Unchained - Unconfirmed: Why It Might Be Too Late for Binance to Avoid Regulatory Action - Ep.255

Episode Date: July 16, 2021

Christine Parker, partner at Reed Smith, summarizes the slew of regulatory headlines facing Binance and how such scrutiny may affect the exchange going forward. Show highlights: which countries are investigating Binance why it has been difficult for governing bodies to regulate Binance whether the reports that regulatory bodies, like the CFTC/IRS/DOJ, coming after Binance are correct when Christine expects regulators to make a move against Binance how hiring ex-regulators might help Binance in Congress whether Binance’s strategy of leaving countries with tight regulations helped or hurt the exchange what Christine thinks of Binance’s strategy to localize its business model  whether or not it is too late to avoid regulatory penalties for Binance why transitioning to a DAO business model would not absolve Binance of prior infractions how the BitMEX situation could inform Binance whether criminal charges could be in Binance CEO Changpeng Zhao’s future Thank you to our sponsors! Crypto.com: https://crypto.onelink.me/J9Lg/unchainedcardearnfeb2021  Oasis: https://oasisprotocol.org  NEAR: https://near.org     Episode Links   Christine Parker: https://www.linkedin.com/in/christine-parker-b09a31/   Binance Investigations https://www.coindesk.com/state-of-crypto-binance-is-firmly-in-the-regulatory-crosshairs  https://www.theblockcrypto.com/post/110380/thailand-sec-binance-crypto-exchange-criminal-complaint https://www.theblockcrypto.com/linked/104836/binance-crypto-irs-us-government-investigation-report https://www.theblockcrypto.com/post/110510/barclays-customers-in-the-u-k-can-no-longer-transfer-funds-to-binance https://www.theblockcrypto.com/linked/110617/binance-suspends-deposits-from-key-european-payments-network https://www.theblockcrypto.com/post/111482/italy-binance-consob-warning   Binance Material CZ letter https://www.binance.com/en/blog/421499824684902301/A-Letter-from-Our-CEO-Reflecting-on-Progress-and-the-Road-Ahead CZ Unchained appearance https://unchainedpodcast.com/listen-to-cz-compare-binance-to-bitcoin/  Binance’s compliance hiring spree https://www.radicalcompliance.com/2021/07/08/binance-compliance-hiring-spree/ Learn more about your ad choices. Visit megaphone.fm/adchoices

Hi, everyone. Welcome to Unconfirmed. The show that reveals how the marquey names in crypto are reacting to these top headlines and gets the insight scoop on what they see on the horizon. I'm your host, Laura Shin, a journalist with over two decades of experience. I started covering crypto six years ago, and as a senior editor at Forbes was the first mainstream media reporter to cover cryptocurrency full-time. This is the July 16th, 2021 episode of Unconfirmed. My book, The Cryptopians, Idealism, Greed, Lies, and the Making of the First Big Cryptocurrency craze is available for pre-order on Amazon, Barnes & Noble, Bookshop.org, or any of your favorite bookstores. Go to bitly slash cryptopians, B-I-T-L-Y-S-C-R-Y-P-T-O-P-I-A-Ns.

The OASS network is a privacy-enabled blockchain platform for open finance and a new data economy. Start building your next idea on the Oasis Network. The crypto.com app pays you up to 8.5% interest on your Bitcoin. Get $25 when you download the crypto. dot com app with code Laura. The link is in the description. Neer is an open source platform that accelerates the development of decentralized applications, overcoming high fees and slow speeds with its fast, scalable, low cost, and climate neutral blockchain protocol. Learn more at n-e-a-r.org. Today's guest is Christine Parker, partner Reed Smith. She focuses on regulatory

and enforcement actions in the areas of commodities, derivatives, and cryptocurrencies. Welcome, Christine. Hey, thanks for having me. In recent weeks, Binance has become the subject of a number of warnings or announced investigations by regulators across several jurisdictions. So we're recording on Thursday, June 15th, and just this morning, there was yet another one where Italy's securities regulator concepts said Binance was unauthorized to offer services in the country.

Can you give an overview of the various notices and actions against finance in recent weeks? Sure. They certainly are sailing into some headwinds. And just to be clear, when we talk about finance, I'm talking about finance, finance, which is the sort of the global derivatives exchange that doesn't really sit in any particular jurisdiction. And market participants, investors have been accessing it through their website for a number of years now. So just to distinguish that finance from the sort of the finances that sit in a number of different jurisdictions, including the U.S. So the larger finance entity has absolutely attracted the attention of regulators in the

U.S., in the U.S., in the U.K., Italy, and a number of other jurisdictions. And, you know, in particular in the U.S., we understand that the CFTC, the Department of Justice, and the IRS are all looking into their activities, presumably. as a derivatives exchange that is being accessed by U.S. customers, but we obviously don't know the facts. Similarly, in the U.K., the FCA restricted access as of June 30th to retail customers in the UK, likely along the similar lines as to the investigations in the U.S. And the Italian authorities essentially said the same thing. You know, Italian customers are not allowed to receive any investment advice from finance

or to do any trading activities on the sort of larger global exchange. Yeah, and some of the others have been Japan's financial services agency, which issued a second warning about Binance. The Ontario Securities Commission said Binance failed to comply with local regulations. Thailand announced it filed a criminal complaint against Binance for unregistered operations. The Cayman Islands said that Binance Group and Binance holding LTD were not authorized to operate there. and Singapore is announced that it's watching two finance entities and also Poland's

financial regulator caution against using the exchange. So it's quite the list. And even in the U.S. Silvergate Bank also cut off withdrawals and deposits for Binance, but not for Binance, the U.S. entity, as you mentioned earlier, what is the significance of all these actions and announcements? That's a great question. I would have to say, I think the, The binance has certainly been on the radar of the global regulators for some period of time. But I certainly think the lack of jurisdiction of the entity itself has really hampered their efforts and ability to bring these actions against them. Typically, in the cross-border setting, what we see is the regulators will submit an MOU or work through an MOU with a foreign regulator and a foreign jurisdiction, and they'll submit their request for information or their subpoena or what have you.

That's been a challenge with Binance because it's really kind of hard to pin down what their actual jurisdiction is. And so I certainly think that has slowed things down, but I'm certain that finance has been on the radar of the regulator, certainly the U.S. regulators for a number of years now. What do you think is the likely outcome of all these reports about these? Because especially for the U.S. ones, it was, you know, not 100% clear whether or not, you know, they really were, they probably are. But, you know,

it was just reported and not generally confirmed. So what do you think is the likelihood that these reports are accurate? And if and when do you think these inquiries would result in an enforcement action? My guess is that the reports are very accurate. You know, I think we've got some precedents in the Bitmex case where we heard reports of the CUTC and DOJ were investigating them. And that turned out to be correct. My guess is, is that probably in the next six to nine months, you'll see either a settlement with the C of D.OJ and IRS or not, in which case they will likely seek to sort of enjoy their activities in the U.S.

and charge them for whatever violations of law, U.S. law that are applicable in, you know, the Southern District of New York or perhaps Washington, D.C., given the number of federal agencies that are involved in the case. And then what would the trajectory of finance be after that? I think it's unclear. When you take into account the activities of finance, US, you know, for them, the best resolution would be of something very speedy, some kind of settlement with finance to allow them to move forward in the U.S. with the U.S. regulators with a somewhat clean slate. but you know they're just maybe a different of opinions finance may take the view you know we're engaging

in activity in our jurisdiction wherever that is that's unregulated and they may want to fight the case they may not want to settle with the regulators and create some interesting precedent but i do think that there will be tensions with finance u.s i mean obviously separate enemies that will make it i think much harder for minance u.s to move forward in the u.s if finance the sort of parent company fighting any charges bought by U.S. regulators. Finance has been hiring a number of former regulators or compliance directors from other big fintechs to key roles and as advisors. For instance, former Financial Action Task Force executive secretary Mick McDonnell and former head

of the Canadian delegation to the FATF Jose Nadeau were appointed as compliance and regulatory advisors and also Max Baucus, the former U.S. Senator for Montana and U.S. ambassador to China, will also provide high-level guidance. What's your sense of how effective this strategy will be? It is certainly worth pursuing. It's certainly worth trying. I think Binance, U.S., and Binance are certainly sailing into headwinds in the U.S., partially of their own making, but also just sort of the currency to play here in the U.S.

with respect to crypto at Congress and with the regulator. So, you know, on one hand, I think it clearly shows and demonstrates that they want to turn the corner and sort of move forward with a new, you know, attention to laws and statutes and regulations and compliance and the like and really want to put their best foot forward, you know, when dealing with regulators in the U.S. and with the global regulatory body. So that certainly makes sense. It should be effective. But I think we're just in the U.S. in particular, we're really at sort of a challenging point

in the innovation of crypto. And by that, I mean, there's a lot of consternation on the hill with crypto. There are certainly supporters. There are certainly members of Congress that are interested and have areas of interest. But you have vocal members of Congress who are not supporters of crypto. And the regulators in the U.S. hear that and see that. So, you know, Max Baucus can certainly be an effective advocate for finance and the crypto industry at large. But there are a lot of folks who's got to be talking to on the hill.

And they've got to change their tune. And the regulators have to feel comfortable and convinced that the, you know, the Hill is now supportive of crypto. So they've got the right players. They're going to action them. I think the question is, you know, does that, is that enough to surmount those in Congress who are not supporters of crypto? And, you know, that's not just finance, but certainly, you know, they look to the finance holding company as a key example of, you know, what they don't like in the crypto space. So there are certainly challenges, but they've identified key players that could really be effective. But it's an issue that's larger than just them.

So in a moment, we'll dive more into how things might unfold for Binance. But first a quick word from the sponsors who make this show possible. With over 10 million users, crypto.com is the easiest place to buy and sell over 90 cryptocurrencies. Grow your crypto with crypto.com earn, which pays up to 8.5% interest on your Bitcoin. coin and 14% interest on your staple coins. When it's time to spend your crypto, nothing beats the crypto.com visa card, which pays you up to 8% back instantly and gives you 100% rebates for your Netflix, Spotify, and Amazon Prime subscriptions.

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Come learn why NIR is the infrastructure for innovation at N-EA. oarg. Back to my conversation with Christine Parker. In the 2018 interview I did with Binance CEO Cheng Peng Zhao, who goes by the name CZ, I asked me about Binance's history of leaving jurisdictions when it looks like regulators might clamp down on Binance. And this was very early on when, you know,

they would like leave China or Japan or, you know, whatever these, when these regulators kind of started making noise. And at that time, he responded to me, quote, what's wrong with going to a country where dot-dot, things are viewed favorably for you? Why do you have to be stuck in a country that is not good for this kind of stuff, meaning for crypto?

This is like saying, if you don't like hot places, why don't you stick yourself in Florida in the sun all the time? So at this point in time, three years later, how well do you think that this modus operandi has served finance?

Well, on one hand, they have incredible market share, incredible liquidity. You know, they're, if not the biggest, they're one of the biggest out there. The biggest. Okay. So they are the biggest. And everybody wants to trade on them. They've got liquidity. They've got leverage. They've got the products that, you know, retail customers in the U.S. are pretty much anywhere else can't access. So in one hand, you know, this approach has allowed them to build up an incredible market presence. On the other hand, the regulators hate it. They don't think that it makes them a credible partner in being sort of a responsible yet innovative crypto company

that they want their retail investors to have access to. It is certainly a viable approach, but I think if you want to have continuing access to retail investors from the larger jurisdictions, that won't last forever. And I think we're seeing that now. I think we're sort of at that deflection point. That being said, there is not that much that U.S. regulators can do to prevent U.S. customers from accessing finance. All it really takes is a website and a VPN. I think the key tension will be with their payment partners and whether customers can continue to trade and withdraw their money or deposit funds. I think it's helped them to build an incredible market, but I think in the long term, there are challenges to that approach.

and receive them right now. In a recent blog post, Z cited a number of ways in which Binance plans to become more compliant. And one of the techniques he mentioned was that it would localize its operations, similar to how Binance U.S. is an independent entity, compliant and regulated in the U.S.

Do you think that will be an effective strategy or is that going to sap Binance of its strength and being able to source liquidity from around the globe? That's a great question. From a regulatory and legal perspective, it is a great approach because every jurisdiction takes a different approach to what's essentially the regulation of derivatives. And there's some commonality, but it's a pretty local regime. And so the U.S. and the U.K. and Singapore all have different approaches, particularly with respect to retail customers. So on one hand, you know, that will hopefully put them in the good graces of the U.S. regulators.

On the other hand, exactly to your point, they are going to lose that global. because the cross-border, you know, regulations are really tough when it comes to retail participants trading on derivatives exchange. And there's just not that cross-border liquidity that you see right now with finance. So, yes, they will, you know, it'll allow them to stand up in the U.S., but they're going to lose that global liquidity. Also in the U.S., we don't have any leverage products that are available for retail customers anyway. So it's going to reduce their offerings, which will be less attractive. to retail investors in the U.S. and you lose that global pool of liquidity.

That being said, it puts you in the good raises of the regulator. So there's essentially some benefit to that. And do you think that there are any other good strategies finance can use now to avoid penalties or enforcement actions? The ship might have sailed on that one. It might be too late for that. It's really a strict liability test in the U.S. you know, if you offer derivatives and you're unregulated in the U.S.

and you allow U.S. customers to access that exchange, you know, even if they pivot now, it's too late to sort of clean up the past bad acts. But that being said, again, they're standing up Binance U.S. It seems like their plan is to work with the regulators to stand up a new entity, and hopefully they will be successful in pushing the regulators to allow more regulated products that are more commercially attractive to retail customers, i.e., products that have leverage. We just heard the news that

ShapeShift will be moving over to a decentralized exchange. And Binance, of course, has the Binance smart chain. Do you think that finance could switch to a Dex and in that way avoid, at least, maybe if not

enforcement actions due to past behavior, at least going forward? They could, finance could certainly take that approach. Again, I don't know if it absolves them of prior misconduct, and their decks would have to be in compliance with local regulation, whatever applies in the circumstances of how it turns itself into a decentralized entity. Certainly a possibility for them going forward. I'm not sure that it solves their current issues. All right. And then earlier you mentioned BitMex based off of what has happened there with the CFTC and DOJ enforcement actions against that exchange, what would you say is the relevance there for Binance in terms of, you know, what is this spell for them most likely?

A great question. I think, I mean, look, if they're going to take the same route, you know, you don't know until you don't know. But I think they're probably very similar allegations against. finance that there are against Bitmex in which they've, they're operating an offshore unregulated exchange or futures commission merchant FCM. They should be regulated and they are not conducting themselves as if they are regulated. That was another charge, a novel charge, the CETC brought in. You know, they failed to do into money laundering compliance under, you know, bank secrecy act requirements as they would be required to do if they were regulated in the U.S. I mean, I think that's a pretty clear roadmap going forward. And so you think then it could result in criminal charges against perhaps CZ or other executives?

I don't know. I was really surprised by the criminal charges against the founders of it next. I mean, that was really something. I would not want to see that as a tool necessarily going forward used by the regulators in this space, but I, you know, I'm not this other district of New York, you know, U.S. attorney. It certainly, they have the precedence. Okay. All right. Well, I guess we will have to check back to see what comes of all this. But it's been such a pleasure talking to you. And thank you so much for coming on Unconfirmed. Thank you so much for having me. This is a great conversation. Don't forget. Next up is the weekly news recap. Stick around for this week in crypto after this short break. Designed for the next generation of blockchain, the Oasis Network is the first privacy-enabled blockchain platform for open finance and a responsible data economy. Combined with its high throughput and secure architecture, the Oasis network is able to power private, scalable defy,

revolutionizing open finance and expanding it beyond traders and early adopters to a mass market. Its unique privacy features can not only redefine defy, but also create a new type of digital asset called tokenized data that can enable users to take control of the data they generate and earn rewards for staking it with applications, creating the first ever responsible data economy. Thanks for tuning in to this week's news recap. First headline, U.S. Forum's anti-ransomware effort will pay for tips with crypto. To fight back against a wave of ransomware attacks that have crippled companies and industries, the White House is forming a cross-government task force to investigate the phenomenon whose ransom payments are made through cryptocurrency. The group will look for ways

of, quote, halting ransom payments made through cryptocurrency platforms. It will also focus on prevention, such as helping potential targets bolster their internal systems. Additionally, the U.S. State Department's Rewards for Justice Program is adding crypto as a payout option and what may be a first for a federal agency. The reward is for up to $10 million for information on cyber criminals, quote, acting at the direction or under the control of a foreign government. Next headline. Fidelity highs a hiring spree. According to Bloomberg, Fidelity digital assets is planning to hire up to 100 new employees. employees in response to increasing institutional demand for cryptocurrency. The hiring spree would

bolster the company's headcount by 70% and allow fidelity to develop new products and expand services strictly beyond Bitcoin. Tom Jessup, president of Fidelity Digital Assets, explicitly mentioned ether, saying, quote, we've seen more interest in ether, so we want to be ahead of that demand. Speaking of hiring, DeCripps Jeff Roberts reports that Binance US's hiring of CEO Brian Brooks has caused tension with leadership at Circle and Coinbase. Brooks recently joined Binance U.S. in April after a 10-month stint as the head of the office of the controller of the currency. Before his time at the OCC, Brooks was Coinbase's top lawyer. Roberts reports that multiple sources say Brooks joined Binance U.S. while negotiating for the role of president at Circle,

a move that left the stable coin provider blindsided. Coinbase was also rankled, as Roberts put it, as Brooks was still consulting with the exchange when he took over the reins at competitor Binance U.S. Next headline, Jack Dorsey announces new Bitcoin platform business. Square, along with seller, cash app, and title is creating a new platform business with Bitcoin as its primary focus, tweeted Twitter CEO Jack Dorsey. Like Square's Bitcoin hardware wallet, the new company will be completely open sourced with the goal of, making it easy to create non-custodial, permissionless, and decentralized financial services. As of now, the company lacks the name. Next headline. DeFi Education Fund sells half its uni.

The DeFi Education Fund announced the sale of half of the 1 million uni tokens that it received from Uniswap's treasury, roughly two weeks ago. The deal made waves as it contradicted DEF's initial proposal, which outlined a plan for the tokens to be allocated over a four to five-year period, to not dilute uni's price. Stemming from a Harvard law blockchain and fintech initiative proposal, Uniswap Dow members approved the Defy Education Fund on June 29th. From there, one million uni tokens were released from Uniswaf's treasury to fund and create the Defy Education Fund, a 501c for non-profit intended to provide grants to further support existing and new political groups engaged in crypto policy and or lobbying.

DeFi watches Chris Black was a vocal critic of DEF's $10 million uni sale. He tweeted, Defy Education Fund is dumping 500K Uni all at once for $10.2 million in USDC. Why in the hell do they need $10.2 million all at once? Why not just sell a uni as they need it? Amazing that uni governance has absolutely no say in what is happening here. In response to the blowback, DEF posted on Medium explaining its uni USDC sale as a diversification play, adding that an annual budget would be published in the next 90 days.

The fund also updated its Twitter profile picture after initially leaving it blank, which many users found quite fitting. Next headline. US regulators crave crypto clarity and stricter regulation. On Wednesday, Fed Chair Jerome Powell told Congress that stable coins should face stricter regulation. Powell said, quote, if they are going to be a significant part of the payments universe, which we don't think crypto assets will be but stable coins might be, then we need an appropriate regulatory framework, which frankly, we don't have.

On Thursday, Congressman Tom Emmer reintroduced the Securities Clarity Act, a bill that would provide a framework for the SEC to determine which digital assets are securities, saying that regulatory uncertainty has hindered the U.S.'s ability to compete in the crypto industry. Next headline. ShapeShift is decentralizing. Crypto Exchange, ShapeShift, is shutting down formal operations and has begun fully decentralizing. It is open-sourcing everything and has commenced the largest airdrop in history, distributing $98 million worth of Fox tokens to over a million customers and defy community members. All 900,000 Shapeshift users will be eligible for the Airdrop,

along with 120,000 addresses associated with popular defy tokens. According to a blog post by CEO Eric Voorhees, the decentralization process started last fall when Shapeshift began replacing its trading systems with popular Dex's. Through integrations with Zerox and Thorchain, Shapeshift was able to fully offer decentralized trading at scale for ERC20 and Bitcoin transactions. Once Shapeshift's trading systems were replaced by Defi integrations, Borhe saw no reason for the centralized aspect of Shapeshift's existence to continue. He wrote, quote, with our integration of these deckses, shape shift shift no longer provided trading services, and yet users didn't lose their ability to trade.

This was better for our users, better for us, and appropriately in line with the ethos of crypto. Privacy, immutability, and self-sovereignty in finance. Next headline. Revolut's fundraising round is the third largest in crypto history. Revolut, a London-based neobank with a crypto offering, has raised $800 million in a round led by SoftBank and Tiger Global, according to a Sky News report. The deal values the company at roughly 33 billion, $6 times greater than its February 2020 round at $5.5 billion, making it the most valuable company in British fintech history. Revolut recently allowed customers to withdraw crypto from its platform. Additionally, according to Business Insider, so rare, a soccer-based digital collectibles game,

aka NFT game, is expected to announce a $532 million raise at a valuation of $3.8 billion, which would be the largest raise in the history of France's tech sector. Based on data from Dub Mountain, the raise from Revolut and presumably so rare would rank as the third and fourth largest funding rounds in crypto history, respectively. Next headline. Bullish's $9 billion valuation comes with no product. The cryptocurrency exchange, Bullish, is set to go public through a merger with a special purpose acquisition company Far Peak acquisition, headed by former New York Stock Exchange president Tom Farley. According to the press release, Bullish expects the transaction to close by the end of 2021. The deal values the crypto exchange at 9.5.

billion, roughly one-fifth of Coinbase's market cap of $47 billion. Farley will take over as chief executive officer, leading a company backed by Peter Thiel, Alan Howard, Richard Lee, Galaxy Digital, and Nomura. The exchange has yet to release an actual product, though it plans to offer a pilot in the coming weeks on which participants will be able to test the platform before Bullish's public launch. Next headline. Dogecoin founder says crypto has the worst parts of today's capitalist system. Jackson Palmer, Dogecoin's co-founder, who left the project in 2015, published an eviscerating tweets thread on why he refuses to return to cryptocurrency. Two quotes standout. After years of studying it, I believe that cryptocurrency is an inherently right-wing hyper-capitalistic

technology built primarily to amplify the wealth of its proponents through a combination of tax avoidance, diminished regulatory oversight, and artificially enforced scarcity. Second, financial exploitation undoubtedly existed before cryptocurrency, the cryptocurrency is almost purpose-built to make the funnel of profit-tearing more efficient for those at the top and less safeguarded for the vulnerable. Palmer ended a thread saying that he will no longer publicly discuss cryptocurrency. Okay, time for fun bits. Cardano's smart contract race heats up. Polymarket, a Dap that allows users to bet on certain beliefs on Ethereum's blockchain, recently opened up a new market, asking if Cardano will support contracts on its main net by October 1st, 2021. Cardano, the Charles Hoskinson-led blockchain network,

has not yet launched smart contract capability, even though Cardano has been around since 2017. Ada, the native token of Cardano, is the fifth largest token by market capitalization. On Twitter, Hoskinson and Ethereum co-founder sarcastically commented on the market saying, you people really make me laugh. Polymarket, however, shot back saying, You know what's really funny, Charles? Cardano's still not having smart contracts. We'll bet you $50,000 on Polymarket that you won't have live smart contracts for Cardano slash Ada by October 1st. Time to put your money where your mouth is, Charles.

Winnings go to charity of choice. As of press time, it appears polymarket users give Cardano smart contracts a 39% chance of being live by October 1st. Second fun bits. Damien Hearst's NFT Challenge will test the value of NFTs over physical art. British artist Damien Hurst. kicked off what he called an art-based social experiment, launching what he calls the currency,

a series of 10,000 of his so-called spot paintings on A4 paper, along with corresponding NFTs. The kicker? In a year, each buyer must choose whether to swap their digital version for a physical artwork. NFTs that are not traded in will have their physical counterpart, destroyed, and vice versa. Guess we will find out which is more desirable,

the physical editions, or the NFTs. Okay, thanks for tuning in to learn more about Christine, Reed Smith, and Binance, be sure to check out the links in the show notes. Heads up, everyone. The Unchain Newsletter has switched from a weekly news recap to a daily email. Each morning, you'll get four to five quick headlines, a crypto meme or two, and a few recommended reads. Head to Unchainedpodcast.com, and the sign-up for the newsletter is right on the homepage. Unconfirmed is produced by me, Laura Shin, with all from Anthony Youne, Mark Murdoch, and Daniel Ness. Thanks for listening.