El Salvador’s Adoption of Bitcoin as Legal Tender May Bring Bitcoin Activity Within Scope of Money Transmitter Laws in More States

The Uniform Money Services Act (UMSA), model legislation promulgated by the Uniform Law Commission and adopted in whole or in part in several states, requires a license to “engage in the business of money transmission or advertise, solicit, or hold [one’s self] out as providing money transmission.”¹ A license also is required to do the same for currency exchange, if the currency exchange business accounts for “revenues equal or greater than [five percent] of total revenues” of a business (though a money transmitter generally would not need to obtain a currency exchange license to provide such services).² Money transmission is defined as “selling or issuing payment instruments, stored value, or receiving money or monetary value for transmission.”³ Currency exchange means “receipt of revenues from the exchange of money of one government for money of another government.”⁴ Critically, money is defined for purposes of the UMSA as “a medium of exchange that is authorized or adopted by the United States or a foreign government.”⁵  Some states that have not adopted the UMSA use similar language.

By virtue of El Salvador’s adopting Bitcoin as legal tender, it arguably has become a medium of exchange adopted by a foreign government. Under a plain-language reading, engaging in predicate money transmitter or currency exchange activities with Bitcoin now may fall within the scope of both money transmission and currency exchange statutes in any state or territory that has adopted the UMSA definition of “money.” Thus, the requirements of these laws could apply even in jurisdictions that have not otherwise affirmatively addressed virtual currency activity in statute, regulation, or guidance. Accordingly, businesses engaged in Bitcoin activity should carefully evaluate their business models to assess whether the services they are providing would now be considered money transmission or currency exchange in U.S. jurisdictions in which they operate. Sidley has a team assessing these and other indirect effects of the treatment of Bitcoin as legal tender in El Salvador, including on securities laws and tax laws.