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Comments to the New York Department of Financial Services on the Proposed Virtual Currency Regulatory Framework
As the Treasury Department’s Financial Crimes Enforcement Network has found, certain virtual currency businesses are money service businesses. Typically such money service businesses engage in money transmission and as a result must acquire a money transmitter license in each state in which they do business.
On July 17, the New York Department of Financial Services (DFS) released its proposed BitLicense regulatory framework for virtual currency firms. We congratulate Superintendent Benjamin M. Lawsky and the entire department for the forward thinking they have demonstrated by making New York the first state to carefully consider the need to accommodate virtual currency firms in its regulatory system. This is a historic occasion in the evolution of money, and it may well be remembered for centuries to come. On July 23, the proposed rules were published in the New York State Register, setting off a 45-day period for public comment.
The Technology Policy Program (TPP) of the Mercatus Center at George Mason University is dedicated to advancing knowledge of the impact of regulation on society. As part of its mission, TPP conducts careful and independent analyses employing contemporary economic scholarship to assess rulemaking proposals from the perspective of the public interest. Therefore, this comment on the DFS’s proposed regulatory framework does not represent the views of any particular affected party or special interest group, but is designed to assist the department as it continues to lead the world in supporting the responsible adoption of this important new technology.
As the Treasury Department’s Financial Crimes Enforcement Network has found, certain virtual currency businesses are money service businesses.1 Typically such money service businesses engage in money transmission and as a result must acquire a money transmitter license in each state in which they do business. State financial regulators around the country have been working to apply their existing money transmission licensing statutes and regulations to new virtual currency businesses.2 In many cases, existing rules do not take into account the unique properties of recent innovations like cryptocurrencies. With this in mind, the department sought to develop rules that were “tailored specifically to the unique characteristics of virtual currencies.”3
As Superintendent Lawsky has stated, the aim of this project is “to strike an appropriate balance that helps protect consumers and root out illegal activity—without stifling beneficial innovation.”4 This is the right goal and one we applaud. It is a very difficult balance to strike, however, and we believe that the BitLicense regulatory framework as presently proposed misses the mark, for two main reasons.
First, while doing much to take into account the unique properties of virtual currencies and virtual currency businesses, the proposal nevertheless fails to accommodate some of the most important attributes of software- based innovation. To the extent that one of its chief goals is to preserve and encourage innovation, the BitLicense proposal should be modified with these considerations in mind—and this can be done without sacrificing the protections that the rules will afford consumers. Taking into account the “unique characteristics” of virtual currencies is the key consideration that will foster innovation, and it is the reason why the department is creating a new BitLicense. The department should, therefore, make sure that it is indeed taking these features into account.
Second, the purpose of a BitLicense should be to take the place of a money transmission license for virtual currency businesses. That is to say, but for the creation of a new BitLicense, virtual currency businesses would be subject to money transmission licensing. Therefore, to the extent that the goal behind the new BitLicense is to protect consumers while fostering innovation, the obligations faced by BitLicensees should not be any more burdensome than those faced by traditional money transmitters. Otherwise, the new regulatory framework will have the opposite effect of the one intended. If it is more costly and difficult to acquire a BitLicense than a money transmission license, we should expect less innovation. Additional regulatory burdens would put BitLicensees at a relative disadvantage, and in several instances the proposed regulatory framework is more onerous than traditional money transmitter licensing.
As Superintendent Lawsky has rightly stated, New York should avoid virtual currency rules that are “so burdensome or unwieldy that the technology can’t develop.”5 The proposed BitLicense framework, while close, does not strike the right balance between consumer protection and innovation. For example, its approach to consumer protection through disclosures rather than prescriptive precautionary regulation is the right approach for giving entrepreneurs flxibility to innovate while ensuring that consumers have the information they need to make informed choices. Yet there is much that can be improved in the framework to reach the goal of balancing innovation and protection. Below we outline where the framework is missing the mark and recommend some modifications that will take into account the unique properties of virtual currencies and virtual currency businesses.