2. should national governments limit private currency issuance to tightly regulated institutions so that governments can incentivize or mandate certain desirable features? as i ’ ve already suggested, current u. s. law does not have direct answers to these questions. digital currencies can fall into a variety of categories : commodities or securities or other instruments. how a digital currency is classified will depend partly on the functional use of the digital currency and partly on the priorities of various lawmakers and regulatory agencies that have the authority to regulate it. the financial crimes enforcement network ( fincen ), the primary u. s. authority responsible for implementing u. s. anti - money laundering laws, was one of first authorities to issue guidance in the united states on digital currencies. fincen clarified in 2013 that transmitters and exchangers of digital currency are money service businesses under fincen regulations, if the digital currency acts as a substitute for real currency or has an equivalent value in real currency. 20 accordingly, any person that engages in the business of transferring or exchanging digital currency is subject to fincen requirements to establish an anti - money laundering program, which includes recordkeeping, reporting, and customer identification and verification requirements. 21 fincen ’ s early entrance into the field sought to address the fact that digital currencies, like other forms of payment, may be used for nefarious purposes. fast forward to 2017. jay clayton, the chairman of the securities and exchange commission ( sec ), the federal agency that regulates securities, released a statement on digital currencies and initial coin offerings ( icos ). in chairman clayton ’ s view, “ tokens and offerings that incorporate features and marketing efforts that emphasize the potential for profits based on the entrepreneurial or managerial efforts of others continue to contain the hallmarks of a security under u. s. law. ” 22 in 2018, sec staff published guidance to clarify that exchanges, investment vehicles, investment advisers, and dealers doing business in digital currencies that are digital asset securities would be subjected to securities laws. 23 the guidance makes clear that digital currencies that function as securities will be subject to u. s. securities law, but where we draw this line may not always be clear. products that blur the boundaries between money and securities are not new. take, for instance, certificates of deposit. in 1982, the united states supreme court analyzed whether a certificate of deposit was a security for purposes of certain u. s. anti - fraud laws

. we certainly must continue monitoring developments closely and adjust regulation when and where needed to ensure that financial services remain safe and sound. but competition – to refer to the austrian economist friedrich august von hayek – is a discovery procedure10, and it is up to the markets ’ verdict which product or service is the optimal solution. legislation and regulation should therefore ensure a level playing field for all market players, incumbent´s and new entrants alike. 1 see arner, d., barberis, j. and buckley, r. ( 2016 ), “ the evolution of fintech : a new post - crisis paradigm? ”, georgetown journal of international law, vol. 47, no 4, pp. 1271 – 1319. 2 overall investment across venture capital, private equity and mergers and acquisitions. see kpmg ( 2018 ), “ global fintech investment soars to record us $ 57b in first half of 2018 : kpmg pulse of fintech report ”. 3 see mersch, y. ( 2018 ), “ tips and the future of innovative retail payment solutions in europe ”, speech at the tips launch event, frascati ( rome ), 30 november. 4 see deutsche bundesbank / ehi retail institute gmbh ( 2019 ), kosten der bargeldzahlung im einzelhandel, february. 5 see claessens et al. ( 2018 ), “ fintech credit markets around the world : size, drivers and policy issues ”, bis quarterly review, september, pp. 29 – 49. 6 see carstens, a. ( 2018 ), “ big tech in finance and new challenges for public policy ”, keynote address at the ft banking summit, london, december. 7 while investors typically cannot redeem claims early, they can choose not to roll over maturing claims. 8 61 % of incumbent institutions indicated that fintechs threated to decrease their revenues in the payment and settlement domain. see european banking authority ( 2018 ), eba report on the impact of fintech on incumbent credit institutions ’ business models, july. 9 see celent ( 2018 ), global tech spending forecast : banking edition, 2018, march. 10 see f. a. hayek ’ s ( 1968 ), “ der wettbewerb als entdeckungsverfahren ”, a 1968 lecture, sponsored by the institut fur weltwirtschaft at the university of kiel. it was published as no