On March 31, the Securities and Exchange Commission (SEC) issued Staff Accounting Bulletin No. 121 (Bulletin), noting that a company safeguarding or exerting custody over cryptocurrency on behalf of its platform users must clearly report the users’ assets as liabilities on the company’s financial statement, along with the risks consumers face by entrusting the company with their private, cryptographic keys.

Public-Key Cryptography. Public-key cryptography is a type of encryption scheme that uses two nonidentical, corresponding keys to encrypt and decrypt data. One of these keys is public — like an email address — and can be discovered by any user of a public blockchain. For example, in a peer-to-peer transaction, parties exchange public wallet addresses (i.e., public keys) to facilitate transfer and receipt of crypto-assets. When Party A sends a crypto asset to Party B’s public wallet address, Party A is sending Party B encrypted data that lives on the blockchain. To decrypt this data, Party B must have access to the private key that corresponds to the public key he provided to Party A. Stated differently, in public-key cryptography, only the private key owner can decrypt encrypted data sent to his or her public key, which affords this person complete control over the underlying crypto-assets.

Practical Considerations. As the Bulletin makes clear, users of entities who hold their crypto-assets in digital wallets provided on the entities’ platforms are not the true owners of those crypto-assets as the entities maintain the private, cryptographic keys necessary for platform users to access their crypto-assets. To mitigate risk of exposure to loss of platform users’ private, cryptographic keys (which would result in total loss of the underlying crypto-assets), the SEC suggests these entities will be required to engage in certain practices:

  • Report the obligation associated with these custody arrangements as liabilities on their balance sheets (safeguarding liability);
  • Measure safeguarding liabilities and crypto assets at fair market value at the time of acquisition; and
  • Make disclosures concerning the risks associated with entrusting one’s cryptographic key information to a third party, such as theft or loss.

The Bulletin requires entities that file with the SEC to comply with this updated guidance by June 15, 2022.

Our Take. Although the Bulletin does not provide a comprehensive regulatory framework, it suggests the SEC perceives public-key cryptography as both a unique and potentially hazardous phenomenon.

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Photo of Keith J. Barnett Keith J. Barnett

Keith’s experience representing clients in the financial services industry as a litigation, compliance, regulatory, investigations (internal and regulatory), and enforcement attorney spans 20 years. Keith represents clients against government regulators (CFPB, FTC, SEC, CFTC), industry regulators (FINRA), and private litigants in federal courts…

Keith’s experience representing clients in the financial services industry as a litigation, compliance, regulatory, investigations (internal and regulatory), and enforcement attorney spans 20 years. Keith represents clients against government regulators (CFPB, FTC, SEC, CFTC), industry regulators (FINRA), and private litigants in federal courts, state courts, and before arbitration and administrative law panels in the financial services industry.

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Addison is an associate in the firm’s nationally recognized Consumer Financial Services Practice Group. He has represented several of the nation’s preeminent financial institutions in litigation arising under the Fair Credit Reporting Act (FCRA), the Telephone Consumer Protection Act (TCPA), the Fair Debt…

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