A piece of legislation, Senate Bill 1241 (the “Combating Money Laundering, Terrorist Financing, and Counterfeiting Act of 2017”), introduced on May 25, 2017, by Senators Dianne Feinstein, John Cornyn, and Sheldon Whitehouse, would add provisions for regulation of digital currency relating to civil forfeiture. Specifically, the bill would add the terms “digital currency” and “or any digital exchanger or tumbler of digital currency” to definitions listed in 31 U.S.C. § 5312, broadening the definitions of these terms to encompass actionable penalization of those who fail to disclose financial holdings. The bill is described as a measure “to improve the prohibitions on money laundering, and for other purposes.”
With these proposed amendments, institutions with government ties can now be compelled to participate as agents of the Department of Homeland Security (DHS), aiding in investigations. The bill explicitly brings cryptocurrencies under the umbrella of civil forfeiture. It also requires the DHS to provide, within 18 months of ratification, a report on strategies to detect cryptocurrencies at border crossings, which might be difficult since there is no current technology that provides a direct solution for this.
Further, the Bill expands a previously existing law, 31 U.S.C. § 5316, which requires reports on the export and import of monetary instruments, to apply to digital currency. The amended law would require those traveling with greater than $10,000 in assets to file a report indicating the total sum. Failure to comply can mean the civil forfeiture of all the individual’s assets, irrespective of whether the $10,000 in assets are contained therein, and the possibility of up to 10 years in prison.
However, questions arise as to how a government entity would be able to extract assets from digital wallets, which are often backed by encrypted codes inaccessible to third parties. While the possibility of regulators invoking a forfeiture of assets is a reality for those who fail to comply with the new legislation, it remains unclear as to how encrypted digital wallets will be accessed without the compliance of targeted individuals.
How enforcement officials intend to obtain these codes from individuals who resist compliance remains a mystery.