more than $250 million
in transactions from Iran, prohibited at the time by U.S. and
E.U. sanctions. In the process, NYDFS scooped the Justice Department, which was
seeking a similar penalty.
28
To those who thought bank regulations were too lax, he
was the new sheriff in town, a fearless leader and reformer of an industry run amok.
To the banks, he was quickly becoming Public Enemy Number One. Lawsky was just
getting started.
It was mid-2013 Lawsky was at his desk, probably working on another
blockbuster case against the big banks, when an economist on his staff knocked on his
door to discuss some unusual inquiries. According
to a few lawyers on the street,
several client firms were transacting in some strange new virtual currency called
bitcoin. Lawsky’s first reaction was “What the heck is bitcoin?”
29
The economist
went on to explain that these companies had customers who were buying, selling,
trading, and paying for goods and services with this digital dollar and that the lawyers,
ever cautious, wanted to know whether this kind of activity qualified as money
transmission, and if so, what to do about it. In New York, money transmissions are
typically regulated at the state level; and so the NYDFS, as
the state regulator in New
York, had a duty to regulate any entity engaged in money transmission. But how?
Lawsky hadn’t even heard about the technology, and he had a sneaking suspicion this
would be a very different kind of challenge.
Almost immediately, Lawsky was confronted with a problem that has become all
too commonplace, that disruptive technology does not fit neatly into existing
regulatory boxes, a hallmark of the digital age. In his mind, bitcoin didn’t fit at all.
Bitcoin is global in reach; federal and state governments would be limited in the scope
of what they can do to govern and regulate it. Moreover, the technology is peer to
peer and decentralized. Regulators make a living monitoring large intermediaries.
Their centralized
ledgers contain troves of data, ideal for building cases. And in the
digital age, officials in government are rarely, if ever, in possession of all the
information needed to make decisions in the public interest. Often, they lack resources
to govern it effectively and can be ill informed about innovation. Lawsky was coming
to terms with something that governments and regulators of digital technologies had
wrestled with for twenty years. Thanks to luck, foresight, and a different regulatory
framework, the Internet was able to grow and thrive. Cryptocurrencies were another
example of how digital technology is wresting control from traditional decision
makers, including governments.
Still, Lawsky had a job to do. Upon reviewing
the existing statutes, he found them
woefully inadequate. The department initially wanted to regulate this technology by
enforcing rules written around the time of the Civil War. Those money transmission
laws couldn’t possibly address any kind of digital technology like the Internet, let
alone digital currencies or cybersecurity. “The more I learned, the more interested I
got in how powerful this technology is, and I saw all the various applications and
platforms that were going to be built, over time,” he said. If he “could get regulation
right, to make sure the bad stuff we didn’t want to see
happening in the ecosystem
was avoided, and at the same time not have regulation be too overbearing, then we
had a real chance of helping a very powerful technology make serious improvements
to our system.”
30
Lawsky concluded, “Maybe we need a new type of regulatory
framework to deal with something that is just qualitatively different?”
31
His proposal,
the BitLicense, was the first serious attempt to provide a regulatory lens onto this
industry. A controversial piece of law, it revealed how even well-intentioned
regulations can produce unintended consequences. When the BitLicense went into
effect, there was a mass exodus
of companies such as Bitfinex, GoCoin, and Kraken
from New York; they cited the prohibitive cost of the license as a main cause. The few
that stayed are well-capitalized and more mature businesses.
The benefits, such as improved oversight and consumer protection, are
significant. Licensed exchanges, such as Gemini, have gained ground, perhaps
because their institutional clientele know they’re now as regulated as banks. But with
fewer competitors, will the BitLicense stifle innovation and cripple growth? Brito
argued that the BitLicense misses the mark by applying
old solutions to new
problems. He cited the BitLicense rule that if you take custody of consumer funds,
you need to get a license. “With something like bitcoin and other digital currencies,
you have technologies like multisig [multisignature] that, for the first time, introduce
the concept of divided control. So if the three of us each have a key to a multisig
address that needs two out of three, who has custody of the funds?”
32
In this case, the
concept of custody, once very clear in the law, is now ambiguous.
“My belief is the next five to ten years will be one of the most dynamic and
interesting times in history for our financial system,” Lawsky said.
33
He
resigned
from NYDFS to keep working on important issues at the heart of this dynamic
environment. “I would enjoy my career if I got to spend my time working in the
middle of what I believe is going to be an enormously transformative, dynamic,
interesting time . . . you have this world of technology, which is usually largely
unregulated, colliding with probably the most regulated system in the world, the
financial system. No one really knows what comes of that collision,” he said. “It’s all
going to work out over the next five to ten years and I want to be in the middle of that
collision.”
34
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