NFTs and State Laws Governing Securities Regulation, Virtual Currency, and Money Transmission

Abstract

The market of non-fungible tokens (NFTs) is rapidly growing and their potential uses and applications are still being discovered. The rapid growth of this market, coupled with the unique nature of NFTs, which do not fit squarely within the existing regulatory frameworks, creates a regulatory gap between existing and effective regulation of NFTs. This gap, in turn, creates a policy-making dilemma: on the one hand, regulating NFTs too quickly could prevent efficient uses and applications from being discovered and deployed, thus stifling innovation. On the other, leaving NFTs unregulated could leave investors unprotected from the risks posed by this innovation. With this dilemma in mind, this chapter argues that regulation of NFTs should occur sparingly, and to the extent that it does occur, regulatory experimentation and competition emerges as the most promising approach. In the US, one place where regulatory competition exists is between and among the states. State regulation in the areas of securities and virtual currency and money transmission can be used to address some of the prominent present concerns posed by NFTs, such as frauds and money laundering, and states have the opportunity to experiment as NFTs evolve and are refined.