EMH on Nostr: Question 2: What impact would the proposed rule have on blockchain privacy or ...
Question 2: What impact would the proposed rule have on blockchain privacy or pseudonymity, noting that filings reported to FinCEN are not publicly releasable and the similarities of this proposal to the recordkeeping and reporting requirements of transactions using the traditional financial system, such as with wire or Automated Clearing House (ACH) transactions?
Response to Question 2:
As noted in the response to Section A, Question 1, the proposed rule fundamentally misapplies a regulatory framework intended for traditional centralized financial systems onto a decentralized financial system. This decentralized system is built on code not owned by institutions and is, therefore, subject to protections under the First Amendment, similar to protected internet uses. Furthermore, the all-encompassing nature of these surveillance requirements also make the proposed rule a clear infringement on the Fourth Amendment’s protections against unreasonable search and seizure. This also makes it inherently unable to provide sufficient due process, under the Fifth Amendment. Finally, attempting to enforce these requirements may be viewed as extraterritorial overreach, since these requirements will clearly affect international finance as well as domestic.
Question 3: Does the impact on privacy and legitimate applications identified in Section IV.B potentially outweigh the risks posed by illicit activity facilitated by CVC mixing?
Response to Question 3:
While the proposed rule acknowledges the fact that there are legitimate uses of CVC mixing, it fails to quantify either legitimate or illicit uses. Therefore, it is not possible to make a complete estimation of whether the risks outweigh the benefits. However, the burden of proof for implementing an all-encompassing surveillance mechanism which infringes on privacy rights of the Fourth Amendment, has substantial and poorly understood costs to users, intermediaries and law enforcement, and very real economic costs to innovation should rest with FinCEN. That said, there is a sufficient body of evidence that the risks do not outweigh the benefits.
Question 4: What challenges are anticipated with respect to identifying the foreign nexus of a CVC mixing transaction?
Response to Question 4:
As noted in response to Section A, Question 1, there are legal, ethical, and technical challenges. On the legal front, there are concerns with First, Fourth and Fifth Amendment Rights as well as the extraterritorial application of U.S. Law; the ethics of this proposal are fraught with moral hazard as what is proposed is in opposition to fundamental human rights of freedom of speech, privacy, and use of property; and technically the inherent pseudonymous nature of blockchain transactions as well as challenges relating to identification of participants in a CVC transaction make enforcement practically impossible. While there are technical ways of achieving identification of CVC users (e.g., Advanced Heuristics, Forensics, KYC, AI, Geo Analysis, Public Ledger Analysis), this cannot stop even reasonably sophisticated individuals, let alone foreign state actors. In effect, the proposed rule will strip law-abiding U.S. citizens of their rights while doing nothing to stop actual criminals or foreign enemies.
Response to Question 2:
As noted in the response to Section A, Question 1, the proposed rule fundamentally misapplies a regulatory framework intended for traditional centralized financial systems onto a decentralized financial system. This decentralized system is built on code not owned by institutions and is, therefore, subject to protections under the First Amendment, similar to protected internet uses. Furthermore, the all-encompassing nature of these surveillance requirements also make the proposed rule a clear infringement on the Fourth Amendment’s protections against unreasonable search and seizure. This also makes it inherently unable to provide sufficient due process, under the Fifth Amendment. Finally, attempting to enforce these requirements may be viewed as extraterritorial overreach, since these requirements will clearly affect international finance as well as domestic.
Question 3: Does the impact on privacy and legitimate applications identified in Section IV.B potentially outweigh the risks posed by illicit activity facilitated by CVC mixing?
Response to Question 3:
While the proposed rule acknowledges the fact that there are legitimate uses of CVC mixing, it fails to quantify either legitimate or illicit uses. Therefore, it is not possible to make a complete estimation of whether the risks outweigh the benefits. However, the burden of proof for implementing an all-encompassing surveillance mechanism which infringes on privacy rights of the Fourth Amendment, has substantial and poorly understood costs to users, intermediaries and law enforcement, and very real economic costs to innovation should rest with FinCEN. That said, there is a sufficient body of evidence that the risks do not outweigh the benefits.
Question 4: What challenges are anticipated with respect to identifying the foreign nexus of a CVC mixing transaction?
Response to Question 4:
As noted in response to Section A, Question 1, there are legal, ethical, and technical challenges. On the legal front, there are concerns with First, Fourth and Fifth Amendment Rights as well as the extraterritorial application of U.S. Law; the ethics of this proposal are fraught with moral hazard as what is proposed is in opposition to fundamental human rights of freedom of speech, privacy, and use of property; and technically the inherent pseudonymous nature of blockchain transactions as well as challenges relating to identification of participants in a CVC transaction make enforcement practically impossible. While there are technical ways of achieving identification of CVC users (e.g., Advanced Heuristics, Forensics, KYC, AI, Geo Analysis, Public Ledger Analysis), this cannot stop even reasonably sophisticated individuals, let alone foreign state actors. In effect, the proposed rule will strip law-abiding U.S. citizens of their rights while doing nothing to stop actual criminals or foreign enemies.