Bitcoin, at its heart, is a technology and the U.S. government generally does not regulate technologies themselves, but rather, how technologies are used. For example, PayPal is regulated as a money service business because it enables the sending of money over the Internet, but the Internet itself is not regulated as such. Not surprisingly, the U.S. Congress and many U.S. federal and state agencies, including the SEC and the CFTC, have begun examining the operations of digital asset issuers, their Users and the market for digital assets, and have claimed authority to govern various aspects of the digital assets ecosystem.
It is not always easy to determine which agency has governing authority. For example, a CFTC commissioner recently said that digital assets “may actually transform at some point from something that starts off as a security and transforms into a commodity.” The CFTC determined in 2015 that bitcoin is a commodity and that fraud and manipulation involving bitcoin is within the purview of the agency. However, financial products linked to the value of digital assets, including bitcoin, may be structured as securities and subject to U.S. securities laws. In addition to complying with federal laws, bitcoin-related companies must also comply with state regulations, some of which are tailored specifically to digital asset activity, such as the “BitLicense”, which was created by the New York State Department of Financial Institutions in 2015. Still, because Bitcoin is a global network, the laws and regulations from jurisdictions around the world are applicable and how countries approach digital assets range from clear regulatory guidance and approval to outright bans on digital asset ownership.