US senators challenge DOJ’s broad definition of crypto money transmitters

On May 13, 2024

Two US lawmakers have opposed the Department of Justice’s (DOJ) attempt to expand the definition of a money-transmitting business.

In a May 9 letter to US Attorney General Merrick Garland, Senators Cynthia Lummis and Ron Wyden argued that the DOJ’s broad interpretation could criminalize non-custodial crypto asset software services.

According to the lawmakers:

“The DOJ’s unprecedented interpretation of this statute in the context of non-custodial crypto asset software services contradicts the clear intent of Congress and the authoritative guidance of the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN).”

DOJ’s argument

In April, the DOJ argued that the crypto mixer functioned as an unlicensed money transmitter as its rebuttal to Tornado Cash’s developer Roman Storm’s motion for dismissal.

In its motion, the DOJ argued that controlling funds was not a prerequisite for such classification. According to the Justice Department:

“The definition of ‘money transmitting’ in Section 1960 does not require the money transmitter to have ‘control’ of the funds being transferred. The definition exends to ‘transferring funds on behalf of the public by any and all means.”

Congress intent

The lawmakers believe that the DOJ’s position was wrong as Congressional intent for the law requires that a company must have “direct receipt and control of assets” to qualify as a money-transmitting business.

The lawmakers also cited the Bank Secrecy Act and several FinCEN regulations to support their argument against the DOJ’s stance.

The senators also stated :

“Non-custodial crypto service providers cannot be classified as money transmitter businesses because users of such services retain sole possession and control of their crypto assets.”

The lawmakers urged the DOJ not to divert “from the clear, logically sound, and well-established definition of “money transmission” established by FinCEN.” They added:

“Subjecting developers of non-custodial crypto asset software to potential criminal liability as unregistered money transmitters contravenes the well-established interpretation of this provision and will only serve to stifle innovation and shake confidence in the DOJ’s respect for the rule of law.”