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Compliance & Risk

Despite polarizing FTX hearing, bipartisan support exists for crypto-regulation

Brett Wolf  Regulatory Intelligence

Richard Satran  Financial Journalist, Thomson Reuters Regulatory Intelligence

Brett Wolf  Regulatory Intelligence

Richard Satran  Financial Journalist, Thomson Reuters Regulatory Intelligence

Even as disagreements flared at a recent Congressional hearing on the FTX collapse, sentiment emerged that some sort of crypto-regulation was a likely possibility

The no-show of star witness Sam Bankman-Fried at a December 2022 congressional hearing into the collapse of the FTX crypto exchange may have drained drama from the event, but the methodical testimony of the man who replaced him as FTX’s chief executive officer, John Ray, III, helped expose problems that could shape legislation following the largest meltdown to hit the troubled crypto industry.

The hearing exposed some partisan differences even as broad agreement emerged on what needs to be done to reduce risks for crypto investors. Republicans and Democrats remained apart in their views of the future of a digital-asset world shaken by the swift collapse of a firm regarded as one of the safest bets in the industry. Indeed, the FTX failure showed basic concerns that must be resolved before mainstream firms can assure regulators that investor protections are in place.

Republicans who have been ardent advocates of deregulation used the hearing to slam U.S. agencies for failing to act sooner to halt fraud at FTX and for going too slow in drafting rules. Numerous Democrats argued against taking hasty actions until more is known about the FTX failure, which led to Bankman-Fried’s recent arrest and indictment on multiple criminal charges.

Garden of Eden full of snakes

“My fear is that we will view Sam Bankman-Fried as just one big snake in a crypto Garden of Eden,” U.S. Rep. Brad Sherman (D-Calif.) told the hearing of the U.S. House Financial Services Committee. “The fact is, crypto is a garden of snakes.” Sherman has been a persistent critic of cryptocurrency, which he sees as mainly a tool for tax evasion, funding for illicit activities, money laundering and sanctions evasion.

Republican legislators at the hearing argued against curbs that discourage innovation and argued for moving more quickly to put basic rules in place.

Despite testy exchanges and finger-pointing across the aisle, the hearing showed bipartisan consensus that the industry needs to assure transparency, asset custody, and governance that curbs conflicts of interest and self-dealing.

The FTX case also illustrates the challenging complexities in resolving a digital-asset bankruptcy, Ray said during the hearing. But the process was the same that he followed while overseeing the collapsed energy trading firm Enron, he said. “You follow the money.”

The FTX event could lead to “information being gathered that will inform legislation in a positive way,” said Sarah Riddell, a Morgan Lewis lawyer who worked for the Commodity Futures Trading Commission (CFTC) and participated in drafting the Dodd-Frank legislation.

Riddell compared the job ahead to the post-financial crash rulemaking that required a multi-faced, complicated process. The industry firms that have put compliance in place in their crypto practices could emerge intact, she said. “The firms with good tires will survive the heightened attention this has brought.”

AML as a unifier

U.S. Senators Elizabeth Warren (D-Mass.) and Roger Marshall (R-Kansas) recently introduced bipartisan legislation aimed at mitigating risks that digital assets pose to U.S. national security by closing “loopholes” that enable money laundering using cryptocurrencies. The introduction of the Digital Asset Anti-Money Laundering Act of 2022 comes in the wake of a number of high-profile government actions and scandals in the crypto sector, including the Treasury Department’s blacklisting of the cryptocurrency “mixer” Tornado Cash in August as well as the FTX bankruptcy and founder Bankman-Fried’s subsequent indictment. Amid these scandals, pressure on legislators and regulators to rein in the sector and strengthen anti-money laundering (AML) activities has only mounted.

Among other things, the Digital Asset Anti-Money Laundering Act of 2022 would extend AML obligations to a much broader spectrum of cryptocurrency players. For example, it would require such crypto entities as digital asset wallet providers, miners, validators, and other network participants to comply with portions of the Bank Secrecy Act, including know-your-customer requirements. The Act would also prohibit financial institutions from using or transacting with digital asset mixers and other anonymity-enhancing technologies and from handling, using, or transacting with digital assets that have been anonymized using these technologies.

The Act would also direct the U.S. Treasury Department to establish an AML/counter-terror finance compliance examination and review process for money services firms and directing the U.S. Securities and Exchange Commission and CFTC to establish similar compliance examination and review processes for the entities those agencies regulate.

“Rogue nations, oligarchs, drug lords, and human traffickers are using digital assets to launder billions in stolen funds, evade sanctions, and finance terrorism,” Sen. Warren said in a written statement. “The crypto industry should follow common-sense rules like banks, brokers, and Western Union, and this legislation would ensure the same standards apply across similar financial transactions. The bipartisan bill will help close crypto money laundering loopholes and strengthen enforcement to better safeguard U.S. national security.”

The senators noted that the Treasury Department, U.S. Justice Department and other national security and financial crime experts “have warned that digital assets are increasingly being used for money laundering, theft and fraud schemes, terrorist financing, and other crimes.”

In fact, rogue nations have used digital assets to launder stolen funds, evade American and international sanctions, and fund illegal weapons programs, the statement noted, adding that in 2021, cybercriminals raked in at least $14 billion in digital assets — an all-time high.

Further, Binance, the world’s-largest crypto platform, was reported to have laundered more than $10 billion for criminals and sanctions evaders over the last few years. However, splits among Justice Department prosecutors are delaying the conclusion of a long-running criminal investigation into Binance, it was recently reported. A Binance spokesperson declined comment.