The 9 Alternatives for Regulating Cryptocurrency

Posted on 03-16-2018 by
Tags: Cryptocurrency

Cryptocurrency: Should it be considered a currency, a security, or a commodity? 


By Kathy Bazoian Phelps

To regulate or not? That is the question. And there seems to be no consensus. The results of the Cryptocurrency Poll so far reveal a very clear divide on several important questions about virtual currencies. The public opinion is split nearly evenly on whether cryptocurrency should be considered a currency, a security, or a commodity. An equally wide split is evident in the very fundamental question about who, if anyone, should regulate cryptocurrency.

A recent decision on the question of who is in charge of regulation reveals nine possible alternatives of how to deal with cryptocurrency. Whether the SEC, CFTC or someone other agency should regulate cryptocurrency is an issue up for grabs. The CFTC obtained a ruling on March 6, 2018, that provides some guidance, although still leaves the door wide open. CFTC v. McDonnell, No. 1:18-cv-00361-JBW-RLM (E.D.N.Y. Mar. 6, 2018). In answering the question of whether virtual currency may be regulated by the CFTC as a commodity, the court identified the following 9 possibilities:

  1. No regulation.
  2. Partial regulation through criminal law prosecutions of Ponzi-like schemes by the Department of Justice, or state criminal agencies, or civil substantive suits based on allegations of fraud.
  3. Regulation by the Commodity Futures Trading Commission (CFTC).
  4. Regulation by the Securities and Exchange Commission (SEC) as securities.
  5. Regulation by the Treasury Department’s Financial Enforcement Network (“FinCEN”).
  6. Regulation by the Internal Revenue Service (IRS).
  7. Regulation by private exchanges.
  8. State regulations.
  9. A combination of any of the above.

In the McDonnell case, since CFTC standing was at issue, the court concluded that the CFTC is “one of the federal administrative bodies currently exercising partial supervision of virtual currencies.” While not reaching a conclusive and exclusive finding, at least we know that someone is in charge, at least “partially.”

Please feel free to express your views on The Cryptocurrency Poll. In the meantime, here is the current split on what it is and how to regulate it:

1. Do you think cryptocurrency is a commodity, security, or currency?

    1. Commodity                                          36.75%
    2. Security                                               27.11%
    3. Currency                                              25.9%
    4. Don’t know                                          10.24%

2. Should cryptocurrency be regulated by the SEC, CFTC, or some other agency?

    1. SEC                                                    42.55%
    2. CFTC                                                  20.57%
    3. Some other agency                               14.89%
    4. Cryptocurrency should not be regulated   17.02%
    5. Don’t know                                          4.96%

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