Sunday, August 21, 2022

US Looks To Provide Customer Protections To Crypto Investors In This New Bill

US Looks To Provide Customer Protections To Crypto Investors In This New Bill

A group of US senators recently introduced a law called the Digital Goods Consumer Protection Act of 2022 which gives the Commodity Futures Trading Commission (CFTC) the power to regulate trade in digital goods. This framework can be seen as a safeguard for US clients operating in a currently unregulated market. The full draft bill can be found here.

"This rule holds digital product platforms to the same standards as traditional financial institutions," the bill's summary says.

The bill would allow the CFTC to regulate the two most popular cryptocurrencies, bitcoin and ethereum, as well as other cryptocurrencies not classified as securities by the Securities and Exchange Commission (the US SEBI equivalent).

The bill was supported by the following senators:

  • Debbie Stabenow,
  • John Boozman
  • Corey Booker,
  • and Giovanni Thun.
  • “One in five Americans have used or traded digital assets, but these markets lack the transparency and accountability they expect from our financial system. This often puts Americans' hard-earned money at risk," Stabenow said.

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    Why it matters: This bill is important because it will provide clear state oversight of commodity markets for digital assets. The Cryptocurrency market has recently been hit by a series of hacks that have left investors in a desperate situation.

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  • It should also be noted that many countries around the world, including India, are trying to regulate digital assets. The transboundary nature of these resources makes it all the more important that countries join forces to implement effective controls.
  • Key points of the bill

    Definition: The bill defines digital goods as “transferable digital forms of private property that can be transferred from person to person without the necessary reliance on intermediaries.” The draft also lists the following exceptions to the definition:

  • interest in physical products;
  • title;
  • A form of US-backed digital currency;
  • Other instruments not classified as digital goods by the CFTC.
  • However, the project avoids determining whether the token is a commodity or a security.

    Jurisdiction: One of the main provisions of the bill grants the CFTC "exclusive jurisdiction" over digital commodity transactions. The CFTC will be tasked with banning fraudulent digital commodity trading.

  • This means that any transaction, "excluding transactions where the merchant or consumer uses a digital product solely to buy or sell goods or services," is now under the jurisdiction of the CFTC.
  • The CFTC has the authority to audit and monitor digital product platforms in real time to ensure compliance with the law.
  • Registration: The law states that doing business without registration is illegal. Any entity operating as a digital commodity platform must register with the CFTC under one of the following categories:

  • Digital Goods Brokers: Those who request or receive orders to trade digital goods on behalf of others and arrange the exchange of digital goods on behalf of others.
  • Digital Product Custodian: means a person who owns, holds or controls a Digital Product as a business on behalf of another person.
  • Digital asset trader: A person whose business can be defined as the buying or selling of digital assets for the purpose of trading digital assets primarily and converting them into digital assets, currency or other rewards.
  • Digital Commodity Exchange Structure: means an exchange structure that facilitates the execution or transactions of digital commodity exchanges between people.
  • Key principle: All institutions should only allow trading in transactions that are difficult to manipulate. They must provide “a competitive, open and efficient marketplace and transaction execution system that protects the value discovery process of trading on the platform”.

  • Principles of Trading Structure Digital commodity trading facilities must establish rules to protect the market and market participants from abuse by any party.
  • Monitoring Measures: Digital goods business entities must monitor transactions to prevent manipulation, price distortion, and violations through “regulatory and disciplinary procedures including investigation, sanctions and real-time exchange monitoring”.
  • Disciplinary procedures: Institutions must implement disciplinary procedures that allow digital goods traders to punish, suspend or expel market participants who violate the platform's rules.
  • Dispute Resolution: Marketplace must have a dispute resolution mechanism for market participants and market intermediaries.
  • For resellers and brokers: This scheme guides them to ensure fair and unbiased prices; record all transactions in digital products and provide such information to the CFTC upon request; comply with standards of business conduct; and build a risk management system.
  • Key principle for all stakeholders: Each platform must keep a record for five years with an audit trail.
  • Antitrust Issues: Platforms are required to refrain from imposing rules that unreasonably restrict trading or impose anti-competitive burdens on trading.
  • Conflicts of Interest: The CFTC will need a platform to develop conflict of interest systems and procedures that provide “structural and institutional safeguards” for areas such as information sharing, disclosure of financial incentives, or conflicts of interest.
  • Cybersecurity: The platform must have a risk analysis and control program in place to identify and mitigate sources of operational risk through appropriate controls and procedures and automated systems.
  • Compliance Director: The Platform must appoint an individual as the Chief Compliance Officer, who will report directly to the Board of Directors or a senior officer. They will ensure that the company complies with legal requirements.
  • They must produce an annual report on the platform's compliance with its laws, policies and procedures.
  • Client Protection: The CFTC has been asked to include client protection requirements that require digital product platforms to disclose to clients:

  • Information about significant risks;
  • Specific details of the Agreement that apply to Digital Products;
  • platform financial incentives or conflicts of interest;
  • Standards governing platform marketing and advertising, including reviews and recommendations.
  • Self-Regulation: The law requires digital commodity brokers, digital commodity traders, or digital commodity custodians to become registered futures association members. The CFTC is empowered by law to require associations to perform registration functions for trade in digital products.

    Fees Collected by the CFTC: The CFTC may charge the entity valuations and fees that are used to cover annual fees:

  • Digital product platform registration;
  • exercise control over digital commodity exchanges;
  • Implementation of awareness raising and information dissemination activities
  • The fee will be determined based on the business volume of the digital product platform; and the Digital Product Platforms Division.
  • The law prohibits digital commodity platforms from charging transaction fees for each digital commodity transaction to pay for CFTC fees.
  • Reporting: The CFTC was asked to study energy consumption and the energy sources used to manufacture and transfer the best-selling digital products.

  • They must prepare a report with the calculation of energy consumption for 180 days. The CFTC is required to post offers on its website and update its dashboard regularly and in a timely manner.
  • The CFTC should also prepare reports that explore the racial, ethnic, and gender demographics of consumers participating in the digital product market; and submit a report to the US Senate.
  • The report will suggest ways the CFTC can help historically underserved consumers participate in the digital product market. The report must be made within 180 days from the date of enactment of the Act.
  • This is not the first bill to regulate cryptocurrencies in the US Senate.

    The Digital Consumer Protection Act is not the first bill introduced in the US Senate to regulate cryptocurrencies. This follows the Responsible Finance Innovation Act introduced in June 2022 by US Senators Kirsten Gillibrand and Cynthia Loomis, which set the stage for digital asset regulation in the US.

    In addition, the Gillibrand and Lummis Bill proposes the creation of a Commodity Futures Trading Commission with the authority to regulate the digital asset spot market. The order "is in good agreement with the existing [CFTC] experience in other commodity markets," the draft said

    The scope of the Loomis-Gillibrand bill is wider than that proposed by Stabilno. The project addresses tax issues including the $200 minimum tax exemption, definitions, stablecoins, central bank digital currencies, innovation, and more.

    The bill also includes customer protection that requires intermediaries to ensure that "the scope of permitted transactions that can be carried out with a customer's digital assets is clearly stated in the contract with the customer."

    This instructs them to recognize:

  • Changes to the source code version of the Digital Asset Content prior to any update;
  • Procedures for segregating client digital assets,
  • attitude to the client's assets and risk of loss in the event of bankruptcy or insolvency;
  • The terms and manner in which the Client is obligated to return Digital Assets upon request,
  • applicable fees,
  • Dispute resolution process.
  • When will India introduce its own laws to regulate crypto assets?

    The Loomis-Gillibrand bill, along with the Stablenow Bill, could serve as a model for India's digital asset law, which is currently under negotiation. It is not clear when the bill will go to Parliament after it was introduced twice.

    The government recently announced that it is working on publishing a consultancy paper covering various issues raised by crypto assets. The document will likely outline the government's stance on cryptocurrencies and how it intends to regulate it. This means that the law is still a few months away.

    The road to regulation is full of dangerous twists and turns as India's central bank seeks to impose sanctions. Finance Minister Nirmala Sitharaman recently announced that the RBI intends to roll back the cryptocurrency ban that was first introduced in 2018.

    Notes. Title updated at 00:28 August 8th for clarity.

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