The case in opposition to BitMEX is a compass pointing in direction of the way forward for crypto regulation

Current years have seen the crypto trade mature throughout the worldwide financial panorama, but it surely nonetheless runs into high-profile snags. On Oct. 1, the USA Division of Justice filed felony costs in opposition to 4 executives of the BitMEX buying and selling platform — together with its founder, Arthur Hayes — for violating the Financial institution Secrecy Act. One of many executives in query has been arrested, in line with a DOJ assertion.

Moreover, the Commodity Futures Buying and selling Fee additionally filed a civil enforcement motion in opposition to BitMEX and three of its executives for violating Anti-Cash Laundering rules.

The regulatory physique claimed that BitMEX and its prime brass have been partaking in shady actions for years, equivalent to utilizing weak Anti-Cash Laundering and Know Your Buyer insurance policies that dangerous actors can exploit utilizing numerous strategies equivalent to VPNs to masks their digital identities, amongst others.

Moreover, BitMEX makes use of a posh worldwide company construction that features quite a few separate particular person entities, and in consequence, it’s not solely clear the place precisely the agency is predicated. Additionally, it’s price noting that BitMEX overtly promotes on its web site that it’s registered within the Seychelles and has workplaces in premier locations equivalent to Hong Kong and New York.

BitMEX clients seem to haven’t any limits on their Bitcoin (BTC) withdrawals however need to undergo an ID examine, though the checks will solely turn out to be obligatory for merchants in February 2021. All through 2019, a number of studies claimed that the CFTC was investigating the alternate as a result of U.S. residents had been in a position to commerce crypto derivatives on the platform regardless that it was neither registered as a derivatives alternate with the CFTC nor as a cash companies supplier with any state within the U.S — which is prohibited.

John Jefferies, chief monetary analyst at CipherTrace — a blockchain intelligence agency — advised Cointelegraph that between November 2014 and September 2020, BitMEX didn’t file even a single suspicious exercise report, a method of reporting presumably illicit transactions to the U.S. authorities, including:

“BitMEX has been underneath investigation by the CFTC since early 2019 for permitting People to commerce on the platform, they usually got time to enhance their Buyer Identification Program to successfully exclude US individuals. It’s not that regulation enforcement hasn’t been following and warning BitMEX, however that BitMEX’s ongoing negligence and lack of compliance led to the hammer lastly coming down on them.”

BitMEX executives underneath fireplace

The purple flags had been there for everybody to see. For starters, BitMEX’s web site expressly marketed the truth that “No real-name or different superior verification is required” to utilize the platform.

As a part of its grievance, the CFTC has claimed that Hayes, Ben Delo and Sam Reed — BitMEX’s govt workforce — had been involved with a number of compliance consultants, one in all them even telling Reed that the corporate wanted to implement stricter KYC requirements to adjust to worldwide sanctions.

In different phrases, studies level to the truth that BitMEX had ample warnings to make corrections however selected to not heed them, ensuing within the executives now dealing with extreme costs. The Division of Justice’s indictment has every of the defendants dealing with as much as 10 years in jail. Not solely that, however in line with Jefferies, the CFTC’s motion may probably end in the costliest AML penalty ever paid out by a monetary establishment.

Nonetheless, it’s price noting that the CFTC’s grievance isn’t solely centered on BitMEX’s AML procedures however reasonably on its failure to register with the related authorities. In truth, it’s the DOJ’s indictment that appears extra intently on the AML facet. Maddie Kennedy, senior director of communications at Chainalysis — a cryptocurrency analytics agency — advised Cointelegraph:

“Transaction monitoring is a core part of a compliance program, as is KYC. A few of the felony exercise cited within the indictment is from a number of years in the past, which demonstrates the necessity for correct compliance procedures to be in place from day one. For cryptocurrency exchanges and monetary establishments in jurisdictions that haven’t but put rules in place, at this time’s information illustrates the significance of getting forward of the compliance curve.”

No silver lining?

Regardless of the CFTC’s takedown of BitMEX, authorized specialists equivalent to John Wagster, co-chair of Frost Brown Todd’s blockchain and digital forex unit, imagine that regardless of American regulators alleging that BitMEX was being operated via a “maze of company entities,” there are lots of professional causes as to why an organization might select to make use of such a enterprise mannequin that spans throughout a number of jurisdictions:

“We might want to see the main points of the CFTC’s case earlier than we are able to decide if the construction was supposed to realize nefarious functions. It’s common for enforcement companies to pursue each doable treatment to extend their negotiating leverage, so I’d not learn an excessive amount of into that portion of the allegations.”

That being stated, choices for BitMEX and its govt workforce stay comparatively restricted as a result of along with the civil costs, the U.S. lawyer for the Southern District of New York has additionally indicted Hayes, Delo, Reed and Gregory Dwyer — BitMEX’s head of enterprise growth — on felony costs of violating and conspiring to violate the Financial institution Secrecy Act, or BSA.

The BSA is the first regulation governing America’s AML/KYC rules that banks and monetary corporations are required to observe. The BSA additionally accommodates guidelines as as to if or not entities should register as cash companies companies. The rules put forth by the BSA function the American authorities’s major technique of stopping cash laundering and actions associated to terrorist financing.

What’s subsequent for BitMEX?

Increasing on BitMEX’s future, Dean Steinbeck, chief working officer of Horizen Labs — a privacy-oriented blockchain agency — advised Cointelegraph that U.S. regulators usually take a very long time earlier than implementing any main actions, particularly in relation to companies that depend on novel applied sciences, including:

“If BitMEX is discovered to have been working unlawfully, along with the fines and penalties, the CTFC will even search to ‘disgorge’ or recoup the entire earnings generated by the alternate. That is per the overall concept that ‘wrongdoers’ shouldn’t revenue from their illegal exercise.”

He additional added that regardless that BitMEX’s web site clearly states it can’t be utilized by U.S. individuals, regulators require that companies take lively steps to make sure that residents do not truly use the location. He added: “Even for playing web sites and ICOs, it isn’t sufficient for the enterprise to easily state ‘No US Individuals Allowed.’”

Regulatory motion could possibly be a game-changer for crypto trade

The allegations in opposition to BitMEX are severe and make a compelling case for decentralization. For its proponents, one of many extra favorable attributes of decentralization is that no single entity or particular person is in command of the protocol as a result of it’s run by its customers via decentralized governance.

If governance is decentralized, there isn’t any controlling authority that regulators can goal for enforcement. Any regulatory motion in opposition to BitMEX will seemingly trigger present protocols to decentralize extra rapidly — and future protocols to decentralize instantly.

That being stated, regardless that decentralized exchanges are identified for his or her minimal AML and KYC checks, this newest growth has raised the query of whether or not or not DEXs are additionally obliged to adjust to the BSA. In the event that they do, many crypto exchanges should rethink their present purchase/promote frameworks.