FinCEN’s Crypto Surveillance Rule Violates the US Constitution

FinCEN’s Crypto Surveillance Rule Violates the US Constitution


In the late afternoon on the Friday before Christmas, the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) proposed a regulation introducing data collection and reporting requirements for cryptocurrency. FinCEN gave the public only 15 days to comment, over the holidays, instead of the usual 60 days. This was a clear attempt to push through a midnight regulation without giving the public time to respond, and it backfired. Despite the short timeline, roughly 7,500 people and entities submitted comments decrying the proposal, the most FinCEN has received on any proposed rulemaking. The comments on this proposal constitute nearly 70% of all comments FinCEN has received on all rule-makings since 2008 combined.

Marta Belcher, a cryptocurrency and civil liberties attorney, is special counsel to the Electronic Frontier Foundation, general counsel to Protocol Labs and an attorney at Ropes & Gray. She is also Board Chair of the Filecoin Foundation and the Filecoin Foundation for the Decentralized Web.

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