Terrorists are beginning to appreciate how useful bitcoin can be for quick, cheap and near-anonymous money transfers across the world. The cryptocurrency has been used by the Islamic State and jihadists in the Gaza Strip, according to a recent report by the Center for New American Security (CNAS). 

To fight this threat – along with drug trafficking, money laundering and other illicit uses of cryptocurrencies – Senator Chuck Grassley introduced the "Combating Money Laundering, Terrorist Financing, and Counterfeiting Act of 2017" in May. According to a statement, he hopes the bill will "update our money laundering laws for the 21st century." The bill could allow for civil asset forfeitures of bitcoin and other cryptocurrencies, and require users to declare cryptocurrency assets exceeding $10,000 whenever they cross a U.S. border. 

The Iowa Republican has been joined by California Democrat Dianne Feinstein, Texas Republican John Cornyn and Rhode Island Democrat Sheldon Whitehouse. Welcome as such bipartisan cooperation is, however, questions remain about whether Senate Bill 1241 is necessary or even productive.

The Wrong Approach?

According to the CNAS report, "there is no more than anecdotal evidence that terrorist groups have used virtual currencies to support themselves." For the time being, established systems of money transfer such as hawala networks suffice. In order to curtail a potential threat, experts argue, the government risks stifling innovation that is actually underway. 

Testifying before the House Financial Services Committee on June 8, Coin Center executive director Jerry Brito said that blockchain​ technology – the cryptographic innovation that underpins bitcoin and other cryptocurrencies – is "perhaps as important as the web," while acknowledging that "like the web, illicit actors are attracted to it." For Brito, however, the way to combat those actors is to reduce – not add to – the regulatory burden on cryptocurrency companies. Quoting the CNAS report, he told lawmakers:

"One particular challenge in this area is the requirement for a virtual currency firm to obtain licenses in all states in which it operates and maintain compliance consistent with both federal and applicable state standards where they are licensed to operate. With only a single federal registration for virtual currency firms, compliance costs would be more manageable for smaller firms, and regulators would be better able to oversee firms."

Kathryn Haun, a lecturer at Stanford Law School, also told the committee that a federal compliance standard would help. She said that digital currency companies in the U.S. are some of the most cooperative financial services firms around, producing better Suspicious Activity Reports than big banks – despite having much less in the way of compliance resources. In her decade working as a federal prosecutor, the best turnaround she ever saw on a subpoena was from a digital currency company. Jonathan Levin, co-founder of Chainalysis, pointed out that cryptocurrency intermediaries already register with FinCEN, the Treasury Department's Financial Crimes Enforcement Network.

When digital currencies become a problem, the culprits almost always use unregistered, overseas exchanges, where Haun said "nearly 100% of ransomware and hacking campaigns take place." She argued that law enforcement needs "more statutory authority to go after uncooperative entities overseas." (See also, Bitcoin Price Drops After "WannaCry" Ransomware Taint.)

"FULL 1984"

Grassley's bill would not do what those experts suggest. S. 1241 would include digital currencies under the legal definition of monetary instruments and the companies that deal with them under the definition of financial institutions, which could result in anti-money laundering reporting requirements for those transporting more than $10,000 in digital currency across the U.S. border.

The problem, as Blockchain Alliance counsel Alan Cohn points out, is that it's difficult to distinguish between owning and transporting digital currency. "In theory, a person always carries their digital currency—or the ability to transact their digital currency—with them, including as they cross a border," he wrote recently, adding that this is also the case with mobile banking and credit cards. (See also, How to Buy Bitcoin.)

The bill may also open cryptocurrencies up to civil asset forefeiture, meaning that law enforcement could seize funds suspected of being tied to criminal activity.

Cryptocurrency enthusiasts are not, by and large, pleased. A Reddit post accusing Congress of "GOING FULL 1984 ON BITCOIN" and calling the bill's sponsors "certifiably insane" garnered 5,427 points in 11 days, with 90% upvotes. Cohn, in a more measured assessment, wrote, "Congress should consider the impacts of singling out virtual currency users, the majority of whom are not using virtual currency for illicit purposes. A better and more risk-based approach should strike a balance between discouraging illicit use while still encouraging innovation." 

What's a "Digital Currency"?

According to Brito, the Senate's bill is being misinterpreted. It would not in fact require cryptocurrency users to declare assets at the border, Brito wrote recently; rather it would require Homeland Security and Customs and Border Protection to submit a report to Congress "detailing a strategy to interdict and detect prepaid access devices, digital currencies, or other similar instruments, at border crossings and other ports of entry for the United States." Depending on the contents of that report, the ultimate result could be the same, but commissioning a report may fall short of "full 1984." Brito does not address the potential for civil asset forfeitures.

That's not to say he loves the bill. Rather, he sees it as a potential headache for those seeking a stable regulatory environment. The bill is not in fact new, but was introduced in "essentially identical form" in 2011. Two years after that, FinCEN's regulations made clear what cryptocurrency businesses qualify as money service businesses. Much of the vocabulary around cryptocurrency regulation has also been established since 2011: "virtual currency," "convertible virtual currency," "centralized virtual currency" and "decentralized virtual currency" are well understood. "Digital currency," the term S. 1241 uses, is not. If the bill were to become law, in other words, it might not change much – just confuse people. 

Want to learn how to invest?

Get a free 10 week email series that will teach you how to start investing.

Delivered twice a week, straight to your inbox.