'BitLicense Refugees': ShapeShift, Kraken Talk Escape from New York

If you wanted to hear red-meat rhetoric about New York State's regulatory approach, a fireside chat Tuesday between two of the cryptocurrency industry's most outspoken leaders delivered.

For example, the audience at Consensus 2018 in New York City cheered when ShapeShift CEO Erik Voorhees invoked a local icon to make the case that the state's BitLicense was a case of regulatory overreach.

"Here we are two miles from the Statue of Liberty and you cannot sell CryptoKitties in the state without that license. That's the absurdity of what's happened here," he said.

And Jesse Powell, the CEO of Kraken, got some laughs at the expense of former New York Attorney General Eric Schneiderman.

When Scheniderman's office sent a request for information to Kraken (along with several other exchanges) earlier this year – three years after his company stopped doing business in New York – it felt like "a slap in the face," Powell said.

But then "it turns out this asshole actually slapped people in the face," he quipped, referring to the allegations of physical abuse that forced Schneiderman to resign shortly afterward.

Yet between these zingers and applause lines about the BitLicense – which both executives blame for driving their companies out of state – there were subtler points made. The conversation highlighted the challenges facing both the industry and regulators worldwide as governments come to terms with the ramifications of cryptocurrency.

Powell, for example, pointed out the tension between anti-money-laundering regulations and customer privacy protections. In the case of the BitLicense, he said, Kraken would have had to "disclose all the information about our entire global client base to the state of New York."

That was not only distasteful, Powell said, but "potentially illegal" under the privacy laws of other countries.

"To service New York today, what we'd have to do is create a special purpose entity just to service New York and completely firewall off" all the exchange's other users to protect their privacy, he said.

Alternative models

Widening the lens, Powell contended that the U.S. "has really failed" by leaving it up to local regulators to figure out how to deal with cryptocurrencies.

"In others parts of the world, it's an issue that's being taken seriously by heads of state – presidents, prime ministers. It's not something that's relegated to individual regulators at a state level," he said. "It should be treated as a national economic and national security issue, maybe even an international issue."

Powell cited Japan's Virtual Currency Act as an example of "reasonable" regulation. Although the law is "not perfect," he said, "we're already seeing an explosion of business in Japan" as a result of the clarity it brought.

Voorhees, however, held up a different U.S. state as an example of how to do things right: Wyoming, which recently passed a package of five blockchain-related laws.

The two most important ones, in his view, were a law that excludes tokens from being automatically categorized as securities, and another that excludes digital asset companies from being automatically classified as money transmitters.

"That's the model people should be looking at, they've done it the best," Voorhees said.

And despite using the phrase "statist oppression" early in the conversation to describe his feelings about New York when the BitLicense was created, Voorhees later clarified that he thinks regulators generally have good intentions.

But their aims can be met today by means other than imposing bureaucratic, bank-style regulations on businesses that want to be nothing like traditional financial institutions, he argued.

"The crypto industry and regulators can find common ground in realizing that this incredible new technology can achieve many of the noble goals of the regulators such as protecting consumers," Voorhees said.

Regulatory hopscotch

Ultimately, though, the two executives depicted cryptocurrency as a highly mobile activity that can easily relocate when any jurisdiction starts to appear heavy-handed.

Powell said Kraken's main office is located in San Francisco only as a convenience because that's where he lived when he started the company. Crypto businesses can basically pick up and move anywhere in the world they want to be, he said.

And users need not always move to another place, use a VPN to mask their IP address or even break the law to get around restrictions; Powell shared a tip for New York residents who feel deprived because of the way the BitLicense has limited their cryptocurrency trading options.

"If you're here stuck in New York and you can't trade how you want to trade, set up a Wyoming LLC and you can trade through that and have your business trade for you," he said.

Further limiting regulators' power, Powell said, the rise of decentralized exchanges will give users even more alternatives.

"If they can't do what they want on Kraken they're doing to do it on a decentralized exchange," he said.

And Voorhees said "regulatory hopscotch" by exchanges and other businesses that move from one country to another is only a symptom of a broader phenomenon that won't easily be resolved.

He concluded:

"Bitcoin basically broke down the borders of how value moves across humanity. There is no way that an invention like that doesn't run straight into the jaws of regulations. And that conflict is going to be one of the great themes of my lifetime."

Photo via Wolfie Zhao for CoinDesk. Left to right: CoinDesk research director Nolan Bauerle, Jesse Powell and Erik Voorhees.