Virtual currency law in the United States

Virtual currency law in the United States

United States virtual currency law is the area of financial regulation that applies to the buyers, sellers, and users of virtual currency. This regulatory structure consist of tax regulations and FINCEN transparency regulations inbetween financial exchanges and the individuals and corporations with whom they conduct business.

Contents

The Internal Revenue Service (I.R.S) describes Virtual Currencies (VC)s as “a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value [and] does not have legal tender status in any jurisdiction.” [1] Albeit, electronic payment systems have been part of American life since at least one thousand eight hundred seventy one when Western Union “introduced money transfer” through the telegraph [Two] and in one thousand nine hundred fourteen “introduced the very first consumer charge-card,” virtual currencies differ from these digital payment structures because unlike traditional digital transfers of value, virtual currencies do not represent a claim on value; rather the virtual currency are the value.

The National Automated Clearing House Association (NACHA), through the Automated Clearing House (ACH) “moves almost $39 trillion and twenty two billion electronic financial transactions each year. [Trio] These electronic transfers of money through the ACH Network represent a claim to physical legal tender. Alternatively, “unlike electronic money, a VC, particularly in its decentralised variant, does not represent a claim on the issuer.” [Four] Electronic payment networks, such as the ACH, have decreased the costs and time required to transfer value and enlargened reliability and transparency. However, traditional electronic payment networks, even with transnational networks and satellite communications, differ from a virtual currency. For example, the Bitcoin exchange Coinbase charges only 1% on all Bitcoin exchanges to legal tender. [Five] Compare this to “2%-4% for traditional online payment systems, like PayPal and credit card companies, [6] or a global average of 7.49% for remittance sent through major remittance corridors. [7] The lower costs of transferring value is a superb incentive to both users and merchants. Quicker transaction speed is also an advantage of using VC. [Four] VC may also help to reduce identity theft because of the cryptographic nature of some of the currencies. [8]

Some experts predict various types of VCs will proceed to increase, and the request for the financial system to adopt methods of accepting these currencies will proceed to grow. In 2011, Simon Edwards, the Director of Corporate Affairs at Microsoft, sent a letter to the Reserve Bank of Australia asking, “whether the domestic payments infrastructure could be modified or adjusted in some way to facilitate and manage the exchange of value beyond traditional currencies.” [9] The online sale of goods and services in the United States accounted for an annual total of $283,009,000,000 transactions from the begin of 3rd quarter two thousand thirteen to the end of 2nd quarter two thousand fourteen (adjusted for seasonal variation). [Ten] VCs are enlargening as a percentage of these transactions. The Bitcoin exchange company Coinbase offers a payment service that permits merchants to receive Bitcoin and then automatically exchange the Bitcoin into fiat currency. [11] The speed of this exchange helps merchants to avoid the volatility of Bitcoin. In September 2014, Ebay announced that its payment processor Braintree will be accepting Bitcoin. [12] As of November 2014, the market capitalization of Bitcoin is just below five billion U.S. dollars, but has reached historic highs close to fourteen billion dollars. [13] The growth of Internet use and the virtual world is also enlargening. World Internet use enhanced from 15.8% in two thousand five to 38.1% in 2013. [14]

This Internet growth is characterized by a consumer request for a decentralized Internet practice that is not limited or dependent on traditional institutions and governments. This movement aims to create an Internet based on the idea of Virtual, Distributed Parallel (VDP) States, “acting as a kind of organizational counterpoint to that State’s governing bods.” [15] Crypto-currency and other virtual currencies are the VDP movements’ currency alternative to traditional currency and traditional financial institutions.

The current amount of VC use in the global market is unlikely to significantly affect the Federal Reserve’s capability to conduct monetary policy; however, if the size of the VC market were to grow larger it may affect monetary policy. [16] Even with the influence VC could have on monetary policy, the Reserve does not have the authority to supervise or regulate VC. [17] According to May 9, two thousand fourteen meeting of the Federal Advisory Council and Board of Governors of the Federal Reserve, the VC “Bitcoin does not present a threat to economic activity by disrupting traditional channels of commerce; rather, it could serve as a boon. Its global transmissibility opens fresh markets to merchants and service providers” and “capital flows from the developed to the developing world should increase.” [Legitimate] In the Treasury Department’s two thousand nine Report to Congress on International Economic and Exchange Rate Policies, the Treasury claimed that the dollar will proceed to be a major reserve currency “as long as the United States maintains sound macroeconomic policies and deep, liquid, and open financial markets.” [Nineteen]

According to the former Chief Technology Officer for the Central Intelligence Agency, Gus Hunt, the “Government’s going to learn from Bitcoin, and all the official government currencies are going to become crypto currencies themselves.” [20] Under twelve U.S. Code § 411, the Federal Reserve has the authority to issue Federal Reserve notes, [21] and under twelve U.S.C.A. § 418, the Treasury Department “in order to furnish suitable notes for circulation . . . shall cause plates and dies to be engraved” and print numbered quantities. [22] The Secretary of the Treasury has the authority to “mint and issue coins.” [23] However, it is uncertain if this authority includes the authority to “mint” electronic coins for a government-backed crypto-currency protocol. According to David Adolfatto, Senior Vice President, Director of Research, Federal Reserve Bank of St. Louis, “the most significant aspect of this technology revolution is, in my view, the threat of entry into the money and payment system and what I think it will do is to force traditional institutions, including central banks, to either adapt or die.” [24]

The IRS treats VC as property and requires for gains or losses upon an exchange of VC to be calculated. [1] This means that every VC user must track the gains or losses of every one of their VC transactions to stay in compliance with IRS regulations. [25] Tax Foundation, a tax policy research organization, claims that the IRS got it wrong by categorizing VC as property because the required record keeping creates compliance obstacles, and by categorizing VC as property, the IRS is overlooking how VC is used and treating it as something that people hold for an investment. [26] The pseudonymity of VC accounts permit users to hide funds and evade taxes. [27] Similar to receiving cash, merchants may not report the earnings to the IRS if the merchant believes the IRS will not be able to account for the transaction. The IRS may be able to audit a VC exchange the merchant uses, but if the merchant is using a individual VC account or using numerous exchanges the IRS may not be able to track these transactions.

FinCEN regulations Edit

In 2013, the Financial Criminal Enforcement Network (FinCEN) released a Guidance paper that stated exchanges and administrators of VC are subject to the Bank Secrecy Act (BSA) and must register as a Money Services Business (MSB). [28] The purpose of this legislation was to prevent financial exchanges from being used to launder money or finance crime, including terrorism. [29] The European Central Bank has also recommended registering exchanges to “reduce the incentive for terrorists, criminals and money launderers to make use of these virtual currency schemes for illegal purposes.” [30] In spite of the BSA applying to VC exchanges and administrators, VC is still used to finance crime and launder money because not every transaction in VC networks are required to serve with the BSA and not every online exchange obeys with the BSA. In September 2014, Robert M. Faiella, a/k/a “BTCKing,” pleaded guilty to operating an unlicensed exchange that exchanged over a million in cash for Bitcoin, used for criminal enterprise and known as “Silk Road.” [31] In spite of the BSA regulations, Faiella and the users of his exchange, were able to hide their identity through both pseudonymous Bitcoin addresses and an anonymous network that hid their I.P. addresses. [32]

Money laundering Edit

The culture of laundering money in the Bitcoin network is so prevalent there is even a website called bitlaunder.com. The company bitlaunder.com claims they are “experts at laundering Bitcoin” and they “use the most sophisticated methods available to totally anonymize your Bitcoins and obscure their history from forensic tracing.” [33] The Government Accountability Office reported that the pseudonymity in VCs makes it difficult for the government to detect money laundering and other financial crimes, and it may be necessary to rely on international cooperation to address these crimes. [34] Similarly, the European Banking Authority, claimed that regulations should strive for “global, coordination, otherwise it will be difficult to achieve a successful regulatory regime.” [Four] In spite of the best regulations from the United States and the European Union, the inherent nature of the Bitcoin protocol permits for pseudonymous transfers of Bitcoins to or from anywhere in the world, so illegal transactions will not be downright eliminated through regulations. Anonymity in Bitcoins and Altcoins (forks from the Bitcoin protocol) can be enhanced by adding software augmentations to the VC. Zerocoin, for example, uses an algorithmic process called “zero-knowledge proof” to hide the value of the coins. [35] Dark Wallet anonymously combines transfers of VC to obscure the origin of the transfer, and the developers intend to integrate the software into a Tor network in the future. One of the developers of Dark Wallet described it as “just money laundering software.” He said, “I want a private means for black market transactions,” “whether they’re for non-prescribed medical inhalers, MDMA for drug enthusiasts, or weapons.” [36] A crypto-currency known as Darkcoin offers even more anonymity than Bitcoin. Similar to Dark Wallet, Darkcoin combines transactions to increase the difficulty of analyzing where the currency was sent. “Some users may be trading Bitcoins for Darkcoins and back again, using the Darkcoin network as a giant bitcoin-laundering service.” [37] Other forms of VC have also been used for making illegal transactions. The VC service and exchange Liberty Reserve allegedly laundered over six billions dollars from crimes such as “credit card fraud, identity theft, investment fraud, computer hacking, child pornography, and narcotics trafficking.” [38] E-gold, a company with a VC tied to the value of gold, pleaded guilty to money laundering and running an unlicensed money transmitting business, and consequently had to forfeit $45,816,817.84 to the government. [39]

Transactions on Tor Edit

On November 2014, the FBI, “as part of an coordinated international law enforcement act,” seized dozens of “dark markets,” including Silk Road II operating on the anonymous Tor network. These markets accepted payment in Bitcoins or similar crypto-currencies, and operated both domestically and internationally. [40] Albeit the FBI was successful in cracking through the anonymous Tor network and discovering the origin of the illegal Bitcoin markets Silkroad I and II and similar illegal markets, the methods the FBI used may not be legal or available, in every case, under the Constitution’s prohibition against unreasonable searches and seizures. October 2014, the court determined the fate of the defendant regarding his role in the very first Silkroad, but the court refused to determine whether his 4th amendment rights were violated because he never pleaded that he had a right to privacy in the server that was searched. [41] The Court claimed that the defendant did not plead a disturbance of his 4th amendment rights because either “he in fact has no individual privacy interest in the Icelandic server, or because he has made a tactical decision not to expose that he does.” [41] Consequently, the Court claimed the defendant “therefore has no basis to challenge as violations of his Fourth Amendment rights: (1) the investigation that preceded and led to the Icelandic server, (Two) the imaging and search of the Icelandic server, and (Trio) Warrant Nos. 1, Two, Three, Four, Five, and 7.” [41] This is significant because the Court did not determine if the mechanisms the FBI used to locate the defendant IP address violated the 4th Amendment. Operating behind the anonymous Tor network might give a subjective expectation of privacy, but this may not be reasonable expectation of privacy that would get through the Katz test [42] because the Tor software explicitly states “Tor can’t solve all anonymity problems.” [43] Under Warshak, the defendant had a “reasonable expectation of privacy” in the content of his email; however, unlike an email, an IP address is generally visible to everyone on the Internet, [44] The FBI claimed they found the Silkroad’s IP address by “typing in miscellaneous entries into the username, password, and CAPTCHA fields contained in the interface” to find an IP address associated with an application misconfigured to the Tor network. [45]

Securities fraud Edit

The Securities and Exchange Commission (Commission) treats securities crimes committed with Bitcoin and VCs as money, and it is likely that anti-gambling regulations will be enforced with the same reasoning. On July 2013, Trendon T. Shavers was charged by the Commission for “defrauding investors in a Ponzi scheme involving Bitcoin” that amounted to over 700,000 Bitcoin or “$Four.Five million based on the average price of Bitcoin in two thousand eleven and two thousand twelve when the investments were suggested and sold.” [46] Shavers implemented the scheme through Bitcoin Savings and Trust (BTCST), “an unincorporated online investment scheme” that was not registered with the Commission. [47] “The collective loss to BTCST investors who suffered net losses (there were also net winners) was 265,678 bitcoins, or more than $149 million at current exchange rates” from September 2014. [47] Shavers attempted to argue the investments were not securities because Bitcoin is not money. However, in a precedent determining decision, the magistrate judge determined that Bitcoin is money, and thus the investments were securities. [47] The magistrate judge stated, “[i]t is clear that Bitcoin can be used as money. It can be used to purchase goods or services, and as Shavers stated, used to pay for individual living expenses. The only limitation of Bitcoin is that it is limited to those places that accept it as currency. However, it can also be exchanged for conventional currencies, such as the U.S. dollar, Euro, Yen, and Yuan. Therefore, Bitcoin is a currency or form of money, and investors wishing to invest in BTCST provided an investment of money.” [47] This decision paved the way for other regulators to treat Bitcoin and VCs as money, so it is likely this decision will be cited if regulators determine to prosecute VC transactions under the UIGEA, Illegal Gambling Business Act, Wire Act, or any other regulation involving financial transactions.

Consumer warnings Edit

On August 2014, the Consumer Financial Protection Bureau released a consumer advisory to warn consumers of the risk of VCs. The advisory warned consumers of hackers, scammers, loss of VCs by losing the private key, fewer regulations, and an inability to make chargebacks. [16] States have also released consumer advisories and warned users that VCs are not insured by the FDIC, very volatile, often associated with criminal enterprises, fresh, and unproven technology. [48] David S. Cohen, the Under Secretary for Terrorism and Financial Intelligence at the Treasury Department, stated that VCs pose “clear risks to consumers and investors” because the “anonymity and transaction irrevocability [of VCs] expose[s] them to fraud and theft, [a]nd unlike FDIC insured banks and credit unions that assure the safety of deposits, there are no such safeguards provided to virtual wallets.” [49] The result of this powerless regulatory environment makes VCs acceptable to price volatility, market manipulation, money laundering, fraud, and illegal transactions. [50] On August 11, 2014, the Consumer Financial Protection Bureau (CFPB) released a consumer advisory warning on VC and began accepting complaints on VC products and services. [16] Additionally, many U.S. states have released consumer warnings regarding virtual currencies.

Online gambling Edit

The Federal legality of online gambling with Bitcoins in the United States has not yet been determined; however, the legality of online gambling with legal tender currency has been determined. In April 2011, the FBI indicted the “founders of the three largest Internet poker companies doing business in the United States—PokerStars, Total Tilt Poker, and Absolute Poker . . . with bank fraud, money laundering, and illegal gambling offenses.” [51] In 2006, the United States enacted the Unlawful Internet Gambling Enforcement Act (UIGEA), yet the poker companies continued to operate until the two thousand eleven indictment. Similar to the two thousand eleven indictment, the Justice Department may be collecting evidence and building a case against the Bitcoin gambling sites before they launch an indictment. The UIGEA does not expressly prohibit Internet gambling, but it does make it illegal for an online gambling business to knowingly accept fund transfers. [52] The Bitcoin gambling sites are presently circumventing this legislation by keeping their funds in bitcoin cryptocurrency wallets. However, in order for these sites to exchange their Bitcoins for a fiat currency they must use a financial exchange, so even by receiving their earnings with Bitcoin, the online gambling sites may come into jurisdiction of the UIGEA if the gambling business accepts payment through “(i) automated clearing house (ACH) systems, (ii) card systems, (iii) check collection systems, (iv) money transmitting businesses, and (v) wire transfer systems.” [53] The Illegal Gambling Business Act may also prohibit Bitcoin gambling sites because the act broadly prohibits all gambling businesses that are in (i) “violation of the law of a State or political subdivision in which it is conducted;(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $Two,000 in any single day.” [54] Under IRS regulations Bitcoin and other VCs are treated as property, so losses and gains must be calculated to determine the value of the virtual currency. If an online gambling business earned the value of at least $Two,000 dollars in Bitcoin “in any single day”, they may fall under this act. The Federal Wire Act (Wire Act) prohibits “bets or wagers on any sporting event or contest.” [55] Some Bitcoin gambling sites have a combination of betting on sports and traditional casino games, [56] and it is conceivable the bets on sporting events could fall within the language of the Wire Act. The Wire Act expressly mentions “money or credit as a result of bets or wagers,” and VCs may fall under the intent of the Wire Act because they operate as credits that can be redeemed or exchanged at VC exchanges, and they operate like money because they facilitate transactions. [57]

Some online wagers do not fit under the typical definition of gambling or a game of chance. The Commodity Futures Trading Commission refers to these as “Event Contracts.” On December 2011, the CFTC ordered an online business to cease listing Political Events Contracts (i.e. betting on who will be elected) for trade, as it is contrary to the public interest. [58] The CFTC’s jurisdiction is being tested by online businesses that accept virtual currency for event contracts. A website, accepting Bitcoin and other VCs, called predictious.com lists trades such as attempting to call who will be elected, whether a celebrity will have a boy or chick child, or who will be the winner of a science competition.

Nevada law Edit

In Nevada v. Micon, a defendant was charged under Nevada law for operating an unlicensed casino that accepted Bitcoin. [59]

VCs lack many of the regulations and consumer protections that legal tender currencies have. Under U.S. law, a cardholder of a credit card is protected from liability in excess of $50 if the card was used for an unauthorized transaction. [60]

(EFTA) was written to protect consumers in transfers through automated teller machines, point-of-sale terminal, ACH systems, remote transfers, and remittance transfers.113 However, the EFTA does not apply to VCs, and due to the nature of many VCs, it may not be possible for VCs to be in accomplish compliance with the Act. For example, the regulations require for a consumer to be permitted thirty minutes to cancel an electronic transfer. [61] Many VCs, such as Bitcoin, do not permit chargebacks, so cancelling the Bitcoin transfer is not possible. Additionally, a credit card that transacts in VC is not protected by the fifty-dollar maximum liability for the holder of the credit card. [62]

The FDIC does not insure VCs; however, a GBCC opens the possibility for GBCCs held in a FDIC approved bank, to be insured by the FDIC. A GBCC may also permit traditional financial institutions to use fractional reserve banking to lend the GBCC with interest.

In a May two thousand fourteen Advisory Opinion, the Federal Election Commission (FEC) determined that Bitcoin donations are permitted under FEC laws. [63] This decision will permit microdonations, and it may encourage more people to donate to campaigns. The decision may also encourage more people to attempt to hide their political donations behind the pseudonymity of Bitcoin.

Congress may have the power to prohibit VCs under its power “[t]o regulate Commerce with foreign Nations, and among the several States” [64] and under its off the hook constitutional power “to coin Money” and “regulate the Value thereof.” [64] In a November two thousand fourteen decision, the Court upheld the power of regulators to prosecute a defendant who “designed, created and minted coins called ‘Liberty Dollars,’ coins ‘in resemblance or in similitude’ [or made to look like] of U.S. coins.” [65] Albeit the defendant did not pass the Liberty Dollars currency as a counterfeit, the currency were in close enough “resemblance of coins of the United States or of foreign countries” and consequentially fell under the authority of eighteen U.S.C.A. § 486.123 The Court has not determined if § four hundred eighty six includes the power to prohibit VCs, but if a Court determines that the purpose and intent of VC resembles United States or foreign currency it may fall under § 486. The Stamp Payment Act of one thousand eight hundred sixty two prohibits anyone from “mak[ing], issu[ing], circulat[ing], or pay[ing] out any note, check, memorandum, token, or other obligation for a less sum than $1, intended to circulate as money or to be received or used in lieu of lawful money of the United States.” [66] The Court has not determined if Congress has the power to prohibit VCs under this Act or any other existing regulation or statute.

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  57. ^ eighteen U.S.C.A. § 1084
  58. ^ In re. North American Derivatives Exchange, order (2012), Inc. http://www.cftc.gov/stellent/groups/public/@rulesandproducts/documents/ifdocs/nadexorder040212.pdf
  59. ^http://ag.nv.gov/uploadedFiles/agnvgov/Content/News/PR/PR_Docs/2015/2015-04-27_Criminal_Complaint_Micon.pdf
  60. ^ fifteen U.S. Code Section 1643.
  61. ^ Jerry Brito, Andrea Castillo, Bitcoin A Primer for Policymakers, Mercatus Center at George Mason University 32, 33, (2013), http://mercatus.org/sites/default/files/Brito_BitcoinPrimer.pdf.
  62. ^ fifteen U.S.C.A. § 1643
  63. ^ FEC Record Advisory Opinions, Federal Election Commission, (May 8, 2014), http://www.fec.gov/pages/fecrecord/2014/june/ao2014-02.shtml
  64. ^ ab U.S. Const., art. I, §8, cl. Five
  65. ^ United States v. von NotHaus, No. Five:09CR27-RLV, two thousand fourteen WL 5817559, at *1 (W.D.N.C. Nov. Ten, 2014).
  66. ^ eighteen U.S.C.A. § 336

Edward V. Murphy, M Maureen Murphy, Michael V. Seitzinger, (2015) Bitcoin: Questions, Answers, and Analysis of Legal Issues, Congressional Research Service.

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