The first thing that should be said about Facebook’s Libra proposal is it is thoughtful. In an industry characterized by initial coin offerings (ICO) seeking to raise funds for flimsy concepts on the basis of grossly inadequate disclosure, this is quite welcome. Whether you are enthusiastic or skeptical about the idea, at least Facebook has taken the time to think through a number of complex issues.
The white paper nevertheless raises many regulatory concerns, as well as fundamental questions about its utility and value, which are amplified by concerns about Facebook’s power and past record on privacy and security issues. The speed and intensity of the congressional reaction—with hearings scheduled for this week—illustrates that.
On the regulatory side, Facebook has designed Libra to address some of the basic problems with many previous crypto tokens. By separating the currency, Libra, from the investment token that will be used to raise capital for the project, Facebook is seeking to avoid having Libra classified as a security under U.S. (and other nations’) laws. If Libra were deemed a security, it is unlikely the project could get off the ground. While Libra is to be fully backed by a reserve of cash and cash equivalents, users of Libra will not receive any return from that reserve. Instead, any earnings will be used to pay for maintaining the system and issuing dividends to holders of the investment token.
But the security analysis may not end there. While the reserve means Libra is likely to be less volatile than other cryptocurrencies, it will still fluctuate in value as exchange rates fluctuate. The reserve may be invested in “low-volatility” assets and may be designed for “value preservation,” but so are money market funds. The fact that the association will encourage the listing of Libra on electronic exchanges and will have the power to change the composition of the reserve may raise eyebrows at the SEC. If it sees features of an investment product in the design, Libra may still have significant security law hurdles to overcome.
That potential exchange rate risk poses a tax challenge as well: Should Libra be considered property for tax purposes, like Bitcoin? Stablecoins tied to a single currency such as the U.S. dollar are not treated as property. But the tax treatment of a coin tied to a basket of fiat currencies is not clear. If Libra is deemed property under U.S. or other nations’ laws, then a user could face recognition of loss or gain on each transaction. That would severely diminish its utility as a payment mechanism.
Compliance with anti-money laundering (AML) and know your customer (KYC) requirements will also be a challenge. The possibility that Libra could be used for illegal payments is the surest path to uniting financial regulators around the world against it. The white paper acknowledges the importance of AML but does not provide any specific compliance plans. Will a user have the responsibility to satisfy KYC and AML standards before making any transfer? Will the Libra Association, Libra’s governing body, implement central KYC and AML clearance of any person sending or receiving Libra?
The governance of Libra raises a host of interesting questions. Some crypto enthusiasts have been quick to point out that the centralized control by the Libra Association is antithetical to the decentralized promise of blockchain technology. Others have taken the view that there is no other practical way to launch the currency. The white paper says Facebook is committed to decentralized governance in the long term, and touts the fact that Facebook will be just one of many members of the association, no doubt seeking to allay concerns about Facebook increasing its own power and influence through Libra. But I would not read too much into the announcement that many prominent companies have agreed to participate. At this stage, those commitments neither tell us when or to what degree Facebook will relinquish control, nor are they evidence of third-party verification of the project’s viability. For a company like Visa, which has $20 billion in annual revenue and spends $1 billion a year on marketing, it is presumably an easy decision to ante up $10 million to have a seat at the table as this unfolds.
Moreover, for those who hope that blockchain can reduce our reliance on large institutions, the composition of the association—which includes many financial and technological giants—is not necessarily comforting.
The reasons for organizing the association as a Swiss foundation may also be more mixed than the white paper suggests, which says it is because Switzerland has a “history of global neutrality and an openness to blockchain technology.” Crypto enthusiasts at Fortune’s recent Brainstorm Finance conference claimed this is evidence that the U.S. is losing the blockchain innovation race to jurisdictions like Switzerland. But the use of Swiss foundations for international nonprofit activities is not uncommon. There are tax and general corporate law advantages to using such foundations, particularly if the organization is not primarily dependent on receiving tax-deductible contributions from U.S. persons, as will be the case for Libra. In addition, the choice of Switzerland as the jurisdiction of organization does not exempt Facebook or the association from having to comply with U.S. law if the token is offered, sold, and used here.
Given the concerns about Facebook’s technological dominance and past record, it is not surprising that the Libra proposal provoked quick and strong reactions in Washington. Senate and House leaders on both sides of the aisle have scheduled hearings for mid-July, and some have called on Facebook to halt work on the proposal. Even Federal Reserve Chair Jay Powell—who one year ago told Congress that the Fed did not have jurisdiction over cryptocurrencies—was quick to say the Fed will be examining the proposal closely. Regulators around the world have made similar statements.
The congressional hearings will surely examine Facebook’s objectives. Is it really to bring financial services to the unbanked people of the world, as the white paper claims? Or is it to create a new source of revenue as well as data collection? Even if that is not the primary objective, how will Facebook prevent itself from using the data generated by Libra for other purposes? Will the other financial giants who are members of the Libra Association have access to that data? And in light of its own poor privacy record, as well as the poor record of cybersecurity in the crypto industry generally, how will Facebook keep its users’ data protected and their accounts free from hacks?
Congress and financial regulators will also want to consider the long-term implications for financial stability and financial inclusion. If the goal of Libra really is financial inclusion—providing services to the unbanked, one must ask whether another mobile payments service is all that the targeted constituency needs. Don’t they also need credit and liquidity products, to tide them over between paychecks, or to help with unexpected cash needs? There are already several mobile payment services, such as WeChat and M-Pesa, some of which pay interest on deposits and provide loans. Will Facebook offer a broader range of financial services? At what point should Calibra or the Libra Association be subject to regulation as a bank or other financial intermediary?
While Facebook has said it does not intend to pay interest on Libra deposits, the financial stability consequences of significant deposits in Libra should be considered. The financial system is different than other industries because it is vulnerable to runs and panics. The federal government has provided deposit insurance on bank accounts since the 1930s to minimize the potential for bank runs. The white paper claims that the existence of the reserve “discourages ‘runs on the bank.’” But money market funds were thought to be stable because of their conservative investments also—until the fall of 2008. Now, we have taken some steps to reduce that vulnerability, though probably not enough.
Time and again, financial innovation has given rise to types of financial intermediation that operate outside the regulatory framework, often bringing lower costs, better services, or more choice. But sooner or later—as a result of a crisis or otherwise—we must reset the parameters of regulation to bring these new innovations into the fold. The challenge is whether regulators can strike a proper balance between allowing innovation and minimizing risks to financial stability at the outset.
Ten years ago, Satoshi Nakamoto proclaimed that Bitcoin could provide a peer-to-peer means to transfer value that could eliminate or at least reduce our reliance on large centralized financial intermediaries. It was an especially attractive idea in the aftermath of the 2008 financial crisis, but one that has not been realized. Should we regard the Libra proposal as a new iteration of that vision or a perversion of it? It would be ironic, after all, if blockchain gives rise to a Frankenstein-like incarnation of the very thing it was advertised to cure—a digital currency centrally controlled and administered by one of the most powerful, domineering technology companies in the world.
Timothy Massad is a senior fellow at the John F. Kennedy School of Government at Harvard University and an adjunct professor of law at the Georgetown University Law Center. He was the chairman of the Commodity Futures Trading Commission from 2014 to 2017.