On September 16, 2022 the White House released its Comprehensive Framework for Responsible Development of Digital Assets (Framework) for how the administration plans to address digital assets as a part of its “whole-of-government approach”, which was first outlined in a March 9 Executive Order (EO) issued by President Joe Biden. 

In the short-term, the Framework does little to alter the regulatory uncertainty that has allowed many bad actors in the digital asset space to thrive while stymieing responsible growth. There are still many important questions that have gone unanswered, and this does not constitute official regulation or guidance from any regulatory authority.

However, this should be seen as an effort on the part of the current administration to create a unified approach moving forward. For the past few years, the digital asset industry has heard the mantra that “regulation is coming”, but it has seen little movement other than the occasional enforcement action. This may not change immediately, but the Framework could provide the policy initiative and guidance needed for some regulators to begin the process of providing much-needed regulatory clarity.

Details of the Framework and multi-agency reports

In the EO, President Biden laid out his administration’s six key priorities related to digital assets: (i) consumer and investor protection; (ii) financial stability; (iii) countering illicit finance; (iv) advancing US leadership in the international financial system; (v) financial inclusion; and (vi) driving responsible innovation.

The White House noted it has received nine multi-agency reports in response, which cover a wide range of policy topics associated with digital assets. The US Department of the Treasury’s Financial Stability Oversight Council (FSOC) will publish another one in October 2022, focusing on financial stability risks associated with digital assets.

The Framework highlights the priorities set forth in the EO and notes many of the suggestions that have been submitted. Among other things, the Framework establishes forums to convene multiple stakeholders in knowledge exchange and encourages the development of tech sprints and other innovation-driven events. It also instructs several agencies to track environmental impacts and provides for the creation and funding of education initiatives.

Agencies with investigation and enforcement authority are encouraged to “redouble their efforts” in holding bad actors accountable. The Framework also encourages agencies to issue guidance and rules designed to address many of the risks that have been identified in these reports.  

While this framework does not constitute a change in policy, it does highlight the administration’s desire to encourage both regulation and innovation in this space. Most importantly, it helps coordinate cross-agency cooperation for both of these purposes.

Full Reports:

Author

Jennifer Connors is a partner in Baker McKenzie's Financial Regulation and Enforcement Practice Group. She represents broker-dealers, investment advisers, alternative trading systems (ATSs), private fund managers, financial technology (FinTech) companies and other market participants on securities law and market regulation matters. Jennifer has more than 20 years of experience in legal and compliance roles at both global financial services firms and innovative FinTech companies as both a general counsel and a chief compliance officer. In these roles, she developed comprehensive written supervisory procedures (WSPs) and training programs for brokerage personnel, and served as a key liaison with financial industry regulators. In addition, she has drafted and negotiated vendor agreements, technology license agreements and electronic-access and trading agreements within the context of a FinTech startup.

Author

Jennifer serves as the Co-chair of Baker McKenzie's Financial Regulation and Enforcement Practice in North America. Jen is an experienced investment management lawyer with particular focus on investment adviser regulation and the convergence of investment advisory and brokerage services. She regularly represents clients before the US Securities and Exchange Commission (SEC), both in seeking interpretative guidance and in managing examination and enforcement matters. Jen is a leading practitioner in digital investment advice and the use of FinTech in the asset management industry.

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Amy serves as the Co-chair of Baker McKenzie's North American Financial Regulation and Enforcement Practice, which provides our clients with a full range of regulatory advice and enforcement counseling. Amy also serves on the steering committees of the Firm's Global Financial Services Regulatory and Global Financial Institutions Groups. Previously, Amy has served as chief litigation counsel at the US Securities and Exchange Commission's (SEC) Philadelphia regional office and managed a team of lawyers overseeing a wide variety of enforcement matters.

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Aiden O'Leary is an associate in Baker McKenzie's Financial Regulation and Enforcement Practice Group in North America. Aiden is a regulatory lawyer with a focus on federal and state securities laws impacting the broker-dealer and investment adviser industries. Prior to joining the Firm Aiden was an attorney with the NYS Department of Financial Services, where he focused his practice on the regulation, licensing, and supervision of a wide range of financial services companies, including those engaged in virtual currency businesses activity.