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.

The Pacific island state recognizes decentralized autonomous organizations.

The Republic of the Marshall Islands has recognized decentralized autonomous organizations (DAOs) as legal entities, giving collectively owned and managed blockchain projects global recognition.

The Marshall Islands' amended the Non-Profit Entities Act 2021 that now recognizes DAOs, which are blockchain-based entities governed by self-organizing communities. Incorporating Admiralty LLC, the island country's first DAO, was made possible thanks to the amendement. MIDAO Directory Services Inc., a domestic organization established to assist DAOs in the Marshall Islands, assisted in the incorporation.

The new law currently allows any DAO to register and operate in the Marshall Islands.

“This is a unique moment to lead,” said Bobby Muller, former Marshall Islands chief secretary and co-founder of MIDAO. He believes DAOs will help create “more efficient and less hierarchical” organizations.

A global hub for DAOs, the Marshall Islands hopes to become a global hub for DAO registration, domicile, use cases, and mass adoption. He added:

According to the World Bank, the Marshall Islands is an independent island state in the Pacific Ocean near the Equator. To create a blockchain-based cryptocurrency that would be legal tender alongside the US dollar, the island state has been actively exploring use cases for digital assets since at least 2018.

In February 2018, the Marshall Islands approved the creation of a new cryptocurrency, Sovereign (SOV). As expected, the IMF has criticized the plan, citing concerns that a digital sovereign currency would jeopardize the state's financial stability. They have also criticized El Salvador, the first country to recognize Bitcoin (BTC) as legal tender.

Marshall Islands senator David Paul said the DAO legislation does not pose the same issues as a government-backed cryptocurrency. “A sovereign digital currency is financial and raises concerns about money laundering,” . This is more about giving DAOs legal recognition to make their case to regulators, investors, and consumers.

Six Thinking Hats was written by Dr. Edward de Bono. "Six Thinking Hats" and parallel thinking allow groups to plan thinking processes in a detailed and cohesive way, improving collaboration.

Fundamental ideas

In order to develop strategies for thinking about specific issues, the method assumes that the human brain thinks in a variety of ways that can be intentionally challenged. De Bono identifies six brain-challenging directions. In each direction, the brain brings certain issues into conscious thought (e.g. gut instinct, pessimistic judgement, neutral facts). Some may find wearing hats unnatural, uncomfortable, or counterproductive.

The example of "mismatch" sensitivity is compelling. In the natural world, something out of the ordinary may be dangerous. This mode causes negative judgment and critical thinking.

Colored hats represent each direction. Putting on a colored hat symbolizes changing direction, either literally or metaphorically. De Bono first used this metaphor in his 1971 book "Lateral Thinking for Management" to describe a brainstorming framework. These metaphors allow more complete and elaborate thought separation. Six thinking hats indicate ideas' problems and solutions.

Similarly, his CoRT Thinking Programme introduced "The Five Stages of Thinking" method in 1973.

HAT	OVERVIEW	TECHNIQUE
BLUE	"The Big Picture" & Managing	CAF (Consider All Factors); FIP (First Important Priorities)
WHITE	"Facts & Information"	Information
RED	"Feelings & Emotions"	Emotions and Ego
BLACK	"Negative"	PMI (Plus, Minus, Interesting); Evaluation
YELLOW	"Positive"	PMI
GREEN	"New Ideas"	Concept Challenge; Yes, No, Po

Strategies and programs

After identifying the six thinking modes, programs can be created. These are groups of hats that encompass and structure the thinking process. Several of these are included in the materials for franchised six hats training, but they must often be adapted. Programs are often "emergent," meaning the group plans the first few hats and the facilitator decides what to do next.

The group agrees on how to think, then thinks, then evaluates the results and decides what to do next. Individuals or groups can use sequences (and indeed hats). Each hat is typically used for 2 minutes at a time, although an extended white hat session is common at the start of a process to get everyone on the same page. The red hat is recommended to be used for a very short period to get a visceral gut reaction – about 30 seconds, and in practice often takes the form of dot-voting.

ACTIVITY	HAT SEQUENCE
Initial Ideas	Blue, White, Green, Blue
Choosing between alternatives	Blue, White, (Green), Yellow, Black, Red, Blue
Identifying Solutions	Blue, White, Black, Green, Blue
Quick Feedback	Blue, Black, Green, Blue
Strategic Planning	Blue, Yellow, Black, White, Blue, Green, Blue
Process Improvement	Blue, White, White (Other People's Views), Yellow, Black, Green, Red, Blue
Solving Problems	Blue, White, Green, Red, Yellow, Black, Green, Blue
Performance Review	Blue, Red, White, Yellow, Black, Green, Blue

Use

Speedo's swimsuit designers reportedly used the six thinking hats. "They used the "Six Thinking Hats" method to brainstorm, with a green hat for creative ideas and a black one for feasibility.

Typically, a project begins with extensive white hat research. Each hat is used for a few minutes at a time, except the red hat, which is limited to 30 seconds to ensure an instinctive gut reaction, not judgement. According to Malcolm Gladwell's "blink" theory, this pace improves thinking.

De Bono believed that the key to a successful Six Thinking Hats session was focusing the discussion on a particular approach. A meeting may be called to review and solve a problem. The Six Thinking Hats method can be used in sequence to explore the problem, develop a set of solutions, and choose a solution through critical examination.

Everyone may don the Blue hat to discuss the meeting's goals and objectives. The discussion may then shift to Red hat thinking to gather opinions and reactions. This phase may also be used to determine who will be affected by the problem and/or solutions. The discussion may then shift to the (Yellow then) Green hat to generate solutions and ideas. The discussion may move from White hat thinking to Black hat thinking to develop solution set criticisms.

Because everyone is focused on one approach at a time, the group is more collaborative than if one person is reacting emotionally (Red hat), another is trying to be objective (White hat), and another is critical of the points which emerge from the discussion (Black hat). The hats help people approach problems from different angles and highlight problem-solving flaws.