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The outcome of the U.S. elections has sparked optimism within the cryptocurrency sector, with hopes for a crypto-friendly president and Congress potentially reshaping the regulatory landscape. While the path to comprehensive federal crypto regulation remains challenging, the election results provide hope for more regulatory clarity and selective enforcement at the federal level.

However, while federal reforms are crucial, state laws and regulators will continue to hold significant sway over many digital asset products and markets in the U.S. Financial services in the U.S. are not only subject to federal oversight but also governed by state-level regulations. Therefore, states will remain a key player in the regulation of cryptocurrencies, tokenization, and blockchain technology, which supports financial transactions and products like stablecoins.

The Role of State Regulators in Digital Asset Products

Even with anticipated federal clarity, crypto ventures will still need to navigate state-specific regulations. For instance, financial institutions such as banks, insurance companies, and payment providers seeking to offer digital asset products must comply with state rules, including those for money transmitters and state-specific crypto regulations like New York's BitLicense and California's Digital Financial Assets Law.

The BitLicense, introduced by the New York State Department of Financial Services, is particularly notable. It requires companies engaging in virtual currency activities in New York to obtain the license, regardless of their federal registration status. This highlights how state regulators will continue to oversee crypto activities, setting additional regulatory requirements for businesses dealing with digital assets.

State regulators in major financial hubs like New York and California will remain active in shaping the crypto sector, ensuring that activities within their jurisdictions comply with both general financial services laws and state-specific crypto regulations. The outlook of these regulators may not always align with federal policies, especially if shifts in political power at the federal level prompt state regulators in blue states to strengthen their own oversight.

Unresolved State Law Issues Affecting Crypto

Despite potential federal regulatory updates, state law issues, such as property ownership and legal liabilities associated with digital assets, will remain largely unaffected. The legal status of decentralized autonomous organizations (DAOs), for example, continues to be uncertain, and there is ongoing litigation surrounding their structure and liabilities. Many DAOs operate without formal legal entities, increasing the risk for members or token holders who could face personal liability for the organization's actions.

Efforts to modernize state laws are underway. Notably, the Uniform Commercial Code's 2022 amendments introduced Article 12, which seeks to provide consistent legal treatment for digital assets and blockchain records. This amendment is designed to establish clear definitions and rules regarding the control and transfer of electronic records, including cryptographic keys. As of November, 25 states have enacted Article 12, with five additional states considering it.

The evolution of state laws on digital assets will continue alongside, and independently from, federal regulatory efforts. As federal reforms unfold, it is essential for businesses in the digital asset space to remain aware of the state-level regulations that will still govern their operations. The interaction between state and federal laws will be a critical factor in shaping the future of digital asset markets in the U.S.

Joseph A. Castelluccio, Justin Herring, and Don F. Irwin are experts in fintech, digital assets, and regulatory law at Mayer Brown LLP, and their insights reflect the continuing importance of state regulations in the digital asset space.