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CHRG-115Hhrg30893.Pdf CRYPTOCURRENCIES: OVERSIGHT OF NEW ASSETS IN THE DIGITAL AGE HEARING BEFORE THE COMMITTEE ON AGRICULTURE HOUSE OF REPRESENTATIVES ONE HUNDRED FIFTEENTH CONGRESS SECOND SESSION JULY 18, 2018 Serial No. 115–14 ( Printed for the use of the Committee on Agriculture agriculture.house.gov U.S. GOVERNMENT PUBLISHING OFFICE 30–893 PDF WASHINGTON : 2018 For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 10:15 Nov 01, 2018 Jkt 041481 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 P:\DOCS\115-14\30893.TXT BRIAN COMMITTEE ON AGRICULTURE K. MICHAEL CONAWAY, Texas, Chairman GLENN THOMPSON, Pennsylvania COLLIN C. PETERSON, Minnesota, Ranking Vice Chairman Minority Member BOB GOODLATTE, Virginia, DAVID SCOTT, Georgia FRANK D. LUCAS, Oklahoma JIM COSTA, California STEVE KING, Iowa TIMOTHY J. WALZ, Minnesota MIKE ROGERS, Alabama MARCIA L. FUDGE, Ohio BOB GIBBS, Ohio JAMES P. MCGOVERN, Massachusetts AUSTIN SCOTT, Georgia FILEMON VELA, Texas, Vice Ranking ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas Minority Member SCOTT DESJARLAIS, Tennessee MICHELLE LUJAN GRISHAM, New Mexico VICKY HARTZLER, Missouri ANN M. KUSTER, New Hampshire JEFF DENHAM, California RICHARD M. NOLAN, Minnesota DOUG LAMALFA, California CHERI BUSTOS, Illinois RODNEY DAVIS, Illinois SEAN PATRICK MALONEY, New York TED S. YOHO, Florida STACEY E. PLASKETT, Virgin Islands RICK W. ALLEN, Georgia ALMA S. ADAMS, North Carolina MIKE BOST, Illinois DWIGHT EVANS, Pennsylvania DAVID ROUZER, North Carolina AL LAWSON, JR., Florida RALPH LEE ABRAHAM, Louisiana TOM O’HALLERAN, Arizona TRENT KELLY, Mississippi JIMMY PANETTA, California JAMES COMER, Kentucky DARREN SOTO, Florida ROGER W. MARSHALL, Kansas LISA BLUNT ROCHESTER, Delaware DON BACON, Nebraska JOHN J. FASO, New York NEAL P. DUNN, Florida JODEY C. ARRINGTON, Texas MATTHEW S. SCHERTZ, Staff Director ANNE SIMMONS, Minority Staff Director (II) VerDate Aug 31 2005 10:15 Nov 01, 2018 Jkt 041481 PO 00000 Frm 00002 Fmt 0486 Sfmt 0486 P:\DOCS\115-14\30893.TXT BRIAN C O N T E N T S Page Conaway, Hon. K. Michael, a Representative in Congress from Texas, opening statement .............................................................................................................. 1 Prepared statement .......................................................................................... 3 Peterson, Hon. Collin C., a Representative in Congress from Minnesota, open- ing statement ........................................................................................................ 4 WITNESSES Fairfield, J.D., Joshua A.T., William Donald Bain Family Professor of Law, Washington and Lee University School of Law, Staunton, VA ........................ 5 Prepared statement .......................................................................................... 7 Baldet, Amber, Co-Founder and Chief Executive Officer, Clovyr, New York, NY ......................................................................................................................... 11 Prepared statement .......................................................................................... 13 Submitted questions ......................................................................................... 97 Kupor, J.D., Scott, Managing Partner, Andreessen Horowitz, Menlo Park, CA .......................................................................................................................... 15 Prepared statement .......................................................................................... 18 Gorfine, J.D., Daniel, Director and Chief Innovation Officer, LabCFTC, Com- modity Futures Trading Commission, Washington, D.C. ................................. 20 Prepared statement .......................................................................................... 22 Submitted questions ......................................................................................... 97 Gensler, Hon. Gary, Senior Lecturer, Sloan School of Management, Massachu- setts Institute of Technology; Senior Advisor to the Director, MIT Media Lab, Brooklandville, MD ...................................................................................... 27 Prepared statement .......................................................................................... 30 Ness, J.D., Lowell D., Managing Partner, Palo Alto Office, Perkins Coie LLP, Palo Alto, CA ............................................................................................... 47 Prepared statement .......................................................................................... 48 (III) VerDate Aug 31 2005 10:15 Nov 01, 2018 Jkt 041481 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 P:\DOCS\115-14\30893.TXT BRIAN VerDate Aug 31 2005 10:15 Nov 01, 2018 Jkt 041481 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 P:\DOCS\115-14\30893.TXT BRIAN CRYPTOCURRENCIES: OVERSIGHT OF NEW ASSETS IN THE DIGITAL AGE WEDNESDAY, JULY 18, 2018 HOUSE OF REPRESENTATIVES, COMMITTEE ON AGRICULTURE, Washington, D.C. The Committee met, pursuant to call, at 10:01 a.m., in Room 1300 of the Longworth House Office Building, Hon. K. Michael Conaway [Chairman of the Committee] presiding. Members present: Representatives Conaway, Thompson, Good- latte, Lucas, King, Gibbs, Austin Scott of Georgia, Hartzler, LaMalfa, Davis, Yoho, Allen, Bost, Rouzer, Abraham, Kelly, Comer, Marshall, Bacon, Faso, Arrington, Peterson, David Scott of Georgia, Costa, McGovern, Vela, Lujan Grisham, Kuster, Nolan, Plaskett, Adams, Evans, Lawson, O’Halleran, Panetta, Soto, and Blunt Roch- ester. Staff present: Darryl Blakey, Mindi Brookhart, Paul Balzano, Ra- chel Millard, Matthew MacKenzie, Patrick Delaney, Troy Phillips, Nicole Scott, and Carly Reedholm. OPENING STATEMENT OF HON. K. MICHAEL CONAWAY, A REPRESENTATIVE IN CONGRESS FROM TEXAS The CHAIRMAN. Good morning, everyone. This hearing of the Committee on Agriculture entitled, Cryptocurrencies: Oversight of New Assets in the Digital Age, will come to order. Please join me in a quick prayer. Heavenly Father, we ask you, Lord, for blessings on this meeting this morning. We have some things to understand that are new and different, and we have great panelists to visit with us this morning. I also want to lift up Collin Peterson and his family dur- ing these times, bittersweet, and your thoughts and prayers with him as well. Help us to do your will and be the kind of people that will honor you. We ask these things in Jesus’ name. Amen. Just a quick word. Collin Peterson’s 981⁄2 year old father passed this week, and this is bittersweet. But he was telling me a wonder- ful story that his dad apparently had his faculties right up until the very end, which is pretty darn good. Our thoughts are with you, Collin. Mr. PETERSON. He was hanging in there. He could remember the crop prices from 1952. He knew everything. The CHAIRMAN. Yes, all right. Well good morning. We have a terrific panel this morning. I see a lot of new faces in the audience today. One of the big questions on a lot of folks’ mind is what is the Agriculture Committee doing (1) VerDate Aug 31 2005 10:15 Nov 01, 2018 Jkt 041481 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 P:\DOCS\115-14\30893.TXT BRIAN 2 with cryptocurrency, and the distributive ledger technology, but we are here to find that out this morning. For those of you who have not joined us before, welcome. We are happy to have you as we discuss an emerging policy area that is of deep interest to our Members, to the emerging crypto-industry, and, we hope, to Americans of all stripes. Digital assets like Bitcoin and Ether, but also hundreds of other token-based projects that are being developed, represent a new way for people to interact and exchange in commerce with one another. While digital assets are often thought of as payment systems or dig- ital gold, I believe the promise that token networks hold is more universal and more exciting, quite frankly, than that. For the first time, we have a tool that enables individuals to reli- ably exchange value in a digital realm without an intermediary. We can have assets that exist and can be created, exchanged, and consumed in digital form. The promise of being able to secure prop- erty rights in a digital space may fundamentally change how peo- ple interact with one another. This technology holds the potential to bring enormous benefits to each of us, if we are willing to give it the space to grow. Providing a strong, clear, legal and regulatory framework for dig- ital assets is essential. To that end, there are several questions be- fore us about how laws should govern the issuance, trade, and utili- zation of these digital assets. Perhaps no question has generated greater uncertainty than how to determine if a particular token is a security. What to do if a commonly traded asset is, in fact, deemed a security. We simply apply the securities laws. If it is not a security, there is a good chance it is a commodity, which would be subject to the require- ments of the Commodity Exchange Act. The problem seems to be in making that determination. The Howey Test, which concerns the sale of orange groves and service contracts in the 1940s, is often presented as the standard test to determine if the securities laws govern a token, yet they have proved challenging to analyze under this test. A related question is whether or not current laws are appropriate for these new digital assets. If
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