositions and financing.
On January 1, the Blockchain Technology Act went into effect in the state of Illinois, creating a statewide framework for the use of blockchain technology and blockchain based contracts, or “smart contracts.” Similar to other recent state legislation addressing the use of blockchain and smart contracts, the Act recognizes the validity of smart contracts and blockchain based records and signatures in commerce. The legislation also prevents smart contracts both from being denied legal effect and from being excluded as evidence in a legal proceeding solely because a blockchain was used to create, store or verify the contract.
As reported last week on the Hunton Insurance Recovery Blog, crypto-asset losses continue to rise and the industry is taking steps to protect clients and investors through insurance. Crypto-exchange and custody provider, Gemini Trust Company, LLC (“Gemini”), recently launched its own captive insurance provider, Nakamoto, Ltd. Captive insurance is an alternative to self-insurance whereby a company creates a licensed insurance company to provide coverage for itself.
In connection with its annual meeting in Davos, Switzerland, on January 24, 2020, the World Economic Forum announced the creation of a Global Consortium for Digital Currency Governance. The initiative is touted as the first of its kind “to bring together leading companies, financial institutions, government representatives, technical experts, academics, international organizations, NGOs and members of the Forum’s communities on a global level.” The consortium will focus its efforts on developing solutions for what it describes as a fragmented regulatory system. According to its organizers, “Efficiency, speed, inter-operability, inclusivity and transparency will be at the heart of this initiative.” It will call for innovative regulatory approaches to achieve these goals and build trust. The announcement follows a press release issued on January 21, 2020, indicating that the Bank of Canada, the Bank of England, the Bank of Japan, the European Central Bank, the Swedish Riksbank and the Swiss National Bank, along with the Bank for International Settlements (BIS), have created a working group to assess the potential cases for central bank digital currency (CBDC) in their home jurisdictions.