On January 20, 2021, an American Bar Association (ABA) Derivatives and Futures Law Committee sub-committee recently released an update to its “Digital and Digitized Assets: Federal and State Jurisdictional Issues” white paper, which features Perkins Coie attorneys Anna Smith-Sandy and Ernest Simons as contributors. The white paper was initially created by members of the Innovative Digital Products and Processes Subcommittee (IDPPS) Jurisdiction Working Group in March 2019. The IDPPS has a membership of over 80 attorneys who work extensively in the areas of derivatives law and securities law and related legal fields.
The updated white paper is the result of a significant collaborative effort and provides a comprehensive updated legal analysis of the jurisdictional issues concerning digital products. Topics covered by the white paper include the following:
- Background on digital assets and blockchain technologies and characteristics of digital assets and virtual currencies;
- Regulation by the Commodity Futures Trading Commission (“CFTC”) and the CFTC’s approach to classifying and regulating virtual currencies and related derivatives;
- Regulation by the Securities and Exchange Commission’s (“SEC”) under securities laws, including the SEC’s approach to classifying a digital asset as a “security”;
- The interplay between SEC and CFTC regulations;
- Financial Crimes Enforcement Network (FinCEN) regulation of digital assets, including in relation to anti-money laundering and know-your-customer requirements;
- International regulation of digital assets and blockchain technology throughout Europe, Asia, and Australia; and
- State law considerations with respect to digital assets and blockchain technologies, including state law licensing requirements and state-specific regulations.