Showing posts with label prepaid. Show all posts
Showing posts with label prepaid. Show all posts

Monday, November 19, 2012

Currencies of the Future

By Douglas French
Laissez Faire Today
Tuesday, November 13, 2012

http://lfb.org/today/currencies-of-the-future/

Many people complain about government control of currency, but only a few do something about it. I’m not talking about movements to “audit the Fed” and such. I’m talking about real innovation that makes an end run around the government’s iron grip on the monetary system.

A few of us old folks might like to return to the days of slapping a silver dollar on the bar for a shot of whiskey, but the younger techno-savvy generation sees paying for their Negroni cocktail with virtual currency from their hand-held device. To serve this market, a new world of virtual currencies has popped up spontaneously.

In a debate, Mitt Romney said, “You couldn’t have people opening up banks in their garage and making loans.”

Really? Some people are thinking precisely along these lines and even going further to create new units of accounting.

You might think these people are crazy. After all, to be a proper money, a currency must have a nonmonetary value, a high value per unit weight, a fairly stable supply and be divisible, durable, recognizable, and homogeneous. Gold and silver fit the bill perfectly. But does that mean something else (or a variety of things) can’t?

Money develops from being the most marketable good that in turn is used for indirect trade. Historically, that has been gold and silver. However, governments have worked very hard to demonetize gold and silver with taxes on precious metals and legal tender laws. And while a few people swear by storing their wealth in gold and silver, in relation to all other financial assets, the percentage of portfolios invested in precious metals is only 1%.

The idea that government is going to re-shackle its currency to gold anytime soon, when the only way federal governments are staying in business is with an unfettered printing press, is naive. Governments always have driven and will keep driving the value of their currencies to the value of the paper. It may take decades, it may take centuries, but it will happen eventually.

The answer to the currency question may not be to reform government in a way that it can’t reasonably be reformed, but to turn loose entrepreneurial genius to solve the problem and create a quality product. There are plenty of government roadblocks, but every new innovation encounters government resistance. Entrepreneurs persevere. However, this is a particularly risky area. There are currency entrepreneurs sitting in jail for competing with the government.

In 2009, Japanese programmer “Satoshi Nakamoto” (not his real name) was designing and implementing Bitcoin. It’s not for the faint of heart. It’s proven to be highly volatile. But it’s also proven to be very useful in a digital age.

Some people in the free-market community don’t know what to think of Bitcoin and have dismissed it. They say no currency can exist that doesn’t have a prior root in physical commodity.

That is because, as Robert Murphy summarized Ludwig von Mises: “We can trace the purchasing power of money back through time until we reach the point at which people first emerged from a state of barter. And at that point, the purchasing power of the money commodity can be explained in just the same way that the exchange value of any commodity is explained.”

The naysayers contend Bitcoins never had a nonmonetary commodity value. The case for it is then dismissed without thought or argument. However, Mises built his “regression theorem” on the work of Carl Menger, the father of Austrian economics and subjective value.

In Menger’s view, economizing individuals constantly look to make their lives better through trade. These individuals trade less tradable goods for more tradeable goods. What makes goods more tradeable, Menger emphasizes, is custom in a particular locale.

“But the actual performance of exchange operations of this kind presupposes a knowledge of their interest on the part of economizing individuals,” Menger writes. But Menger goes on to explain that not all individuals gain this knowledge all at once. A small number of people recognize the marketability of certain goods before most others.
These might be considered currency entrepreneurs. They anticipate consumer needs and demands, and as is the case with any other good or service, these entrepreneurs recognized more salable goods before the majority of people.
"Since there is no better way in which men can become enlightened about their economic interests than by observation of the economic success of those who employ the correct means of achieving their ends, it is evident that nothing favored the rise of money so much as the long-practiced and economically profitable acceptance of eminently saleable commodities in exchange for all others by the most discerning and most capable economizing individuals."
For example, cattle were, at one time, the most saleable commodity and were thus considered money. Although cattle money sounds unwieldy, the Greeks and the Arabs were both on the cattle standard. This currency had four legs that could move itself, and grass was everywhere, so feeding it was inexpensive.

But then the division of labor led to the formation of cities, and the practicality of cattle money was over. Cattle were no longer marketable enough to be money. Cattle still had value, but, “They ceased to be the most saleable of commodities, the economic form of money, and finally ceased to be money at all,” Menger explains.

Then began the use of metals as money: Copper, brass and iron, and then silver and gold.

But Menger was quick to point out that various goods served as money in different locales.
"Thus money presents itself to us, in its special locally and temporally different forms, not as the result of an agreement, legislative compulsion, or mere chance, but as the natural product of differences in the economic situation of different peoples at the same time, or of the same people in different periods of their history."
So while people contend that money must be this or must be that, or come from here, or evolve from there, Menger, the father of the Austrian school, seems to leave it up to the market. When a money becomes uneconomic to use, it loses its marketability and ceases to be money. Other marketable goods emerge as money. It’s happened throughout history and likely will continue, despite government wanting to freeze the world in place to its liking.

Which brings us back to Bitcoin, what the European Central Bank (ECB) calls in its latest report “the most successful — and probably most controversial — virtual currency scheme to date.”

Ironically, while some economists are pooh-poohing Bitcoin, the ECB devotes some of their lengthy report to the idea that the Austrian school of economics provides the theoretical roots for the virtual currency. The business cycle theory of Mises, Hayek and Bohm-Bawerk is explained in the report and Hayek’s Denationalisation of Money is mentioned.

The report writers indicate that Bitcoin supporters see the virtual currency as a starting point for ending central bank money monopolies. Like Austrians, they criticize the fractional-reserve banking system and see the scheme as inspired by the classic gold standard.

Bitcoins are already used on a global basis. They can be traded for all sorts of products, both material and virtual. Bitcoins are divisible to eight decimal places and thus can be used for any size or type of transaction.

Bitcoins are not pegged to any government currency and there is no central clearinghouse or monetary authority. Its exchange rate is determined by supply and demand through the several exchange platforms that operate in real time. Bitcoin is based on a decentralized peer-to-peer network. There are no financial institutions involved. Bitcoin’s users take care of these tasks themselves.

Additional Bitcoin supply can only be created by “miners” solving specific mathematical problems. There are somewhere around 10 million Bitcoins currently in existence, and more will be released until a total of 21 million have been created by the year 2140. According to Bitcoin’s creator (whomever he or she is), mining on Bitcoin provides incentives to be honest:
"If a greedy attacker is able to assemble more CPU power than all the honest nodes, he would have to choose between using it to defraud people by stealing back his payments, or by using it to generate new coins. He ought to find it more profitable to play by the rules, such rules that favour him with more new coins than everyone else combined, than to undermine the system and the validity of his own wealth".
The ECB’s report explains that Bitcoin supply is designed to grow in a predictable fashion. “The algorithms to be solved (i.e., the new blocks to be discovered) in order to receive newly created Bitcoins become more and more complex (more computing resources are needed).”

This steady supply increase is to avoid inflation (decrease in the value of Bitcoins) and business cycles caused when monetary authorities rapidly expand money supplies.

Bitcoin has become the currency of the online black market. For instance, The Silk Road (the Amazon of the illegal drug trade that can only be accessed through private networks using the IP scrambling service called Tor) only accepts payments in Bitcoin. However, as the ECB report points out, there are only about 10,000 Bitcoin users, and the market is illiquid and immature.

So why does the ECB give a damn about Bitcoin and other virtual currencies? The central bankers are worried that they are not regulated or closely supervised, that they could represent a challenge for public authorities and that they could have a negative impact on the reputation of central banks.

At the same time, the report makes the point that “these schemes can have positive aspects in terms of financial innovation and the provision of additional payment alternatives for consumers.”

The report says big players in the financial services arena are purchasing companies in the virtual payments space. VISA acquired PlaySpan Inc., a company with a payment platform that handles transactions for digital goods.

American Express (Amex) purchased Sometrics, a company “that helps video game makers establish virtual currencies and… plans to build a virtual currency platform in other industries, taking advantage of its merchant relationships.”

This would dovetail with American Express’ entry into the prepaid credit card business. Banking industry insiders are upset with Amex and Wal-Mart, that also is offering prepaid cards, because these prepaid accounts would amount to uninsured deposits, according to Andrew Kahr, who wrote a scathing piece on the issue for American Banker.

Kahr rips into the idea with this analogy:
"To provide even lower ‘discount prices,’ should Wal-Mart rent decaying buildings that don’t satisfy local fire laws and building codes — and offer still better deals to consumers? And why should Walmart have to honor the national minimum wage law, any more than Amex honors state banking statutes? With Bluebird, Amex can already violate both the Bank Holding Company Act and many state banking statues."
Kahr is implying that regulated fractionalized banking is safe and sound, while prepaid cards provided by huge companies like Amex and Wal-Mart is a shady scheme set up to rip off consumers. The fact is, in the case of IndyMac, panicked customers forced regulators to close the S&L by withdrawing only 7% of the huge S&L’s deposits. It was about the same for WaMu and Wachovia when regulators engineered sales of those banks being run on. Bitcoin supporters, unlike the general public, are well aware of fractionalized banking’s fragility.

Maybe what the banking industry is really afraid of is the Amexes and Wal-Marts of the world creating their own currencies and banking systems. Wal-Mart has tried to get approval to open a bank for years, and bankers have successfully stopped the retail giant for competing with them.

However, prepaid credit cards might be just the first step toward Wal-Mart issuing their own currency — Marts — that might initially be used only for purchases in Wal-Mart stores. But over time, it’s not hard to imagine Marts being traded all over town and easily converted to dollars, pesos, Yuan, or other currencies traded where Wal-Mart has stores.

Governments are destroying their currencies, and businesses know it. Entrepreneurs won’t just stand by and theorize. They’re doing something. They recognize a market opportunity. The banking industry realizes it. As Mr. Kahr concluded his article that calls for an end to all uninsured deposits: “Otherwise, we might have an unregulated Facebook or Google of payments, even PayPal, quickly becoming both highly vulnerable and TBTF. (It could actually be run by someone wearing a hoodie, without tie or even white shirt!)”

Here at LFB, we don’t know what tomorrow’s money will be. Digits and computer algorithms? Silver and gold coins engraved with someone wearing a hoodie, perhaps? What we know for sure is that we’re rooting for enterprising entrepreneurs to give the government a run for their money in the money business. Watch this space.

Douglas E. French is senior editor of the Laissez Faire Club and former president of the Mises Institute. Reprinted with permission. 

For further reading/viewing:
"Jeffrey Tucker on the future of private money" (video), Goldmoney, November 12, 2012

Monday, November 12, 2012

Department Of Homeland Security To Scan Payment Cards At Borders And Airports

By Jon Matonis
Forbes
Wednesday, November 7, 2012

http://www.forbes.com/sites/jonmatonis/2012/11/07/department-of-homeland-security-to-scan-payment-cards-at-borders-and-airports/

Typical wireless electronic card reader
Travelers leaving or entering the United States have long had to declare aggregated cash and other monetary instruments exceeding $10,000. Now, under a proposed amendment to the Bank Secrecy Act, FinCEN (Financial Crimes Enforcement Network) will also require travelers to declare the value of prepaid cards that they are carrying, known now as "tangible prepaid access devices."

Expected to be finalized by the end of this year, the cross-border reporting modifications stem from a broader October 2011 definition of payment methods and form factors that replaced the term "stored value" with the term "prepaid access" in an effort to more accurately describe the process of accessing funds held by a payment provider.

Enforceability falls to U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection both within the Department of Homeland Security, which is already developing advanced handheld card readers that can ascertain whether a traveler is carrying a credit card, debit card, or prepaid card. This differentiation is important because only prepaid card balances will need to be added to declaration report forms.

Acknowledging that many questions still remain and that enforcement may not be straightforward, Cynthia Merritt, assistant director of the Retail Payments Risk Forum at the Federal Reserve Bank of Atlanta, had this to say about the handheld readers:
"Furthermore, according to the comments, the enforcement challenge is not new, nor is the concept of a device or document that can be used to access value. The current challenges are similar to those presented in the past with other monetary instruments such as checks, money orders, and traveler checks."
Merritt also stated that, "When law enforcement takes possession of a cash or monetary instrument at the border, they are effectively holding the funds, but not so with a prepaid card or other device. Holding the card does not provide access to the underlying funds."

Other questions to be settled include how to determine mobile phone wallet and key fob balances that can function in a manner similar to card swiping, how to distinguish between reloadable and non-reloadable prepaid cards, how to distinguish between bank-issued and non-bank-issued prepaid cards, should closed loop gift cards be included in the cross-border reporting requirements, what to do about cards that clear customs with a minimal balance but are then subsequently reloaded with an amount in violation of the reportable limits, and what to do about a large number of nonpersonalized, unembossed cards.

Also, would a traveler have legal recourse for damages if agents seized a proper debit card in the mistaken belief that it was a reportable prepaid card?

These complications and others imply that FinCEN's NPRM [Notice of Proposed Rule Making] may yet undergo some revisions in order to bring the regulations in sync with the realities of the prepaid card industry.

In the meantime, travelers with a memorized Bitcoin private key can breathe a sigh of relief, because according to an important April 9th, 2012 letter to FinCEN Director James Freis from Homeland Security Investigations it appears that intangible brainwallets are safe for the moment:
"Should the border declaration apply to codes, passwords and other intangibles as well as to any tangible object that is dedicated to accessing prepaid funds?"
"HSI believes that border declaration should not apply to codes, passwords and other intangibles. Identification and verification of intangibles in the context of border enforcement poses logistical and potential legal issues that are not contemplated by currency and monetary instrument declaration regulations. The structure of the currency and monetary instruments declaration regime, hinges on the existence of a physical object. The language requires something that can be passed from one individual to another in order to be presented to a third party for execution/payment."

Saturday, October 20, 2012

Payoneer Quietly Enters Gibraltar Prepaid Market

By Jon Matonis
Forbes
Monday, October 15, 2012

http://www.forbes.com/sites/jonmatonis/2012/10/15/payoneer-quietly-enters-gibraltar-prepaid-market/

Payoneer, a New York-based global payments and money transfer company, has quietly launched an EU subsidiary situated in Gibraltar having been approved by the financial regulator there in mid-2012.

Payoneer (EU) Limited is steadily building out its infrastructure and it is not clear when, or if, they intend to migrate their prepaid card portfolio to the Gibraltar location. Howard Gibbs is Managing Director with Lisa Ah-Moye as Finance Director and Mark Taylor as Money Laundering Reporting Officer.

In addition to facilitating global low-cost money transfers to over 200 countries, the EU subsidiary is focusing on payout solutions for international corporates, multi-level marketing companies, and affiliate networks.

Payoneer maintains its R&D center in Tel Aviv, Israel and is a privately-held venture with funding from Greylock Partners, Carmel Ventures and Crossbar Capital. They are most known for their Prepaid Mastercard product that corporate customers use to pay staff, affiliates, freelancers, and other service providers. However, since Payoneer is not a licensed banking institution they have had to outsource their card issuing business.

The self-governing jurisdiction of Gibraltar changes all of that. There are only three non-bank E-money institutions authorized under the Financial Services (Banking) Act for issuing means of payment in the form of electronic money. In addition to Payoneer (EU), the Gibraltar Financial Services Commission lists Wave Crest Holdings and Transact Network.

Why is this significant? For starters, it's a relatively small number of firms and it is not a new regulatory designation for Gibraltar as it falls under the EU E-Money Directive of 2009 which amended the 2006 and 2005 Directives that repealed the 2000 Directive. The E-Money Directive is transposed into law and applied nationally by the various member countries within the EU Single Market.

It is surprising that the Directive is not being leveraged more by the established U.S. players because it grants a license and the authority to issue prepaid Mastercard and VISA products directly after attaining card association membership thereby dramatically lowering the barriers to entry. Furthermore, it gives international brands an issuance platform throughout the whole European continent.

Previously, non-banks in the U.S. would have to negotiate a contract with a chartered, regulated banking entity like Choice Bank Limited in Belize or First Covenant Bank in Georgia or MetaBank in Iowa for their prepaid card issuing. Now they can become an issuer themselves.

In related prepaid debit card news, Delaware-based The Bancorp, Inc. has agreed to acquire the assets of Transact Network Limited, the largest e-money licensee and prepaid issuer in Gibraltar.

Frank Mastrangelo, President and COO of The Bancorp stated, "The acquisition of this platform from Transact Network, a well regarded Pan-European electronic money institution, will establish a European Payment Solutions presence for Bancorp and facilitate European expansion for many of Bancorp’s existing 'Payment Solutions' clients. It will also enable Bancorp to leverage its current BIN Sponsorship and Program Management Platforms for a wider set of European Payment solutions and offer enhanced products, flexibility, capability, and scalability. We will utilize our success and experience with our US payment solutions platform to grow our European presence."

Saturday, May 12, 2012

Bitcoin Funded Debit Cards

By Jon Matonis
Forbes
Monday, May 7, 2012

http://www.forbes.com/sites/jonmatonis/2012/05/07/bitcoin-funded-debit-cards/

Yes, it's entirely possible to fund your existing debit card, or credit card, with your accumulated bitcoin. And I don't mean that you are shipped a generic, low-limit prepaid VISA or Mastercard from some anonymous reseller. I mean that you convert bitcoin online to dollars or euros and the funds are available to spend with a card that you are most likely already holding in your wallet.

Why is this so significant? It's important because it leverages a little-known type of transaction that is available on the VisaNet system called 'Original Credit Transaction'. The other major card payment networks have a similar feature too. These transactions act like a refund or credit transaction when you return an item to a store except that they don't have to be associated with an original purchase. Essentially, they enable your card to be a two-way payment device. Surprisingly, not many financial institutions have taken advantage of this feature yet but I expect that to change.



Visa Personal Payments, already offered by financial institutions outside the U.S., became available in the U.S. market last year marking the first time that a major payment network has introduced a global requirement for account issuers to accept incoming funds. It's the technology behind now-merged P2P service providers ZashPay and Popmoney.

Previously, it was cumbersome for bitcoin account holders to transact in national currencies because they had to go through one or more exchanges and then wait further for funds to arrive in a bank account or other intermediary like the formerly bitcoin-friendly Paxum. Now these personal payments are being offered by e-currency exchanges as a way to provide easy worldwide access to e-currency account balances most notably by AurumXchange. The digital currency exchange operated by Dominica-based Aurum Capital Holdings, Inc. supports bitcoin as well as Liberty Reserve, Pecunix, Perfect Money, and c-gold and they offer two choices for cashing out into a card-based product.

The first option is the Withdraw2Card service that does not require any sender identity verification. Requiring only the destination card number and expiration date (name and CVV code are not required), funds can be transferred to any credit or debit card in any country in the world. If the destination account currency is not dollars or euros then it will be converted to the native currency automatically. Service fee is $9 plus 1.99% (for MtGox USD) with a $1,000 maximum transfer amount and you should not send more than the credit card's limit. The bitcoin portion of the transaction is accomplished through the use of redeemable coupon codes from the popular bitcoin exchanges that act as digital bearer certificates. According to AurumXchange, they plan to offer direct two-way convertibility for bitcoin in the near future so you won't need the redeemable code.

This service is ideal for regions of the world where a large majority of the population may not have bank accounts or where international wires are cost-prohibitive. AurumXchange's General Manager Roberto Gutierrez explains, "The service so far has been tremendously popular. Just counting countries alone where people don't have access to bank accounts or foreign wires are highly taxed or scrutinized, such as Africa, Brazil and China to name a few, we have processed over 3,000 orders since we started a few weeks ago. North American and European customers have been using the service quite a lot as well especially for small transactions that would otherwise be too expensive to conduct through means such as international wire transfers."

The second option is the AurumXchange Premium Mastercard issued through North Carolina-based Four Oaks Bank which comes with instant funds availability. After a $24.99 two-year membership fee, the card will be shipped for free anywhere in the world via first class mail.

OKPAY is another interesting provider in the bitcoin debit card space. They offer the OKPAY Debit Card which is issued by CSC24Seven.com Limited, a financial institution licensed by the Central Bank of Cyprus to issue cards. Founded in 2007, OKPAY, Inc. is a subject of British Virgin Islands (BVI) regulations.

Now that they have completed their bitcoin integration into the OKPAY system, it is possible to fund your OKPAY account directly with bitcoin, withdraw via bitcoin, and use bitcoin as a payment option for purchases of goods and services. Although, they do not offer the Original Credit Transaction feature to any card, they will provide timely and direct conversion of bitcoin to their proprietary Mastercard product.

By removing friction from the process, bitcoin becomes easier to spend overall because not every merchant will accept bitcoin directly for payment yet and not all transactions demand irreversibility and privacy. Logically as a consumer, you may still want your VISA chargeback rights for certain purchases. The Original Credit Transaction is an excellent way to leverage the legacy card payment network to facilitate the growth of the bitcoin network and these two exchangers are in the vanguard.

Saturday, November 5, 2011

U.S. Treasury's FinCEN Issues Guidance on Prepaid Access Rule

By Financial Crimes Enforcement Network
Wednesday, November 2, 2011

http://www.fincen.gov/news_room/nr/html/20111102.html

The Financial Crimes Enforcement Network (“FinCEN”) is issuing these Frequently Asked Questions (“FAQs”) to assist providers and sellers of prepaid access in understanding the scope of the final rule imposing certain recordkeeping and reporting requirements under the Bank Secrecy Act (the “BSA”). The Prepaid Access Final Rule (the “Rule”) was issued July 29, 20111 and has generated many questions. These FAQs are intended to provide interpretive guidance for the Rule; they do not supersede or replace any part of it.

The Rule establishes a more comprehensive approach for regulating prepaid access and requires providers and sellers of prepaid access to (1) file suspicious activity reports (“SARs”), (2) collect and retain customer and transactional information and (3) maintain an anti-money laundering program. These BSA requirements are similar to those that apply to other categories of Money Services Businesses (“MSBs”). The Prepaid Access Rule amends some of the provisions within FinCEN’s MSB regulations.

1. What types of prepaid access arrangements are covered under the Rule?

The Rule defines a “prepaid program” as “an arrangement of one or more persons acting together to provide prepaid access.” Prepaid access arrangements can vary greatly, ranging from travel programs to university campus programs to public transportation programs and many others, all with specific features and characteristics targeted to different audiences and activities. The Rule details types of activities that would and would not subject a specific prepaid access arrangement to BSA requirements. The Rule excludes certain low-risk prepaid access arrangements from being subject to regulation.

Three types of prepaid access arrangements are excluded from the definition of a prepaid program under the Rule, those that: 1) provide closed loop prepaid access to funds not to exceed $2,000 maximum value on any day; 2) provide prepaid access solely to funds provided by a government agency; or 3) provide prepaid access solely to funds from certain pre-tax flexible spending arrangements for health care or dependent care expenses, or from Health Reimbursement Arrangements for health care expenses.

There are two types of prepaid access arrangements that have a qualified exclusion but that, if they can be used in any of three particular capacities, are not entitled to that exclusion and are therefore prepaid programs subject to regulation. The rationale is that the expanded capacities may obscure financial transparency. Open loop prepaid access that does not exceed $1,000 maximum value on any day, and prepaid access to employment benefits, incentives, wages or salaries (”payroll”), are not prepaid programs subject to BSA regulatory requirements so long as the prepaid access cannot (1) be used internationally, (2) allow transfers of value from person to person within the arrangement, or (3) be reloaded from a non-depository source. If any one of these features is part of the arrangement, it will be a covered as a prepaid program under the Rule.

2. Who is a provider of prepaid access?

A provider of prepaid access can be determined in one of two ways under the Rule.

A. The provider of prepaid access for a prepaid program is the participant in that prepaid program who registers with FinCEN as the provider of prepaid access for that program. Determination of which participant should register is a matter left to the participants. However, it is presumed that the participant registering as the provider of prepaid access has agreed to perform all of the duties required for providers of prepaid access under the Rule.

B. If none of the participants in a prepaid program registers with FinCEN as the provider of prepaid access for that program, the provider of prepaid access is the participant in the program with principal oversight and control over the program.

See also question 9 below.

3. Who is, and who isn’t, a “seller of prepaid access” under the Rule?

A person that accepts payments for an initial or subsequent loading of prepaid access, including a general purpose retailer such as a pharmacy, convenience store, supermarket, or discount store, is not considered a “seller of prepaid access” if:

(a) it does not sell prepaid access under a prepaid program that can be used before the user’s identification needs to be verified; and
(b) it has policies and procedures in place that are reasonably adapted to prevent the sale of more than $10,000 of any type of prepaid access to any one person on any one day.

Such a person is considered a “seller of prepaid access” if it either sells prepaid access described in item (a) above or doesn’t have policies and procedures, and does engage in sales, described in item (b) above.

Seller Questions:

4. How do I know whether my policies and procedures are “reasonably adapted” to prevent a sale of more than $10,000 to any person during any one day?

There is no one set of policies and procedures that is “reasonably adapted” to prevent sales of prepaid access that exceed $10,000 to any person during any one day. Such policies and procedures must be risk-based and appropriate to the particular retailer in question, taking into account facts such as its typical customers, its location(s), and the volume of its prepaid access sales. The fact that a retailer sells over $10,000 in prepaid access to one person in one day does not in and of itself mean that the retailer’s policies and procedures are not “reasonably adapted to prevent such a sale.”

5. Are businesses deemed “sellers” under the Rule for distributing prepaid access to other businesses ?

No. Distribution of prepaid access products to other businesses for further distribution or sale to end users/consumers by those other businesses is not the type of activity intended to be covered by the Rule. This type of activity would not subject a business to the prepaid access regulation regardless of whether the activity exceeded $10,000 to one business (i.e., person) in one day. The definition of “seller” is intended to address sales to the end user/consumer of the prepaid access product, not to apply to businesses in the distribution channels that move the prepaid access products to the market.

6. Are businesses deemed “sellers” if they provide non-depository reloads to prepaid access under the Rule?

It depends. An entity reloading prepaid access from a non-depository source is a “seller,” subject to the provisions of the Rule, if it (1) reloads funds onto prepaid access that is part of a prepaid program not subject to initial customer verification, or (2) both reloads in excess of $10,000 for any person on any given day, and does not have policies and procedures reasonably adapted to prevent such reloading for any person on any given day.

Persons providing non-depository reloads of funds or the value of funds to prepaid access are not sellers if:

  • they reload less than $10,000 of prepaid access that is not part of a prepaid access program covered under the Rule for any person on any given day;
  • they reload less than $10,000 of prepaid access that is part of a prepaid program covered under the Rule, but is subject to verification procedures after the initial sale of the prepaid access, for any person on any given day; and
  • they have policies and procedures reasonably adapted to prevent the reloading of $10,000 for any person on any given day.

7. What does the Rule require sellers to do with respect to non-depository reloads? Do these requirements include customer information collection requirements?

A person that qualifies as a “seller of prepaid access” because of the person’s reload business (see question 6 above) has the same obligations as any other “seller of prepaid access,” including AML program, SAR filing, and recordkeeping requirements. However, such a seller does not have to obtain customer identification information under 31 C.F.R. 1022.210 from customers that have already provided customer identification information with respect to the prepaid access that they are reloading.

8. What are the Rule’s requirements for “sellers of prepaid access?”

Sellers of prepaid access will need to develop and implement an effective AML program, report suspicious activity, and comply with recordkeeping requirements related to customer identifying information and transactional data. Sellers, as agent MSBs, will not have to register with FinCEN as MSBs.

9. Can a bank be an MSB, such as a provider of prepaid access?

No. The BSA regulations preclude a bank from being deemed any category of MSB; accordingly, a bank cannot be a provider of prepaid access subject to the requirements of the Rule. In situations in which a bank exercises “principal oversight and control,” no participant is required to register as the provider of prepaid access; however, if a participant other than a bank chooses to register, that participant is the provider of prepaid access and has the responsibilities under the rule notwithstanding the bank’s participation in the prepaid program. The Rule does not relieve banks of their existing BSA obligations, including with respect to prepaid programs with which they are involved.

10. Is a prepaid access program manager that is a participant in a prepaid program subject to the Rule if it is not the provider of prepaid access for that prepaid program (i.e., another party has registered as the provider of prepaid access)?

A program manager that is not the provider of prepaid access has no obligations under the Rule.

Prepaid Program Questions:

11. Is an arrangement that provides reloadable temporary prepaid access devices a “prepaid program?”

Such an arrangement is excluded from the definition regardless of whether the temporary device is reloadable or not, so long as the features of that device are limited in specific ways. If its maximum value, use, or withdrawal limit is less than $1,000 on any day, and it cannot be used internationally, reloaded at a non-depository source, or used to transfer value among the users, it is not subject to the Rule. Its temporary or reloadable nature is irrelevant in this analysis.

12. Is a provider or seller of phone cards subject to the Rule as a prepaid program provider or seller of prepaid access?

It depends. There is no specific exclusion from the Rule for phone cards. A provider or seller of phone cards usable solely to obtain phone service is providing or selling closed loop prepaid access. A provider of closed loop prepaid access is not a prepaid program provider unless the amount of the closed loop prepaid access associated with any one prepaid access device exceeds $2,000. Note that the ability to use the device internationally – which we understand is often the case with phone cards – would not change this analysis for closed loop prepaid access. The closed loop exclusion applies irrespective of whether the prepaid access can be used internationally.

A seller of phone cards that are usable solely to obtain phone service is a seller of prepaid access if it both sells in excess of $10,000 in phone cards to any person on any given day, and does not have policies and procedures reasonably adapted to prevent such sales to any one person on any one day. If so, it is deemed an agent MSB and does not have any registration requirements.

13. Are devices sold for future access to products or services (e.g., songs, iTunes, telephone minutes, megabytes, wireless top-up, games, software, etc.) prepaid access devices under a prepaid program subject to the Rule?

Many of these products would likely be considered prepaid access. However, depending on the structure of the program, they would probably be considered closed loop prepaid access and as such would not be part of a prepaid program under the Rule unless they allowed maximum value or loads above the $2,000 threshold.

14. What does “loading additional funds or the value of funds from non-depository sources” mean?

“Loading additional funds or the value of funds from non-depository sources” means providing funds or the value of funds intended for prepaid access by means of an entity that is not a depository institution, where that entity will then arrange for the funds to be available through the prepaid access. An arrangement under which prepaid access devices can be reloaded in this manner is a prepaid program under the Rule. Re-loads that are made through a depository institution would include but are not limited to ACH transfers from a bank account, cash or other deposit at a bank, or a check drawn on a bank and payable to the provider of prepaid access. Re-loads that are not made through a depository institution would include but are not limited to, reloads through retail store transactions (e.g., cash, check or credit card), wire transfers originating at money services businesses, or checks payable to a payee other than the provider of prepaid access.

Closed Loop Questions:

15. Is closed loop prepaid access that can be used domestically and internationally subject to the Rule if it is below threshold?

No, closed loop prepaid access below the $2,000 threshold that can be used internationally is not part of a prepaid program.

16. Is it correct that the $2,000 threshold for closed loop prepaid access attaches to the device or vehicle, not the person?

Yes, that is correct. The $2,000 threshold for closed loop prepaid access is per device or vehicle. It does not require aggregation of all purchases of separate (i.e. distinct) closed-loop prepaid access devices or vehicles bought by an individual in a single day. Note, however, that businesses that sell more than $10,000 of any type of prepaid access to an individual in a day may be sellers of prepaid access under the Rule.

17. How does the Rule’s $2,000 daily limit apply to closed loop prepaid access that can be reloaded?

No more than $2,000 can be associated with each closed loop prepaid access device or vehicle in one day. Accordingly, if the closed loop prepaid access arrangement permits either individual reloads of more than $2,000 per device, or cumulative reloads per device that total more than $2,000 in one day, the arrangement no longer qualifies for the “closed loop prepaid access” exception from the definition of a prepaid program under the Rule.

For example, if a closed loop prepaid access device or vehicle has a value of $1,500, and the holder spends $1,000 and subsequently reloads $600 before the end of the day, this prepaid access would fall within the definition of a prepaid program because $2,100 has been associated with the prepaid access within one day.

18. Is FinCEN developing a special SAR form for providers and sellers of prepaid access?

No, providers and sellers will use FinCEN Form 109, the same SAR form that all MSB filers use.

Thursday, October 6, 2011

U.S. FinCEN Director Expands Prepaid Access Regulations

The following remarks were made by James H. Freis, Jr., Director of Financial Crimes Enforcement Network on October 5, 2011 at the Money Transmitter Regulators Association Annual Conference.

The full transcript is published here, but I highlighted the "prepaid access" regulatory changes below:
"Let me first discuss the most recent expansion of FinCEN’s AML/CFT regulations to establish a more comprehensive regulatory approach for prepaid access. Because prepaid access is a type of money transmission, FinCEN issued a final rule in July of this year, that puts in place suspicious activity reporting (SAR), and customer and transactional information collection requirements on providers and sellers of certain types of prepaid access similar to other categories of money services businesses.

The final rule:

- Renames 'stored value' as 'prepaid access' to more aptly describe the underlying activity.

- Adopts a targeted approach to regulating sellers of prepaid access products, focusing on the sale of prepaid access products whose inherent features or high dollar amounts pose heightened money laundering risks.

- Exempts prepaid access products of $1,000 or less and payroll products if they cannot be used internationally, do not permit transfers among users, and cannot be reloaded from a non-depository source.

- Exempts closed loop prepaid access products sold in amounts of $2,000 or less.

- Excludes government funded and pre-tax flexible spending for health and dependent care funded prepaid access programs.

- Clarifies that a 'provider' of 'prepaid access' for a prepaid access program can be designated by agreement among the participants in the program or will be determined by their degree of its oversight and control over the program – including organizing, offering, and administering the program. Providers are required to register with FinCEN."
In closing, Director Freis referenced an even broader international objective focused on money service businesses located in foreign jurisdictions:
"Finally, I would like to build upon the closing point in my speech at this event last year. Now that FinCEN has established a solid regulatory framework for prepaid access in the United States, we must continue to promote analogous steps in foreign jurisdictions to mitigate risks of criminal abuse while still facilitating legitimate consumer demands. I welcome industry and governmental cooperation to that end."

For further reading:
"Regs Would Require Travelers To Declare Prepaid Cards At Border Crossings", Joe Palazzolo, WSJ Blogs, October 5, 2011
"FinCEN's New rule adaptable to 'internet system'", Bitcoin Money, October 5, 2011
"U.S. aims to track 'untraceable' prepaid cash cards", M. Alex Johnson, msnbc.com, September 1, 2011
"FinCEN Brings KYC Requirements To Bitcoin?", Bitcoin Money, August 5, 2011
"Bank Secrecy Act Regulations—Definitions and Other Regulations Relating to Prepaid Access", Federal Register, July 29, 2011

Monday, October 3, 2011

Insolvency Risk in the Network-Branded Prepaid-Card Value Chain

Philip Keitel of the Payments Cards Center at the Federal Reserve Bank of Philadelphia published "Insolvency Risk in the Network-Branded Prepaid-Card Value Chain", September 2011.

From the summary:

The value chain for network-branded prepaid cards involves more parties than those commonly present in credit- or debit-card issuing arrangements: the merchant acquirer, processors, a payment network, and a card-issuing bank. These additional participants may include a program manager, a distributor, and a seller. Since a number of independent businesses make up the chain, each one, as well as cardholding consumers, could be exposed to losses resulting from the insolvency of another party in the value chain. This risk is both real and manageable, as illustrated by two recent incidents involving network-branded prepaid cards: the failures of Silverton Bank, N.A.. and Springbok Services, Inc.

Thursday, September 15, 2011

U.S. Government — Tracking Cash Cards?

By Kelly Holt
The New American
Thursday, September 8, 2011

http://www.thenewamerican.com/usnews/crime/8903-us-government-tracking-cash-cards

The U.S. government has found another way to invade privacy in the name of fighting terrorism by proposing legislation that would track prepaid debit cards. As usual, the real losers would be, not terrorists who won’t comply anyway, but innocent Americans, or travelers, and card issuers burdened with yet another layer of record keeping and compliance procedures. The Financial Crimes Enforcement Network (FinCEN), a branch of the Treasury Department, has drafted rules, taking effect Sep. 27, to establish a “more comprehensive regulatory approach for prepaid access.”

It’s important to distinguish between these prepaid debit cards and the debit cards attached to your bank account. Once known as “stored-value cards” the cards will be renamed “prepaid access cards” — because they aren’t tied to a bank account, the money paid for them in advance could be anywhere, currently outside the reach of monitoring by the government. Which is precisely the point. An assessment of financial security threats in 2005 by the Treasury Department noted that the 9/11 hijackers opened bank accounts, signed signature cards and received wire transfers, which left a financial trail. The assessment noted: “… had the 9/11 terrorists used prepaid … cards to cover their expenses, none of these financial footprints would have been available,” according to MSNBC.com last week.

FBI Director Robert Mueller even called the use of prepaid cards a shadow banking system. The Treasury Department's assessment urged action to crack down on misuse of prepaid access cards, saying it was convinced that the shuttling of criminal proceeds across the border, "whether in the form of bulk cash or stored value" (on prepaid cards), poses "a significant threat to national security."

ACI Worldwide of New York creates and manages electronic payment systems for banks and major retailers. Senior product manager Jim Schlegel said the new rules are well-intentioned, but he questioned just how big a problem money laundering through prepaid cards really is. In an interview he said:

It's "such a small percentage of the overall problem, and attempts to propose very heavy legislation and requirements around it put a drag on an otherwise growing and profitable sector."

Agencies and bank regulators claimed that there’s no way to know how much money moves undetected across U.S. borders via the use of these cards, but according to a Government Accountability Office report from October 2010, it’s estimated that criminals smuggle $18 billion to $39 billion a year in bulk cash across the southwest border.

But, according to MSNBC, criminal organizations load prepaid cards with amounts just under the $10,000 minimum that must be reported, then cards are sent across borders and/or to associates who can convert the amounts to cash — effectively a form of money laundering. The Financial Action Task Force (FATF) reported last year in an examination of the cash cards that the United States is the biggest user of prepaid cards and that by 2017 will account for 53 percent of the worldwide market.

The traditional problems of smuggling large amounts of cash are almost eliminated with the use of prepaid access card.

Jasbir Anand, a senior consultant at ACI, said the funds represented on such cards, which you can easily buy online, could:

travel across borders without limitation. The net impact of these rules would be an increase in the overall cost of debit cards for consumers for record-keeping and storage and so on that will eventually trickle down to fees on the debit card and a limitation on features.

MSNBC continued, “Even as it warns about the potential money laundering threat, the [FATF] also acknowledges that tight restrictions on prepaid cards could have a significant impact on lower-income people unable to ‘take full advantage of mainstream financial service providers’ because they have a poor credit record, for example, or because they have no permanent address and can't qualify for a bank account. That's more than 17 million Americans, the Federal Deposit Insurance Corp. says, and for them, prepaid cards can be the only way they can gain "ready access to services."

The new rules could cause another problem. Overseas companies and banks that wish to continue doing business here might comply, but U.S. rules can’t be imposed on the thousands of merchants in other countries.

And what about traveling with large amounts of cash? Three Senators — Amy Klobuchar (D-Minn.), Tom Udall (D-N.M.), and Jeanne Shaheen (D-N.H.) — introduced legislation last month to close that loophole. It would require travelers to declare "prepaid cards totaling more than $10,000" when they enter or leave the United States, just like cash. But then entities issuing prepaid cards are placed at a competitive disadvantage to traditional or other standard bank cards if travelers find the prepaid cards less attractive. And trying to determine a card’s balance while in flight, or at a gate is burdensome.

FinCEN is developing regulations, as required by the Credit CARD Act of 2009, to address gaps in regulations related to the use of stored value for criminal purposes, but much work remains. And even more vigilance on the part of Americans trying to hold on to both their privacy and their cash.

Tuesday, July 19, 2011

Bitcoin Exchanges Popping Up Like Daisies

By Stephen Gornick
Bitcoin Money
Monday, July 18, 2011

http://www.bitcoinmoney.com/post/7757843969/bitcoin-exchanges-like-daisies

The variety of currencies and exchanges where bitcoin is traded has been expanding, rapidly.

Canadian Dollar (CAD)

In July we’ve seen the first market exchange for Canadians with the VirtEx launch. In a few weeks over $100K CAD has traded on their BTC/CAD exchange, placing them well within the top ten of Bitcoin exchanges, by volume. Also newly opened for trading CAD is Canadian Bticoins, a fixed-rate exchange.

U.S. Dollar (USD)

Among BTC/USD exchanges, Camp BX is the newest and among the most ambitious. Camp BX is operated by BulBul Investments, LLC — a corporate entity registered with the State of Georgia. The exchange is among Bitcoin’s first to have market orders — orders that will fill regardless of the price, as well as the more common limit order. Though not enabled just yet, the exchange also plans to offer the ability to buy on margn and to short-sell bitcoins. Dwolla is the only USD funding method offered by this exchange.

Another fairly new BTC/USD exchange is ExchangeBitcoins.com. Exchange Bitcoins is a corporate entity registered with the State of California and has been trading for about a month. This exchange is the only exchange where USD deposits may be made by paper check. Dwolla is accepted for deposit as well. This exchange is also the first to offer withdrawals by check and they also offer direct deposit (ACH) for USD withdrawal as well. Volume at this exchange has been increasing and their BTC/USD exchange now places in the top 10 bitcoin markets, when ranked by volume.

TradeHill recently added the ability to withdraw USD funds as direct deposit (ACH) and they allow domestic and international wire transfer withdrawal as well. This organization’s BTC/USD exchange is now the second largest, by volume.

A novel funding method is offered by a new fixed-rate U.S.-based exchange, GetBitcoin. Among the funding methods offered by this exchange is the ability to buy bitcoins after mailing to them a prepaid debit card purchased from most any convenience store or supermarket.

Just last week Intersango from the Bitcoin Consultancy — a group that also operates Britcoin, opened its BTC/USD market. Funds may be added or withdrawn using Dwolla. Britcoin and Intersango’s two exchanges all use the same open source market exchange software built by the Bitcoin Consultancy.

E.U. region (EUR)

Nearly all the exchanges with EUR funding methods have undergone banking changes in recent days. Mt. Gox is currently running without a bank where EUR funds may be deposited though the exchange says that should be rectified by Tuesday July 19th.

A new EUR exchange launched this month as well — Intersango EUR exchange. EUR funds may be added or withdrawn as SEPA bank transfers. This is one of three exchanges that use the same open source market exchange software built by the Bitcoin Consultancy.

Another fairly new exchange, Bitcoin7, now accepts SEPA transfers of EUR funds as well. Bitcoin7 out of Bulgaria has been trading since mid-June and their BTC/EUR market is one of five currency markets they serve.

The U.S.-based exchange Camp BX indicates that they will be announcing a EUR funding method in August.

While BitMarket.eu itself doesn’t escrow EUR funds, it does operate a BTC/EUR market where EUR orders between buyers and sellers are matched.

British Pound Sterling (GBP)

Mt. Gox recently started accepting GBP deposits using its U.K. banking partner. GBP funds received are converted to USD for trading on Mt. Gox’s BTC/USD market. There are no GBP withdrawal methods yet with this exchange.

Britcoin’s BTC/GBP market remains among the top five bitcoin markets when ranked by trading volume This exchange is operated by the Bitcoin Consultancy which also operates the Intersango EUR and USD exchanges. All three run the same open source market exchange software.

Bitmarket.eu does compete with their BTC/GBP market as it attracts many users who wish to buy using PayPal.

Polish Zloty (PLN)

Bitomat’s BTC/PLN market continues to be the most active of all non-USD bitcoin markets, even with the BTC/PLN competition from Bitcoin7 and Bitmarket.eu.

Bulgarian Lev (BGN)

Bitcoin7’s home is in Bulgaria and they run the only BTC/BGN market. Though trading volumes are thin yet, the market does function.

Czech Republic Koruna (CZK)

Just days ago was launched Bitcoiny.cz, a BTC/CZK market.

Australian Dollar (AUD)

TradeHill’s BTC/AUD market is just days old but is the only AUD market thus far. They offer domestic AUD deposits and withdrawals through an AU banking partner.

AUD transfers may be sent to Mt. Gox but those funds are converted to USD for trading on the BTC/USD market. Mt. Gox recently started allowing AUD withdrawals through Technocash.

BitPiggy is a fixed-rate BTC/AUD exchange with the ability to send and receive AUD funds using the banking network.

Chinese Renminbi (CNY)

Bit currency China has been trading just about a month now and daily trading volume is increasing causing this exchange to be the fastest growing of all bitcoin exchanges. Another BTC/CNY exchange has emerged, doTen.co, in which bitcoins are bought and sold with AliPay — a Chinese payment network similar to PayPal.

Indian Rupee (INR)

TradeHill stands alone as the only exchange with a BTC/INR market and also the only exchange to offer a funding method for use by those who bank in India. With significant restrictions imposed on PayPal, bitcoin may start getting more attention in this country.

Saudi Riyal (SAR)

Bitcoin7 is the only exchange to operate a BTC/SAR market and at this time the exchange does not yet accept deposits of SAR funds. SAR withdrawals are available. It is not certain where SAR funds for placing bids originate then but there are bids and the trading spread is narrow.

Chilean Peso (CLP)

Trading volumes on TradeHill’s BTC/CLP market are low but it is a functioning market with a respectably narrow trading spread.

Second Life Lindens (SLL)

Trading on the BTC/SLL market operated by VirWoX remains strong thanks to it being one of the few methods available to PayPal users. It ranks in the top 10 bitcoin markets, by volume.

Liberty Reserve USD (LRUSD)

Many Bitcoin exchanges trade Liberty Reserve USD, which continues to be a widely used digital currency that is available through currency exchanges in many places around the world. The BTC/LRUSD markets that exist include TradeHill, Btcex (Russian), Bitcoin Central, and Bitcoin Market.

Mt. Gox will accept LRUSD for deposits and will allow LRUSD to be withdrawn so it might be considered a BTC/LRUSD exchange as well except LRUSD withdrawals from Mt. Gox experience significant delays.

Bitcoin Central remains the only BTC/LREUR market though Bitcoin7 accepts LREUR funds as being the equivalent to EUR funds deposited from a bank.

Brazilian Real (BRL)

A new exchange is set to launch this week. The launch countdown clock for Brazilian exchange Mercado Bitcoin shows a Wednesday launch.

Bitcoin Argentina also will trade bitcoins for BRL.

WebMoney (WMZ)

Another new exchange, BTC-E.com, was announced on the Russian forum on Bitcoin.org. BTC-E.com accepts deposits of WebMoney and funds sent through INTERKASSA. BTC-E is currently in testing before launch.

Rest of world (ROW)

There still are significant currency markets that have no bitcoin exchanges in operation yet. For instance, those wishing to add funds from Japan (JPY), Switzerland (CHF), New Zealand (NZD) or Hong Kong (HKD) have no exchanges specifically for these currencies but that doesn’t mean they are shut out. Trade in and out of bitcoin can occur through GoldMoney as that payment system accepts for deposit or withdrawal all of those currencies and others as well. Trade then between GoldMoney and bitcoins can occur over-the-counter as many bitcoin traders will exchange bitcoins for GoldMoney.

CurrencyFair is a P2P Forex service that is assisting Bitcoiners when trading other currencies as well.

With Bitcoin existing as an open technology and nothing more, there is no approval process required before it can be used for trading among other currencies or any restrictions that specify for what purposes it can be used. There is no issuer and there is no regulator. There is only a protocol, software and network connectivity.

As a result, these currency additions from these new exchanges add towards increasing the network effect propelling Bitcoin. They help to make bitcoin even more useful everywhere.

Because domestic bank transactions clear faster than international transfers, Bitcoin essentially minimizes the delays. With bitcoin, a slow cross-border payment can instead become two relatively quick domestic bank transfers.

The finality of Bitcoin payments (non-reversible and irrevocable), plus the speedy service (bitcoin funds are available for spending in about an hour) combined with the ultra low fees (pennies per transfer, no matter the amount) all help to explain why these exchanges were so badly needed. They also help to explain why we should expect to see so many more.

[Update]:

Oh look, another daisy! Ruxum, out of Hong Kong, was featured on TechCrunch. Their site, currently invite only, shows their intention to accept USD, EUR, GBP, and JPY funds via bank wire. Assuming the site is complete, it appears that the only bitcoin market traded will be BTC/USD.

Reprinted with permission.

Friday, April 29, 2011

Virtual Currency: The Legal Issues Are A Reality

By Theodore J. Kobus, III and Nicolai A. Schurko
Mondaq
Thursday, April 28, 2011

http://www.mondaq.com/unitedstates/article.asp?articleid=130736

More and more businesses are making virtual currency part of their business model. While the use of virtual currency provides great opportunities, businesses need to be aware of the emerging legal issues before using it as a means to build customer loyalty.

What is virtual currency and why is it used?
Put simply, "virtual currency" is any medium of exchange, other than real currency, used to facilitate online or other electronic transactions. Numerous companies are currently using forms of virtual currency. For example, Apple provides iTunes users the option of buying prepaid iTunes gift cards, which contain credits that can be redeemed for music and movies. Many online games allow players to earn and purchase "points", "tokens", etc. that can be redeemed for virtual and real-world prizes. Facebook recently started a system of "credits" that has a wide variety of applications apart from gaming, such as making charitable donations using a particular charity's Facebook page. Looking into the future, Google has announced that it acquired the start-up company Jambool and its proprietary "Social Gold" virtual currency platform. There is industry speculation that Social Gold will be used to supplement Google's current online payment system, Google Checkout.

The bottom line is the use of virtual currency in e-commerce is on the rise. This trend is due in significant part to the advantages that virtual currency affords to a vendor. Virtual currency platforms allow issuing companies to lower costs by eliminating the need for a third-party company, such as a bank or PayPal, to process each payment transaction. Further, a vendor has significant control over the value of, and authorized uses for, virtual currency. This control enables companies to realize higher revenues, cut costs, and build more-attractive customer loyalty programs.

While virtual currency offers these potential benefits, there are a host of legal issues to consider.

What are the laws and legal issues affecting virtual currency?

Gift card laws:
Both federal and state gift card laws may apply to the electronic value of stored virtual currency. For instance, the federal Credit Card Accountability Responsibility and Disclosure Act of 2009 (CCARDA) contains provisions which prohibit retailers from setting expiration dates less than 5 years after a gift card is purchased. The CCARDA also prohibits retailers from changing dormancy, inactivity, and service fees unless a gift card has not been used for at least 12 months. If fees are charged after this period, the details of such fees must be clearly described on the card, and retailers cannot assess more than one fee per month under any circumstances.

State gift card laws may provide for even stricter requirements and are not preempted by the CCARDA. Thus, state law may further-limit a retailer's ability to penalize a customer for not regularly using a virtual currency account. That said, some state gift card laws provide exemptions for gift certificates or loyalty points that were provided to a customer on a promotional basis without consideration, and these may also apply to virtual currency.

Unclaimed property laws:
Unclaimed property laws may be triggered when virtual currency is earned or purchased but not used by the owner, i.e. "breakage". A typical state law provides that where property has been abandoned or unused for a specified period of time (usually 3-5 years), the property holder must turn over the value of such property to the state of the owner or to the state of domicile of the holder. Failure to comply with this type of law can result in interest and penalties which may exceed the initial amount to be reported.

In the context of virtual currency, unclaimed property laws may force a company to turn over a customer's stored virtual currency if that customer's account has been left with an unused balance for an extended period of time. Such laws may even require the officers of the company that issues virtual currency to attest to the company's compliance with unclaimed property protocol.

Gambling/Sweepstakes laws:
In some cases, companies will offer virtual currency units as a prize in a sweepstakes-type contest or will allow customers to use virtual currency as a wagering device in online games. When considering these applications, it is important to remember that federal law criminalizes most forms of online "gambling", a term which is broadly defined. Many states also regulate gambling, sweepstakes, and contests.

Currency transmittal licensure laws:
Federal and state laws generally require licensure, and sometimes special registration, for an individual or entity to engage in an activity that involves the acceptance and/or transfer of funds to a third party. These laws usually do not have a requirement that actual currency is being transferred and, thus, transfers of virtual currency could be covered. In particular, virtual currency models which allow value to be transferred to third parties, such as redemption of Facebook credits for a participating business partner's products or services, could require currency transmittal licensure. Failure to obtain a required license could result in civil and/or criminal penalties.


Ted Kobus is the Chair of Marshall, Dennehey, Warner, Coleman & Goggin's Technology, Media, and Intellectual Property Practice Group. Nick Schurko is an associate in Ted's group.

For further reading:
"Could virtual currency become king in developing countries?", Brendan Burge, April 14, 2011
"Virtual pigs and chooks see payday for crooks", The Sydney Morning Herald, March 29, 2011
"EVE Online: Its Economist on the Power Virtual Economies", Damon Brown, March 28, 2011
"Virtual Currencies: Real Legal Issues for Interactive Entertainment Companies", J. Dax Hansen, Kirk Soderquist, and Scott Edwards, April 8, 2010

Saturday, April 16, 2011

Loosely Managed Digital Currency Could Be Avenue for Crime That's Hard to Block

By Colby Adams
MoneyLaundering.com
Friday, April 15, 2011

http://www.bitcoin.org/smf/index.php?topic=5907.0

An emerging virtual currency intended to be used in lieu of cash could also be a vehicle for criminals seeking to make international transactions anonymously, according to investigators.

Bitcoin, a loosely organized electronic payment system created in January 2009 by an otherwise anonymous computer programmer known by the possible pseudonym of Satoshi Nakamoto, allows users and merchants to make transactions through digital coins, with or without the aid of payment processors or other financial institutions.

While the project remains relatively small, it has already drawn enthusiastic users, including international vendors and nonprofit organizations like the Electronic Frontier Foundation, which accept charitable donations of the currency. Google developers have received the green light to research the coins, which are valued at a total of $5 million, according to estimates by www.mtgox.com.

The currency was "no doubt developed for altruistic purposes by conscientious people, and there are perfectly legitimate, legal and philosophical reasons for wanting the financial anonymity that [Bitcoin] gives, but the other reality is, if this type of currency takes off, it will be a dream for the bad guys," said Steve Santorelli, director of global outreach at Team Cymru, a Burr Ridge, IL-based Internet security firm.

By using multiple e-mail addresses and anonymous proxies to disguise their locations, criminals can open a new Bitcoin account for each transaction and ensure that their money movements are "virtually bombproof and untraceable to an investigator," said Santorelli, a former Scotland Yard cybercrime detective and a former senior manager of investigations with Microsoft's Internet Crimes Investigation Team.

Because Bitcoin users can disguise their locations while potentially transacting large sums of currency with the aid of offshore merchants and payment processors, "domestic court orders and subpoenas to pierce the transactions [are rendered] obsolete," he said.

"The decentralized, international system means that, unlike a financial institution, there is no one to serve a court order on," said Santorelli. "If this system takes off it will be virtually impossible to police it, requiring a fundamental rethink in the investigative approach."

Money from nothing

At first blush, the origin and value behind bitcoins will likely seem strange to some. Few, if anyone, has met Nakamoto, organization principal Gavin Andresen said, during a March 15 interview with EconTalk. Control of the organization is decentralized and based on the premise that all users can have a say in monetary decisions.

"The root problem with conventional currency is all the trust that's required to make it work," Nakamoto wrote in a February 2009 blog on P2P Foundation. "The central bank must be trusted not to debase the currency, but the history of fiat currencies is full of breaches of that trust."

How bitcoins work is a "step beyond any payment system I have ever seen," said Santorelli.

The currency, which is traded through software anyone can download, is not backed by precious metals or other commodities but relies on the fact that it is accepted by a group of consumers and merchants whose transactions are vetted by one another on a volunteer basis.

To obtain bitcoins, users can buy existing coins from a participating company—the currency has traded both above and below the value of a U.S. dollar—or try to win a batch of 50 newly-minted bitcoins by first solving a cryptographic puzzle with proof that other users can evaluate. The puzzles are generated by an algorithm designed to make the challenges solvable at a rate of once per 10 minutes, thus establishing a steady rate of coin “creation.”

Among other methods, the coins can be redeemed for prepaid Visa cards, PayPal credit, cash shipped via mail, digital currency used in the online site Second Life and precious metals and coins, including in pounds of pennies, according to https://en.bitcoin.it/wiki/Trade , which is hyperlinked from the organization's Web site.

The coins can also be traded between users or spent with the approximately 100 vendors currently accepting the digital money, including electronics dealers, clothing retailers and online bookstores. Among those accepting the currency are a handful of merchants purporting to sell psychoactive drugs, including heroin and LSD, and over a dozen online gambling Web sites, according to the Wiki page.

A statement on Bitcoin's Web site contends that "sometimes you just want to send money from A to B without worrying about limits and policies."

Like cash?

Checks against misuse are already built into the system, which operates as a "pretty loosely organized open source project," said Andresen, in his interview with EconTalk.

Because the software is open-source and money movements are made via a public platform that anyone can scrutinize, users have the ability, and the incentive, to check whether their peers have engaged in suspicious activity, or have tried to game the system, he said during the interview. Currently, between 5,000 and 10,000 individuals participate in the project, Andresen told EconTalk.

"Like cash, Bitcoin can be used for good, and it can be used for evil," according to Jeff Garzik, a Bitcoin developer and creator of www.BitcoinWatch.com, a Web site that follows Bitcoin's financial trends. Since transactions are public, and thus traceable, the currency is "slightly less anonymous" than cash, he said.

"In practice, this provides anonymity for the average transaction, but a government with subpoena power and the ability to perform statistical analysis may be able to track illicit bitcoin activity with a higher success rate than with hard cash U.S. dollar transactions," said Garzik.

"Every bitcoin transaction ever made is public, and the life of every bitcoin is fully recorded in public for all to see," said Garzik, referring to http://www.blockexplorer.com , a Web site that tracks each transaction by unique number. Yet penetrating beyond the number to the initiator of the transaction "would be the difficult part" of an investigation, he said.

Still, court orders may be served to bitcoin exchanges, users and other operators, ordering them to "ban" specific bitcoins if needed, he said.

Nothing stopping them

Even in instances when wrongdoing is discovered, the organization's decentralized nature would make it "extremely difficult for the government to regulate, and may require them to prosecute only individuals, rather than the system as a whole," according to Tom Kellerman, vice president of security awareness and government affairs for Core Security Technologies, a Boston-based data security firm.

Although both cash and bitcoins offer a degree of anonymity, they differ in one key aspect: how quickly they can be transported, said Kellerman. Like remittances, bitcoins can be sent across borders rapidly and with little chance of retrieval, he said.

"The speed difference is roughly that of e-mail versus conventional mail," he said.

"It avoids every reporting requirement out there, which is scary, and it's open source software, meaning someone could start their own currency, which is also scary," said Arnie Scher, Director at the New York office of BDO consulting and a former compliance manager at JP Morgan Chase.

"There's nothing preventing drug dealers from starting their own bitcoin currency - nothing," he said.

Already regulated?

In response to a request for determination for Bitcoin USA, an independent digital currency exchange company affiliated with the project, the U.S. Treasury Department referred the business to a January 2009 Financial Crimes Enforcement Network (FinCEN) ruling defining digital currencies as prepaid value providers.

Bitcoin USA eventually closed, in part, because "identification requirements stopped people from completing the registration completely," according to an April 9 post on Bitcoin's main public forum. "I had a total of three people upload their documents out of all the registered people," according to the post, which cited FinCEN's ruling.

Other bitcoin exchanges have been following the FinCEN ruling "in an ad hoc manner, in an attempt to proactively comply with AML regulations," said Garzik.

Under U.S. regulations, digital currency companies are prohibited from selling or redeeming more than $1,000 per person per day without registering as a money services business (MSB) with FinCEN, and filing suspicious activity and currency transaction reports.

Registering with FinCEN would bring Bitcoin-affiliated businesses under the Bank Secrecy Act examination authority of the Internal Revenue Service, which oversees 200,000 MSBs, according to a February 2009 report from the U.S. Government Accountability Office that also noted numerous logistical hurdles the agency faced in overseeing the companies.

But even if bitcoin exchanges with high-value transactions register with FinCEN, the IRS' monitoring of Bitcoin's vendors would be "unworkable" in part because of confusion over "which part of the system to regulate" and because the IRS is already stretched thin with its current roster of MSBs, said Scher.

Spokespersons for the IRS and FinCEN declined to comment on the organization. Nakamoto and Andresen did not respond to e-mails seeking comment by press time.

Room to grow

Currently, most bitcoin users keep their transactions below the $1,000 threshold because they would prefer to avoid reporting requirements, said Garzik. "Once Bitcoin grows larger, and can profitably support MSB-registered exchanges, those will flourish," he said.

The fact that the digital currency remains relatively small is also a sign that whatever potential problems Bitcoin may face, it's still too early to worry about large-scale money laundering, said Scott Dueweke, a senior associate at Booz Allen Hamilton who studies alternative payment systems.

"When you're talking about laundering drug profits, you're talking about millions - even billions - of dollars, and that's too big of a fish for a model like Bitcoin to fry at this point," said Dueweke. A laundering scheme involving Bitcoin would still need a "complicit or willfully ignorant financial institution to move anything in useful amounts," he said.

Other digital currency businesses have met with skepticism from federal regulators.

In July 2008, the three principal directors of E-Gold, a digital currency backed by gold, pled guilty to money laundering and charges of running an unlicensed money transmitting business. The Treasury Department fined the business nearly $3 million in October 2009 for helping others evade Iran and Cuba economic sanctions.

In February 2006, New York indicted three Western Express International executives for exchanging up to $25 million in international criminal proceeds for digital currencies, including digital gold acquired from the purchase of goods with stolen credit card numbers.

"We are concerned that mechanisms such as the Internet increasingly can be used to conduct business within the United States from a foreign jurisdiction," wrote FinCEN, in a May 2009 ruling. "Use of such mechanisms may avoid both our regulations and the regulations of the foreign jurisdiction," the ruling said.

Monday, February 8, 2010

Russian Banks on the Offensive to Stop E-Money Issuers

By Daniel Gusev
Retail Banking in Russia: Innovation Unfolded
Monday, February 8, 2010

http://valuedrivenbanking.blogspot.com/2010/02/banks-are-on-offensive-to-stop-emoney.html


The bill on national payments system was leaked to the press - where it became clear that banks want to take away the emoney issuance function away from emoney operators. What gives?

Emoney was and is pretty much the single factor developing ecommerce and motivating "web entrepreneurship" between uninstitutionalized agents. Cost effective clearing mechanism enabled new "grey merchants" to launch into business and promoted trade - since most emoney schemes, i.e. Yandex Money, in Russia are part of search engines. Emoney was a tool of content monetization. From here, how strong can the anti-emoney movement be?

According to the bill - only credit money institutions can be held liable against money issued - so emoney issuance should be their exclusive prerogative. The institution may then establish relationship with a payment agent who will on his part be able to offer operational and clearing services to the end users. In fact - the whole emoney will likely be rendered into prepaid schemes - where liabilities would be issued by banks and emoney will become agents "connecting the dots". Ability to pay without KYC principles will be kept for sums lower than RUB 15 000.

It's hard to say, whether the whole idea will work - it may kill illegitimate and illiquid emoney schemes and promote the use of major virtual currencies - since the operators would still be in control of the dots - no matter they will act more like agents than issuers. The bill still proves a major conclusion: banks see a big business in emoney.

Daniel Gusev is the publisher of Retail Banking in Russia: Innovation Unfolded. Reprinted with permission.

For further reading:
"Emoney in Russia - the Dark Side of the Moon for (most) banks", Retail Banking in Russia: Innovation Unfolded, January 18, 2010
"Emoney iPhone apps win over banking - but are not on the top 100 list", Retail Banking in Russia: Innovation Unfolded, December 27, 2009
"Banks are scared of emoney - because they will end up with loosing contact with customers", Retail Banking in Russia: Innovation Unfolded, December 24, 2009
"Non Bank Payments with Webmoney Transfer (part 1)", Mark Herpel, October 16, 2009
"Non Bank Payments: America vs. Russia (part 2)", Mark Herpel, October 16, 2009
"Non Bank Payments: Pay Pal or WebMoney (part 3)", Mark Herpel, October 19, 2009
"Webmoney Russian Non Bank Products & Services (part 4)", Mark Herpel, October 19, 2009
"Non Bank Payments: Webmoney & Plastic Cards (part 5)", Mark Herpel, October 19, 2009
"The Webmoney Purse, One Size Does Not Fit All (part 6)", Mark Herpel, October 19, 2009