Jake Chervinsky
@jchervinsky
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Lawyer, but not yours. CLO @variantfund. Board @fund_defi + @blockchainassn. Ex @compoundfinance. Posts are not legal or financial advice.
Washington, DC 🇺🇸
Joined June 2009
1/ DOJ thinks non-custodial smart contract protocols are “money transmitting businesses” and DeFi developers who build them could be criminals. DOJ is wrong. In this paper, @dbarabander, @amandatums, and I explain how DOJ misunderstands 18 USC § 1960 👇.
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1/ 🚨 Here's the deal with the US infrastructure bill:. A new provision has been added that expands the Tax Code's definition of "broker" to capture nearly everyone in crypto, including non-custodial actors like miners, forcing them all to KYC users. This is not a drill 👇.
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FTX's failure doesn't justify a rush to regulate in the US. FTX is a non-US exchange based in the Bahamas. By design, it didn't have any US customers so that it wouldn't be subject to US jurisdiction. There is no law Congress can pass to prevent the failure of an offshore firm.
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A lot of people think the collapse of FTX is evidence that crypto doesn't have a future. For me, it's the exact opposite. This proves why crypto—trustless, permissionless, uncensorable crypto—is the only path forward for the future. This week, we grieved. Next week, we build.
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Make no mistake: if they manage to ban PoW, they'll come for PoS next, & every other sybil resistance mechanism after that. This isn't just about environmental impact: it's about the right of non-state money to exist. Their strategy is divide & conquer. Let's not fall for it.
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No matter your view on @Ripple, two things seem clear:. - They're giving the SEC more trouble than anyone in crypto, maybe more than anyone period, incl. Elon. - They're the leading dispute on securities law, if only b/c they'll fight to the death unlike those who caved & settled.
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Senator Richard Shelby (R-AL) has objected to the compromise amendment. He didn't get his own amendment for $50b in defense spending, so he's against all others. Unless he changes his mind, that's it. The compromise amendment is dead. FYI, he's retiring at the end of this term.
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1/ Grayscale's victory over the SEC is *massive.*. It's very rare for a federal circuit court to find that an agency has violated the APA by acting arbitrarily and capriciously. The DC Circuit just delivered a huge embarrassment for the SEC. But the ETF isn't approved yet 🧵.
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1/ A quick explainer on what happened with the infrastructure bill last night:. We were on track to pass the Wyden-Lummis-Toomey amendment to fix the worst issues with the bill, & then Senators @RobPortman & @MarkWarner came from nowhere to blow it up. Now the vote's tomorrow 👇.
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The idea of taxing unrealized capital gains is so perplexing, so completely ridiculous, that it's hard to imagine anyone who knows anything about finance could possibly mean it seriously.
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1/ Russia can't & won't use crypto to evade sanctions. Concerns about crypto's use for sanctions evasion are totally unfounded. They fundamentally misunderstand:. - how sanctions work.- how crypto markets work.- how Putin is actually trying to mitigate sanctions. I'll explain 🧵.
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1/ I’m proud to announce that @BlockchainAssn has filed an amicus brief in the SEC’s case against @Ripple. In short: the SEC is wrong on the law, and its pattern of regulation by enforcement is harmful to both US crypto companies and the investors that it's meant to protect. 🧵.
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Call me crazy, but I truly believe crypto is on the front line of the war for individual liberty in the digital age. So many rights are at stake: free speech, association, financial privacy, property ownership, on and on. I'm grateful each day to fight alongside all of you 🙏.
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1/ Today, @BlockchainAssn sent FOIA requests to the Fed, FDIC, and OCC, demanding information about the unlawful debanking of crypto companies. We are also collecting evidence of debanking. Share your story with us:. debanked@theblockchainassociation.org. Here's the situation 🧵.
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From @TedCruz to @AndrewYang (thank you both for the RTs), bipartisan opposition to the infrastructure bill's crypto provision is overwhelming. This fight isn't one party vs. another. It's good policy vs. the scheming of unelected bureaucrats in the Treasury Dep't. We will win.
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I want to know how many whistleblower complaints were filed with the SEC tipping them off to FTX's fraud. I want to know how many were filed before FTX met with Chair Gensler's office to talk about a sweetheart deal. I want to know why our "cop on the beat" was blind to this.
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I survived the bear market of April 17, 2021 from 11 to 11:30 pm ET.
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1/ SEC Chair Gary Gensler has wrongly prejudged that all digital assets are securities. As a result, federal law requires that he recuse himself from all enforcement decisions related to digital assets. @MTCoppel and I wrote a paper explaining why 👇.
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I can't believe mainstream media is still running stories about Sam Bankman-Fried without a single mention of his criminality. This is a con man who perpetrated a historic fraud. He stole billions of dollars from unsuspecting victims. How is that not the lead of every story?? 🤬.
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🚨 IT'S TIME TO CALL YOUR SENATORS 🚨. Tell them you support the Wyden-Lummis-Toomey amendment to fix the unacceptable crypto surveillance provision in the infrastructure bill. Everyone. NOW. Here are instructions with the number to call & what to say:.
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FTX's fraud wasn't a failure of US regulation. There are many laws on the books that prohibit US exchanges from trading customer funds. FTX was a Bahamian exchange, not a US one. But, if FTX had US customers (by VPN), then it *was* a failure of US regulators, both SEC and CFTC.
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1/ The SEC filed a complaint yesterday accusing ten companies of violating the securities laws: nine digital asset issuers & one exchange. None of them are defendants in the case. None of them will get their day in court. If this isn't regulation by enforcement, nothing is 🧵.
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Privacy is normal. Living in a surveillance state in which the government demands to watch everything we do with our money at all times without obtaining a warrant is NOT normal. Treating software developers who build privacy-preserving technology as criminals is reprehensible.
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SEC: our mission is to protect investors. Also SEC: reviews Coinbase's business model, approves Coinbase to go public, allows Coinbase to sell stock to retail investors. Then SEC: alleges Coinbase's business model is illegal and tanks stock by 20% causing losses to investors. ???.
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Gov't: you can't do private transactions.You: why?.Gov't: you might be doing something bad.You: but I'm not.Gov't: we'll be the judge of that.You: don't you work for me?.Gov't: yes, this is best for you.You: what else are you doing with my tax money?.Gov't: none of your business.
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Bitcoin mining could be the best thing to happen to renewables in years: it makes them economically viable in places they'd otherwise never get built. People who care about transitioning from fossil fuels to renewables should be the biggest supporters of Bitcoin out of everyone.
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Tomorrow, I'll tell Congress how public blockchains will revolutionize the global financial system. I'll explain why they *must* pass stablecoin legislation, or else lose ground to China and lose entrepreneurs to other countries. My written testimony:
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1/ Today's @Coinbase hearing revealed a key flaw in the SEC's legal theory: it turns nearly every asset on the planet into a security. That can't be true. The SEC was created to regulate markets for *financial* instruments, not digital goods or the technologies empowering them.
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If the SEC's legal theories on investment contracts are right, then basically all luxury goods in existence—watches, sneakers, cars, handbags—are securities. The idea that the SEC should regulate markets for these goods is. I don't know how else to say it. pants-on-head crazy.
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FTX wasn't a crypto problem, it was a criminal problem. A tale as old as time: a con man tricks unsuspecting victims into giving him their money under the guise of his high morals and trustworthy character, and then runs off with the funds. This has nothing to do with crypto.
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Max pain is the four-year crypto market cycle predictably playing out over & over again while everyone convinces themselves that each time is different.
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If the politicians you like can freeze the accounts of the protesters you hate. then the politicians you hate can freeze the accounts of the protesters you like. How certain are you the politicians you hate will never, ever be in power again?.
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In the not-so-distant future, it will make just as much sense for a politician to "oppose crypto" as it does today for one to "oppose the internet.".
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Grayscale wins. The SEC's war on crypto is falling apart in the courts.
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Chair Gensler may have prejudged that every digital asset aside from bitcoin is a security, but his opinion is not the law. The SEC lacks authority to regulate any of them until and unless it proves its case in court. For each asset, every single one, individually, one at a time.
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Josh sued the IRS for clarity on taxation of new tokens created through staking. The IRS tried to pay him off to drop the suit. He turned down the money to continue the case & seek binding precedent for us all. 👑. Huge thanks to Josh & his legal team for fighting the good fight!.
But I refused the offer, because I know that until my case receives an official ruling, I have no certainty they won’t try to tax me again.
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Sen. Warren's bill would impose a de facto ban on crypto in the USA, criminalizing all sorts of legitimate activity like mining and staking, while doing nothing to actually combat illicit finance. It's no surprise she's having trouble finding co-sponsors.
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I mean this seriously: there's nothing I'd rather do on a Saturday than fight for the rights of software developers.
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The @nytimes finally wrote a positive story about a crypto founder who. *checks notes*. defrauded victims out of billions of dollars.
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IRS has finalized the second half of its broker rule, requiring most DeFi front-ends to KYC users starting in 2027. This unlawful rule is the dying gasp of the anti-crypto army on its way out of power. It must be struck down, either by the courts or the incoming administration.
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Breaking: after Twitter hack, bitcoin volatility skyrockets as price crashes in freefall from $9,225 to $9,220.
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FIT21 passes the House 279 - 136 🎉. House Democrats voting in favor of this bill: 71. That is a *huge* number of elected Democrats voting "no confidence" in the current SEC, and sending a message to the Biden administration that "anti-crypto" is a losing platform this year.
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It's shocking how fast we went from selling @elonmusk on bitcoin to fawning over him for Tesla's purchases to demonizing him for shilling Doge. If nothing else, it's a good reminder that Bitcoin is not, never was, & should never be focused on collecting celebrity endorsements.
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I'm old enough to remember when most bitcoiners believed in economic freedom and open market competition. I can't believe the number of self-professed bitcoiners now saying some version of "I'm fine with the government picking winners and losers as long as the winner is my bag.".
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0/ @Bakkt plans to launch next month on December 12, and some people are hoping it kicks off another crypto bull run. Now seems like a good time for a quick discussion on:. - what Bakkt is.- why it might be exciting.- when it will get regulatory approval. Thread. 👇.
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Coinbase has spent an extraordinary amount of time and resources working in good faith to seek regulatory clarity from the SEC. The idea that they'd be rewarded with nothing but a Wells notice is sad, but not surprising from an agency best known for regulating by enforcement.
1/ Today Coinbase received a Wells notice from the SEC focused on staking and asset listings. A Wells notice typically precedes an enforcement action.
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When ETH fell to $100 in March 2020, we were all heads down building. When ETH regained $1400 in January 2021, we were all heads down building. When ETH went over $4000 in May 2021, we were all heads down building. When ETH fell to $2000 in June 2021. You get it, right?.
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Not legal advice, but my sense is US crypto exchanges should feel good about relisting XRP today.
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Investors, with bitcoin trading under $4,000:. Retail: "should I sell and buy back lower? should I open a short? should I just give up? is it going to zero? was this whole crypto thing a scam after all?" 📉😱. Institutions: "please keep selling us cheap bitcoin. thank you." 😆💰.
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1/ After a long wait, FinCEN has finally issued its new proposed rule extending AML regulation to non-custodial wallets. It could've been worse (really), but it's still a terrible rule in both process & substance. Here's what it says, what's wrong with it, & what we do next 👇.
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The SEC has denied Grayscale's proposal to convert GBTC to an ETF. Deeply disappointing. The point of the SEC is to protect investors & an ETF is unquestionably a better product for them. This decision defies both common sense & federal law. I hope it goes quickly to court.
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I didn't know anything about crypto until last year when I saw a random article about price and decided to finally learn what bitcoin was about. Price brought me in, but there's *nothing* price can do to drive me out. I guarantee I'm not alone. The virus will keep spreading. 👊.
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Do people actually believe the FBI has a secret quantum computer that can break SHA256 at will & the way they chose to out themselves was by. seizing a few dozen BTC?.
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Bitcoin is doing exactly what it's designed for today:. - Fed cuts interest rates, making money cheaper.- China devalues yuan, escalating currency war.- Dow falls 760 points, losing January 2018 highs.- Bitcoin rises 7.5%. If you're surprised, you haven't been paying attention.
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Here's the message we're going to send in DC:. If you treat crypto unfairly, if you stand for the status quo instead of for innovation, if you care more about protecting legacy incumbents than the American people, you will pay a severe political price. We're done being quiet.
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This is huge. The GAO reviewed SAB 121, an illogical anti-crypto accounting bulletin issued by the SEC last March, and found that it's a "rule" under the CRA and APA. The SEC didn't comply with either. This is a clear statement from a federal agency that the SEC broke the law.
Securities and Exchange Commission—Applicability of the Congressional Review Act to Staff Accounting Bulletin No. 121
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After Bernie Madoff's fraud was revealed, was it the end of investment firms?. After Elizabeth Holmes's fraud was revealed, was it the end of blood testing?. Now that SBF's fraud has been revealed, will it be the end of public blockchains?. No, no, no. The mission continues.
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It's been a full week since Dutch authorities arrested a Tornado Cash developer for allegedly "concealing criminal financial flows.". They still haven't said he did anything but write code. This is a grave injustice. It is unacceptable, full stop. We deserve an explanation, NOW.
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> "Privacy is for criminals". Okay, then publish all your emails, texts, bank statements. maybe a live stream of your bedroom?. > "It's okay if only gov't can see it". Sure, until gov't abuses it or loses it to foreign hackers, both of which are quite likely given recent events.
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21/ Things are moving fast, which can feel scary. But as it was with FinCEN's proposed rule, it's been amazing to see the entire industry come together this week to fight against this. We really do have some of the best & brightest on our side. Stay tuned for updates. [end].
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Imagine you're a regulator looking at the wide world of crypto. You see overt frauds pulling rugs; 2017 vaporware ICOs still pushing their tokens; copy/paste DeFi projects pumping & dumping on centralized EVM forks. You see this & think, ". Uniswap. I'll go after Uniswap." 🤨.
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@RepMaxineWaters @SBF_FTX Rep. Waters, we appreciate that you're holding a hearing on the 13th, and we look forward to substantive factfinding about what happened at FTX. I am certain that factfinding will show that @SBF_FTX has not, in fact, been candid in his discussions. He committed fraud, full stop.
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Imagine the SEC denying a bitcoin ETF proposal because of market manipulation concerns after all this.
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Sometimes I wonder if by "protect investors" they really mean "protect megabank shareholders.".
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18/ But we *can* stop them. To do that, we need to make more calls to Senators. A lot more. We need to tell them to vote YES on Wyden-Lummis-Toomey & NO on Portman-Warner. If you're willing & able, please use the number & script here to call today:.
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It's rare in the world of SEC enforcement to see public outcry register on a federal court docket in the way we've seen from XRP holders since December 2020, and @JohnEDeaton1 deserves a lot of credit for that, and for this brief. 👏. I look forward to reading the SEC's reply.
Dedicated to #XRPHolders. It truly is a #Decentralized Community Brief.
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Before this is all over, I expect to be in front of the Supreme Court arguing about Fourth Amendment limitations on third-party doctrine in the cryptocurrency context. Bookmark this tweet.
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If the spot ETH ETF is approved, it will be a true shock to everyone I know in DC who's close to this process. That doesn't mean it won't happen. It means approval could signal a major shift in US crypto policy after the SAB 121 vote, perhaps more important than the ETF itself.
Update: @JSeyff and I are increasing our odds of spot Ether ETF approval to 75% (up from 25%), hearing chatter this afternoon that SEC could be doing a 180 on this (increasingly political issue), so now everyone scrambling (like us everyone else assumed they'd be denied). See.
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I don't know who needs to hear this but the SEC is a financial markets regulator, not the open-source software police.
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This is insane. One of the main reasons the US has such strong capital markets is because companies & investors can rely on the rule of law, rather than being at the mercy of the whims of gov't officials. The SEC is directly undermining its own mission to promote those markets.
After months of trying to engage with the @SECGov on our planned Coinbase Lend product, we recently received notice that it intends to pursue legal action against us. We believe dialogue is at the heart of good regulation, even if the SEC may not.
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The law firm that litigated the original Operation Chokepoint case in 2014 just published a whitepaper explaining how the banking regulators are using the same unlawful threats and pressure tactics against the crypto industry in 2023. This is a must read:.
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"I disapprove of what you say, but I will defend to the death your right to say it". is quickly losing ground to. "I disapprove of what you say, so I'm cutting you off from the financial system". Bitcoin actually seriously fixes this.
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Today, @BlockchainAssn sent a FOIA request to the SEC seeking documents related to its dealings with Prometheum. This whole story—Prometheum's ATS, its CEO's testimony in Congress—makes no sense. Something fishy is going on here. @MTCoppel and I will get to the bottom of it 👇.
1/ Today @BlockchainAssn FOIA'd the SEC seeking information (docs & comms) about Prometheum and the ATS. In the midst of aggressive SEC enforcement, Prometheum gets approval for first-of-its-kind Special Purpose Broker-Dealer (SPBD) for digital asset securities. Suspicious….
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I've spent all week on the @TornadoCash sanctions & haven't heard a satisfying justification yet. The main argument is "criminals used it a lot." Okay, but they use everything law-abiding citizens do. Where's the line? How slippery is this slope? The uncertainty is a step back.
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I first heard about bitcoin in 2013, but didn't bother looking into it until 2017 when I saw an article about a new all-time high ($3,000). Many others have the same story. Like it or not, all-time highs convert more nocoiners than anything else. The bull market starts at $20k.
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It's honestly shocking how resilient DeFi has become. In March 2020, protocols were threatening to break left and right, while the centralized lenders seemed mostly okay. Now, the exact opposite. Despite all the turmoil, DeFi is humming along smoothly. This is a turning point.
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I expect some day crypto will be part of ordinary life for most people the way the internet is today, & they'll treat it like it's totally normal, & a bunch of us will be like "you have no idea how hard we had to fight for this!" & they'll be like "okay grandpa, time for bed" 😑.
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18/ If you're a US citizen, call your Members of Congress, especially Sen. Portman if you're in Ohio. If anyone says "this won't help" after we held off FinCEN & the FATF, I'll lose my mind. Find your House Rep: Find your Senator:
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The SEC just sent a Wells notice to Robinhood. The number they've sent about crypto in recent months is astonishing. It's hard to imagine that they would (or could) bring so many enforcement actions at once. It seems like they're abusing the Wells process as a scare tactic now.
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It took over ten years, but we’re finally on the verge of having spot bitcoin ETFs approved in the USA. (Yes, we are.). Many deserve credit for this milestone, but chiefly @Grayscale and its lawyers, who had the guts to fight this out in court and won. Let’s fight more in 2024.
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If you're a candidate for Congress in 2022 & you have no crypto position or an anti-crypto position, you're gonna have a bad time.
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I'm not about to name & shame anyone, but there are people on this website who've made an entire career based on Bitcoin & have hundreds of thousands of followers or more but still haven't said a word about the infrastructure bill. 👀.
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If you're following all the news about SBF today, take one moment to reflect on Ross Ulbricht. SBF got 25 years. That's a long time, but he'll get out and have a life left afterward. @RealRossU got two life sentences, plus 40 years. This is not justice.
0/ Ross Ulbricht shouldn't spend the rest of his life in prison. If you're wondering why his name keeps coming up on #cryptotwitter, please read this. It's long but important. Thread.
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You guys, she said YES!. I can't believe it. What a great day. I couldn't be happier. The question was if we can buy more bitcoin. My wife is awesome! 🚀.
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One of my closest friends bought bitcoin in 2013, sold all of it in 2014, and never thought to buy back in. Until today. If that's not bullish, I don't know what is. 🚀🚀🚀.
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Translation: he doesn't mind lying to Andrew Ross Sorkin or George Stephanopoulos, but lying to Congress under oath is less appealing.
Rep. Waters, and the House Committee on Financial Services:. Once I have finished learning and reviewing what happened, I would feel like it was my duty to appear before the committee and explain. I'm not sure that will happen by the 13th. But when it does, I will testify.
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No, ETH isn't a security just because someone makes an unfounded allegation, even if that "someone" is an enforcement agency in court. Agencies are like any other plaintiff: they can write whatever they want in a complaint. It may get some press, but it doesn't change a thing.
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21/ After that, the crypto provision won't take effect until 2023 at earliest, so we can keep fighting to reverse it in Congress or overturn it in the courts. Let's cross that bridge if & when we get there. For now, only one thing really matters:. CALL YOUR SENATORS! 🇺🇸. [end].
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Thanks for all your effort & support these past ten days. Despite the outcome, I'm extremely proud of the impact we made & I'm optimistic for the future. I'll share thoughts later on what happened & where we go next, & will try to respond to your (many) messages. Talk soon! 🙏.
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"I wasn't running Alameda. I didn't know exactly what was going on. I didn't know the size of their position.". If you're @carolinecapital or @alamedatrabucco right now, I assume you're watching this and thinking very hard about your options. DOJ is only a phone call away.
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We need to have a longer conversation about why Congress is delegating its legislative power to unnamed, unelected officials in the Treasury Department, but that can wait until after the vote on this amendment.
Can confirm Treasury was consulted on this crypto agreement and does not oppose -->.
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You're using the term "ponzi" to mean an economic game with built-in investing incentives & high risk of implosion. When regulators hear "ponzi" they think it means a fraudulent scheme in which a criminal deceives victims to steal their money. This term is doing massive damage.
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There's still so much we don't know about FTX. The investigations will be, and should be, extensive and unrelenting. But in addition to investigating FTX, we need to know how US regulators got this so wrong. Until then, none of them deserve more authority to regulate crypto.
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The best time to withdraw crypto from an exchange to your own wallet was when you bought it. The second best time is now. Seriously, NOW.
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The SEC has fully lost the plot. The idea that a financial markets regulator established in the 1930s would have jurisdiction over digital art in the 2020s defies not only common sense but also the SEC's statutory authority. Thanks to @opensea for fighting the good fight 🫡.
OpenSea has received a Wells notice from the SEC threatening to sue us because they believe NFTs on our platform are securities. We're shocked the SEC would make such a sweeping move against creators and artists. But we're ready to stand up and fight. Cryptocurrencies have long.
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During the holidays last year, I told everyone in my extended family about my deep dive into bitcoin & how I was certain it would change the world. Now the price is down 80% & I'm heading to see all those people again. I guess I'll just tell them. the exact same thing.
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1/ There's been so much regulatory & enforcement news in crypto lately, it's impossible to keep up. So instead of getting lost in the details, let's step back & consider the big picture. What's really going on here?. In short: an ideological war over self-custody & privacy. 👇.
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President Biden has frozen all agency rulemaking pending further review. This includes former Secretary Mnuchin's proposal on "unhosted wallets.". We fought hard & earned the right to take a breath & reset. Janet Yellen isn't Steve Mnuchin. I'm optimistic.
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