Financial regulators have for years attempted to apply existing laws to the multitude of issues created by digital assets. In 2021, leading federal regulators and members of Congress have begun to call for legislation to address these issues. As a result, 2022 may be the year when federal legislation finally addresses digital asset issues that have been growing since the mining of the first Bitcoin block in 2009.

Digital Asset Regulation in the Absence of Legislation

So far, Congress has left the task of addressing issues created by digital assets to regulatory agencies. Although a Congressional Blockchain Caucus formed in 2016, House and Senate members introduced few bills addressing digital assets until 2018. As of October 2021, Congress has not amended federal laws on financial regulation, which were last significantly revised by the Dodd-Frank Act in 2010, to address digital asset issues.

In the absence of legislation, issues that do not fit well into existing statutes have created problems. An example is the legal status of digital assets, which can be considered to be either securities or commodities, and can even shift from one to the other over time. Years after the SEC’s 2017 report applying the definition of a security to digital tokens, the SEC and the CFTC have yet to clarify the distinction between securities and commodities for the thousands of digital assets in existence.

SEC Chair Gary Gensler has called for Congress to act, stating in August, “We need additional Congressional authorities to prevent transactions, products, and platforms from falling between regulatory cracks.” Gensler has reached out to Sen. Elizabeth Warren (D-Ma.), who has expressed her own concerns about the need for legislation.

Legislation on Digital Assets in 2021

While regulators and members of Congress talked about the need for legislation, and the debate over cryptocurrency tax reporting in the 2021 infrastructure bill generated headlines, House and Senate bills proposing specific solutions to various issues quietly started to emerge.

Digital Token Sales

Several House bills attempt to address securities law barriers to digital token sales—some of them by building on ideas proposed by regulators in past years.

Exclusion from the definition of a security. Congressional Blockchain Caucus members have been introducing bills to exclude digital tokens from the definition of a security since 2018, and they have revived those bills in 2021. They include the Token Taxonomy Act of 2021 (H.R. 1628), successor to identically named bills in 2018 and 2019, and the Securities Clarity Act (H.R. 4451), successor to a 2020 namesake.

Safe harbor. SEC Commissioner Hester Peirce proposed a regulatory safe harbor for token sales in 2020, and two 2021 bills have proposed statutory safe harbors. Rep. Patrick McHenry (R-N.C.), Republican leader of the House Financial Services Committee, introduced a Clarity for Digital Tokens Act of 2021 (H.R. 5496) that would amend the Securities Act to create a safe harbor providing a grace period of exemption from Securities Act registration requirements. The Digital Asset Market Structure and Investor Protection Act (H.R. 4741) from Rep. Don Beyer (D-Va.) would amend the Securities Exchange Act to define a new type of security—a “digital asset security”—and add issuers of digital asset securities to an existing provision for delayed registration of securities.

Stablecoins

Stablecoins—digital currencies linked to the value of the U.S. dollar or other fiat currencies—have not yet been the subject of regulatory action, although Treasury Secretary Janet Yellen and Federal Reserve Chair Jerome Powell have each underscored the need to create a regulatory framework for them. The Beyer bill proposes to create a regulatory regime for stablecoins by amending Title 31 of the U.S. Code. Treasury Department approval would be required for any “digital asset fiat-based stablecoin” to be issued or used, under an application process to be established by Treasury in consultation with the Federal Reserve, the SEC, and the CFTC.

Serious consideration for any of these proposals in the current session of Congress may be unlikely. A spate of autumn bills on crypto ransom payments (S. 2666, S. 2923, S. 2926, H.R. 5501) shows that Congress is more inclined to pay attention first to issues that are more spectacular and less arcane. Moreover, the arcaneness of digital asset regulatory issues is likely only to increase further, now that major industry players such as Coinbase and Andreessen Horowitz are starting to roll out their own regulatory proposals.

Digital Dollar vs. Digital Yuan

Impetus to pass legislation on another type of digital asset, a central bank digital currency (CBDC), may come from a different source: rivalry with China.
China established itself as a world leader in developing a CBDC with a pilot project launched in 2020, and in 2021, the People’s Bank of China announced that its CBDC will be used at the Beijing Winter Olympics in February 2022. Republican Senators responded by calling for the U.S. Olympic Committee to forbid use of China’s CBDC by U.S. athletes in Beijing and introducing a bill (S. 2543) to require a study of its national security implications.

The Beijing Olympics could motivate a legislative mandate to accelerate implementation of a U.S. digital dollar, which the Federal Reserve has been in the process of considering in 2021. Antecedents to such legislation already exist. A House bill sponsored by 46 Republicans (H.R. 4792) has a provision that would require the Treasury Department to assess China’s CBDC project and report on the status of Federal Reserve work on a CBDC, and the Beyer bill includes a provision amending the Federal Reserve Act to authorize issuing a digital dollar.

Both parties are likely to support creating a digital dollar. The Covid-19 pandemic made a digital dollar for delivery of relief payments a popular idea in 2020, and House Democrats introduced bills with provisions for creating one in 2020 and 2021. Bipartisan support for a bill on a digital dollar, based on concerns both foreign and domestic in nature, could result.

International rivalry and bipartisan support may make the digital dollar a gateway issue for digital asset legislation in 2022. Legislative work on a digital dollar may open the door for considering further digital asset issues—including the regulatory issues that have been emerging for years—in 2022 and beyond.

On Saturday, Moonbird #2642, one of the collection's rarest NFTs, sold for a record 350 ETH (over $1 million) on OpenSea.

The Sandbox, a blockchain-based gaming company based in Hong Kong, bought the piece. The seller, "oscuranft" on OpenSea, made around $600,000 after buying the NFT for 100 ETH a week ago.

Owl avatars

Moonbirds is a 10,000 owl NFT collection. It is one of the quickest collections to achieve bluechip status. Proof, a media startup founded by renowned VC Kevin Rose, launched Moonbirds on April 16.

Rose is currently a partner at True Ventures, a technology-focused VC firm. He was a Google Ventures general partner and has 1.5 million Twitter followers.

Rose has an NFT podcast on Proof. It follows Proof Collective, a group of 1,000 NFT collectors and artists, including Beeple, who hold a Proof Collective NFT and receive special benefits.

These include early access to the Proof podcast and in-person events.

According to the Moonbirds website, they are "the official Proof PFP" (picture for proof).

Moonbirds NFTs sold nearly $360 million in just over a week, according to The Block Research and Dune Analytics. Its top ten sales range from $397,000 to $1 million.

In the current market, Moonbirds are worth 33.3 ETH. Each NFT is 2.5 ETH. Holders have gained over 12 times in just over a week.

Why was it so popular?

The Block Research's NFT analyst, Thomas Bialek, attributes Moonbirds' rapid rise to Rose's backing, the success of his previous Proof Collective project, and collectors' preference for proven NFT projects.

Proof Collective NFT holders have made huge gains. These NFTs were sold in a Dutch auction last December for 5 ETH each. According to OpenSea, the current floor price is 109 ETH.

According to The Block Research, citing Dune Analytics, Proof Collective NFTs have sold over $39 million to date.

Rose has bigger plans for Moonbirds. Moonbirds is introducing "nesting," a non-custodial way for holders to stake NFTs and earn rewards.

Holders of NFTs can earn different levels of status based on how long they keep their NFTs locked up.

Rose went on to say that Proof is just the start of "a multi-decade journey to build a new media company."

The interiors of the 105,000-square-foot property, which sits on a five-acre parcel in the wealthy Los Angeles suburb of Bel Air and is suitably titled The One, have been a well guarded secret. We got an intimate look inside this world-record-breaking property, as well as the creative and aesthetic geniuses behind it.

The estate appears to float above the city, surrounded on three sides by a moat and a 400-foot-long running track. Completed over eight years—and requiring 600 workers to build—the home was designed by architect Paul McClean and interior designer Kathryn Rotondi, who were enlisted by owner and developer Nile Niami to help it live up to its standard.
"This endeavor seemed both exhilarating and daunting," McClean says. However, the home's remarkable location and McClean's long-standing relationship with Niami persuaded him to "build something unique and extraordinary" rather than just take on the job.

And McClean has more than delivered.

The home's main entrance leads to a variety of meeting places with magnificent 360-degree views of the Pacific Ocean, downtown Los Angeles, and the San Gabriel Mountains, thanks to its 26-foot-high ceilings. There is water at the entrance area, as well as a sculpture and a bridge. "We often employ water in our design approach because it provides a sensory change that helps you acclimatize to your environment," McClean explains.

Niami wanted a neutral palette that would enable the environment and vistas to shine, so she used black, white, and gray throughout the house.

McClean has combined the home's inside with outside "to create that quintessential L.A. lifestyle but on a larger scale," he says, drawing influence from the local environment and history of Los Angeles modernism. "We separated the entertaining spaces from the living portions to make the house feel more livable. The former are on the lowest level, which serves as a plinth for the rest of the house and minimizes its apparent mass."

The home's statistics, in addition to its eye-catching style, are equally impressive. There are 42 bathrooms, 21 bedrooms, a 5,500-square-foot master suite, a 30-car garage gallery with two car-display turntables, a four-lane bowling alley, a spa level, a 30-seat movie theater, a "philanthropy wing (with a capacity of 200) for charity galas, a 10,000-square-foot sky deck, and five swimming pools.

Rotondi, the creator of KFR Design, collaborated with Niami on the interior design to create different spaces that flow into one another despite the house's grandeur. "I was especially driven to 'wow factor' components in the hospitality business," Rotondi says, citing top luxury hotel brands such as Aman, Bulgari, and Baccarat as sources of inspiration. Meanwhile, the home's color scheme, soft textures, and lighting are a nod to Niami and McClean's favorite Tom Ford boutique on Rodeo Drive.

The house boasts an extraordinary collection of art, including a butterfly work by Stephen Wilson on the lower level and a Niclas Castello bespoke panel in black and silver in the office, thanks to a cooperation between Creative Art Partners and Art Angels. There is also a sizable collection of bespoke furniture pieces from byShowroom.

A house of this size will never be erected again in Los Angeles, thanks to recently enacted city rules, so The One will truly be one of a kind. "For all of us, this project has been such a long and instructive trip," McClean says. "It was exciting to develop and approached with excitement, but I don't think any of us knew how much effort and time it would take to finish the project."