The rest of the Clarity Act depends on this guarantee, because there is no digital asset market to regulate if the people building it don’t have the means to build it in the United States. The provision survived the committee markup intact, despite an amendment filed that would have gutted it, and it must remain in effect until the final vote, fully and undiluted.
Here’s why this matters to people who will never read a word of the law. The engineers who write this software, from the core contributors of Solana to the designers of new DeFi protocols, publish code that anyone in the world can download and use. They don’t hold any money. They can’t freeze an account or move funds because they never touch it. Treating a software developer like a bank teller makes as much sense as calling an email app engineer a mailman. Treasury’s 2019 FinCEN Guidance already recognized that simply providing software or network tools used by money transmitters does not, in and of itself, make someone a money transmitter. The BRCA aligns the penal code with this standard.
When the laws are murky, regulators and prosecutors fill the void. The Treasury pursued manufacturers who wrote and released software but never held a customer’s assets. The conviction of Tornado Cash developer Roman Storm for conspiring to operate an unlicensed money transfer business is a case people are familiar with, and it fits a pattern that should worry anyone who cares about American innovation. Cases like this are already driving developers overseas.
