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President Biden Signs Executive Order on Digital Assets

Steven.Lofchie@friedfrank.com's picture
Commentary by Steven Lofchie

President Joseph R. Biden signed an "Executive Order on Ensuring Responsible Development of Digital Assets," which outlined a "first ever, whole-of-government approach" to address the risks and potential benefits of digital assets.

In an accompanying Fact Sheet, the White House identified seven key priorities:

  1. The protection of U.S. consumers, investors and businesses. The President directed Treasury to assess and develop "policy recommendations to address the implications of the growing digital asset sector and changes in financial markets for consumers, investors, and businesses, while promoting equitable economic growth."

  2. The protection of U.S. financial stability and mitigation of systemic risk. The President directed the Financial Stability Oversight Council to "identify and mitigate systemic risks posed by digital assets and to develop recommendations to address any regulatory gaps."
  3. The mitigation of illicit finance and national security risks. The President directed all relevant U.S. Government agencies to give an "unprecedented focus of coordinated action" in order to mitigate all risks associated with digital assets.
  4. The promotion of U.S. leadership in the global financial system. The President directed the Department of Commerce to establish a framework for Government agencies to use to promote U.S. technology and economic competitiveness.
  5. The promotion of equitable access to safe and affordable financial services. The President directed the Secretary of the Treasury to produce a report on digital money and payment systems that would include the "implications for economic growth, financial growth and inclusion," including as to "the risk of disparate impact to communities who have a long standing history of insufficient access to safe and affordable financial services."
  6. The support of the U.S. Government to ensure technological advances and the responsible development of digital assets. The President directed government agencies to take definitive steps to develop and implement digital asset systems while prioritizing the data privacy, security and exploitation of investors.
  7. The exploration of a U.S. Central Bank Digital Currency ("CBDC"). The President directed U.S. Government agencies to analyze the "technological infrastructure and capacity needs for a potential U.S. CBDC in a manner that protects Americans’ interests."

Issuance of the Executive Order was accompanied by supportive statements from numerous senior U.S. government and regulatory officials including Treasury Secretary Janet Yellen; National Economic Council Director Brian Deese and National Security Advisor Jake Sullivan; Senate Banking Committee Chair Sherrod Brown; CFTC Chair Rostin Behnam; and CFPB Director Rohit Chopra.

Commentary

According to the Executive Order, digital assets have implications for climate change, financial growth, financial inclusion, illicit finance, international engagements, democratic values, global competitiveness, and much more. The Executive Order tells us that the United States must be a "global leader [in the] development and adoption of digital assets and related innovation" but we must also develop very substantial regulatory systems.

In light of the above, the President is requiring the involvement of at least eight different Cabinet members, numerous agencies, and every federal financial regulator, among others, to formulate policies. Given the sheer number of agencies to be involved, the complete diversity of interests to be considered, and the absence of any prioritization of those interests, the Executive Order does not actually provide much in the way of direction.  

While a possible interpretive theory is that this Executive Order will move the United States to develop a more digital-friendly regulatory system, it is equally possible that the Order signals very significant additional regulation. (See, e.g. SEC Commissioner Lee's recent description of the digital asset industry as one that has grown by "largely def[ying] existing laws and regulations," suggesting many new regulatory proposals to come.) Further, the Order's frequent references to climate change may be understood as just "politics as usual," or as many expect, a precursor to regulation on energy usage for mining.  

The Executive Order does seem to indicate federal movement toward the development of a Central Bank Digital Currency. Section 4 of the Executive Order is devoted to this topic and there are numerous other references to the issue throughout the Order. It would seem that some more specific proposal is likely imminent on this topic. 

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