How ICOs are Regulated

My previous post on ICOs and venture capital led to a question about how ICOs are currently regulated. I spent some time last weekend looking at the regulatory environment for ICOs. While I was bewildered by much of what I read, I managed to learn two things:

  • Existing cryptocurrency regulations are primarly concerned with AML/KYC, not consumer protections.
  • Regulating ICOs as securities is still nascent, with varying approaches by jurisdiction.

The Current Regulatory Environment

In most jurisdictions, cryptocurrency exchanges have to comply with existing anti-money laundering (AML) and know your customer (KYC) regulations. ICOs, as cryptocurrencies, fall under these existing regulations. Implementing these requirements can be difficult. Since tokens are transferred using generated addresses, identifying the parties in a transaction can be difficult. Other networks, like Zcash, support fully anonymous transactions, potentially obviating things like KYC.

Entities conducting an ICO may also face regulations from multiple jurisdictions that classify ICOs and cryptocurrencies in different ways. Cross-border tax implications have yet to be reconciled.

Future Regulatory Directions

In the U.S., the SEC issued an investor bulletin for ICOs. The bulletin didn’t offer any proactive advice on ICO regulations. Instead, the bulletin simply advised investors that, depending on the circumstances of a given ICO, the tokens may or may not be securities. As I understood it, tokens that return capital gains or profits back to the token holder are more likely to be considered securities.

ICOs issuing tokens that are deemed securities will face more scrutiny and overhead. Sales must be registered, as will secondary markets that trade in tokens. Local laws will also apply, which can vary in each state.

At least in the U.S., this should be seen as promising. Regulators effectively went with what they knew: securities. They didn’t overreach in their guidance to investors or ICO issuers, but they also left a number of areas yet to be defined. At least in the U.S., I believe these open regulatory areas will eventually be covered. Other jurisdictions are also actively outlining how ICOs will coexist in their markets, but this will take time.

Sources

  1. Investor Bulletin: Initial Coin Offerings
  2. Understanding Initial Coin Offerings: Technology, Benefits, Risks, and Regulations