Misunderstandings and Clarifications about the CLARITY Act - Adapted from the U.S. Senate Committee on Banking, Housing, and Urban Affairs
This week, the Senate will take a historic step regarding the CLARITY Act. This is a comprehensive market structure legislation aimed at establishing a clear regulatory framework for digital assets. The bill is the result of over six months of bipartisan negotiations and extensive communication with regulators, law enforcement, academia, and the industry. As the Senate Banking Committee prepares for critical procedural reviews, here are the facts:
Key Points: The current digital asset market operates under fragmented regulation and outdated rules. The CLARITY Act establishes clear and enforceable regulatory guardrails, which include:
Protecting ordinary investors
Keeping investment and innovation in the United States
Safeguarding U.S. national security
Misunderstanding 1: The bill deviates from securities law and will provide less investor protection and compliance obligations for digital asset securities.
Fact: This statement is incorrect. The bill relies on long-established principles of securities law, clearly defining which digital assets are considered securities and which are commodities. Entities subject to the bill's regulatory requirements must submit information disclosures to the U.S. Securities and Exchange Commission (SEC), comply with resale restrictions, and are protected against evasion. Within this framework, securities remain securities, fraud remains illegal, and the SEC retains full enforcement authority over digital asset securities.
Misunderstanding 2: The bill will expose banks, taxpayers, and the financial system to risks.
Fact: Fundamentally, this is an investor protection bill. It brings digital assets into a clear regulatory framework, holding wrongdoers accountable for fraud, manipulation, and abuse. The bill aims to prevent future collapses similar to FTX by providing a regulatory framework that ensures investors are aware of significant risks, prevents insider market manipulation, and punishes wrongdoers.
Clear regulation can protect investors, while uncertainty cannot. The real risk lies in failing to establish a clear regulatory framework. Without a clear regulatory framework, participants in the digital asset market will continue to operate overseas, subject to minimal federal oversight in the U.S.
Misunderstanding 3: The bill creates loopholes to evade U.S. rules.
Fact: The bill fills regulatory gaps. It clearly delineates the jurisdiction between the SEC and the Commodity Futures Trading Commission (CFTC), establishing a joint advisory committee composed of the SEC and CFTC to coordinate digital asset regulatory requirements, and includes specific protections against evasion.
Misunderstanding 4: The bill fails to address illicit finance and national security risks.
Fact: The bill incorporates the strongest illicit finance regulatory framework Congress has considered to date regarding digital assets. It ensures that key digital asset intermediaries comply with anti-money laundering and counter-terrorism financing requirements, strengthens enforcement of sanctions compliance, and empowers the Treasury to address high-risk foreign activities.
Misunderstanding 5: The bill enables illicit financial activities to occur through decentralized finance (DeFi) trading protocols.
Fact: The opposite is true. The bill protects legitimate software development and innovation while combating illegal activities. The legislation clarifies sanction obligations, requiring centralized digital asset intermediaries interacting with DeFi protocols to implement risk management standards, and includes tailored rule-making mechanisms for intermediaries that are not truly decentralized. Code is protected, while misconduct is not.
Misunderstanding 6: The bill criminalizes software developers or prohibits self-custody.
Fact: The bill explicitly protects software developers and preserves the right to self-custody digital assets. Developers who publish or maintain code but do not control customer funds will not be considered financial intermediaries. At the same time, regulators retain the ability to respond to real threats in a targeted and appropriate manner.
Misunderstanding 7: The bill was written by the industry to serve industry interests.
Fact: The bill was developed based on years of bipartisan collaboration, incorporating extensive input from regulators and law enforcement, with a focus on the public interest. It strengthens national security, protects investors, and ensures innovation occurs within a clear and enforceable rule framework.
Key Points: The bill replaces uncertainty with clarity, enhances enforcement against wrongdoers, and provides modern protections for customers, investors, and the financial system.
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