Subject: S7-04-23: Webform Comments from Anonymous
From: Anonymous
Affiliation:

Oct. 28, 2023

I've got some comments on S7-04-23 Safeguarding
Advisory Client Assets. The SEC has not provided sufficient evidence
or data supporting its assertion that increased regulation is
necessary to protect consumers from fraudulent practices related to
cryptocurrency custody services. Without such justification, it
becomes difficult for stakeholders to understand why these new rules
are needed at all.
The proposed rule could potentially stifle innovation in the
cryptocurrency industry by creating unnecessary barriers to entry for
new players, particularly those offering novel custody solutions that
do not fit within traditional regulatory frameworks. This could
ultimately harm consumers who stand to benefit from increased
competition and choice in this rapidly evolving market.
There are concerns about potential conflicts of interest arising from
the SEC's dual role as both regulator and enforcer in this space.
This could create an environment where the agency prioritizes its own
interests over those of market participants or investors.
The SEC's authority over cryptocurrency custody is unclear due to
the lack of clear jurisdictional boundaries between federal agencies
like the CFTC, FinCEN, and state-level regulators such as money
transmitter laws. This ambiguity could lead to inconsistent
enforcement actions across different states or regions.
The proposed rule does not provide sufficient guidance on how
custodians should handle private keys associated with digital assets
under their control. Without clear guidelines, there is a risk that
these sensitive pieces of information may fall into the wrong hands
and be used for malicious purposes.
The SEC's proposed rule may create a competitive disadvantage for
U. S. -based cryptocurrency businesses compared to their international
counterparts, as other countries have taken more progressive
approaches towards regulating digital assets custody services. This
could lead to capital flight and reduced investment in the domestic
market, ultimately harming American consumers and entrepreneurs alike
There is a lack of clarity regarding the applicability of existing tax
laws (such as capital gains taxes) to cryptocurrency holdings under
custodial arrangements. This uncertainty could create confusion among
investors and lead to unintended consequences, such as double taxation
or inadvertent non-compliance with reporting requirements
The SEC's proposed rule does not provide sufficient guidance on
how custodians should handle disputes between customers regarding
ownership of digital assets under their control. Without clear
guidelines, there is a risk that these situations may result in
lengthy and costly legal battles, ultimately harming both parties
involved as well as the overall reputation of the industry
There is a lack of clarity regarding the applicability of existing
consumer protection laws (such as anti-money laundering regulations)
to digital assets held by custodians under the proposed rule. This
uncertainty may deter innovation and investment in this rapidly
evolving sector, while also potentially exposing consumers to
increased risks related to fraud or other illicit activities.
The SEC's proposed rule may create a competitive disadvantage for
U. S. -based cryptocurrency businesses compared to their international
counterparts, as other countries have taken more progressive
approaches towards regulating digital assets custody services. This
could lead to capital flight and reduced investment in the domestic
market, ultimately harming American consumers and entrepreneurs alike.
The proposed rule is overly broad and could potentially capture many
activities that do not involve actual custodial services, leading to
unnecessary compliance burdens for market participants who are not
engaged in such activities.
There is a lack of clarity regarding the applicability of existing
securities laws (such as registration requirements) to digital assets
held by custodians under the proposed rule. This uncertainty may deter
innovation and investment in this rapidly evolving sector.
Finally, the proposed rule fails to take into account the unique
characteristics of blockchain technology and decentralized systems,
which could lead to unintended consequences or ineffective enforcement
efforts down the line. For example, imposing traditional custodial
requirements on non-custodial platforms like peer-to-peer exchanges
may not be feasible or appropriate given their inherent design
features and operational models.
Finally, the proposed rule fails to take into account the unique
characteristics of blockchain technology and decentralized systems,
which could lead to unintended consequences or ineffective enforcement
efforts down the line. For example, imposing traditional custodial
requirements on non-custodial platforms like peer-to-peer exchanges
may not be feasible or appropriate given their inherent design
features and operational models
The proposed rule fails to address issues related to cross-border
transactions involving cryptocurrencies, which are becoming
increasingly common due to globalization and advancements in
technology. Without proper oversight, these types of activities could
facilitate money laundering or other illicit financial activity.
The SEC's proposed rule does not provide sufficient guidance on
how custodians should handle forks or airdrops of new digital assets
associated with existing holdings under their control. Without clear
guidelines, there is a risk that these events may result in unintended
consequences, such as unexpected tax liabilities or loss of ownership
rights over the newly created tokens.
The SEC's proposed rule may create a competitive disadvantage for
U. S. -based cryptocurrency businesses compared to their international
counterparts, as other countries have taken more progressive
approaches towards regulating digital assets custody services.
The proposed rule could potentially stifle innovation in the
cryptocurrency industry by creating unnecessary barriers to entry for
new players, particularly those offering novel custody solutions that
do not fit within traditional regulatory frameworks. This could
ultimately harm consumers who stand to benefit from increased
competition and choice in this rapidly evolving market
The proposed rule fails to address issues related to insurance
coverage for cryptocurrency holdings under custodial arrangements.
Without adequate protection against potential losses due to hacking or
other security breaches, customers may be hesitant to entrust their
digital assets with third-party service providers.
The SEC's proposed rule does not provide sufficient guidance on
how custodians should handle disputes between customers regarding
ownership of digital assets under their control. Without clear
guidelines, there is a risk that these situations may result in
lengthy and costly legal battles, ultimately harming both parties
involved as well as the overall reputation of the industry.
The proposed rule fails to address issues related to smart contracts
and other self-executing code used in connection with cryptocurrency
custody services. Without proper oversight, this technology could be
exploited for fraudulent purposes or lead to unintended consequences
due to coding errors or malicious actors manipulating the underlying
logic of these systems
There is a lack of clarity regarding the applicability of existing
consumer protection laws (such as anti-money laundering regulations)
to digital assets held by custodians under the proposed rule. This
uncertainty may deter innovation and investment in this rapidly
evolving sector, while also potentially exposing consumers to
increased risks related to fraud or other illicit activities
The proposed rule fails to address issues related to insurance
coverage for cryptocurrency holdings under custodial arrangements.
Without adequate protection against potential losses due to hacking or
other security breaches, customers may be hesitant to entrust their
digital assets with third-party service providers
The SEC's proposed rule does not provide sufficient guidance on
how custodians should handle forks or airdrops of new digital assets
associated with existing holdings under their control. Without clear
guidelines, there is a risk that these events may result in unintended
consequences, such as unexpected tax liabilities or loss of ownership
rights over the newly created tokens
There is a lack of clarity regarding the applicability of existing tax
laws (such as capital gains taxes) to cryptocurrency holdings under
custodial arrangements. This uncertainty could create confusion among
investors and lead to unintended consequences, such as double taxation
or inadvertent non-compliance with reporting requirements.
The proposed rule fails to address issues related to smart contracts
and other self-executing code used in connection with cryptocurrency
custody services. Without proper oversight, this technology could be
exploited for fraudulent purposes or lead to unintended consequences
due to coding errors or malicious actors manipulating the underlying
logic of these systems.
The definition of "custody" under the proposed rule may be
too narrow or vague, failing to adequately address all forms of
digital asset storage and management. This could create gaps in
regulatory oversight and leave certain types of crypto assets
vulnerable to fraudulent practices.
In compliance with the APA, please evaluate my relevant and
substantive comments.