The rest of the Clarity Act hinges on that guarantee because there is no market for digital assets to regulate if the people building it can’t afford to build it in the United States. The provision survived committee markup intact, despite a filed amendment that would have cleaned it up, and it must remain in through the final vote, in full and without dilution.
Here’s why this matters to people who will never read a word of the statute. The engineers who write this software, from Solana’s core contributors to the designers of new DeFi protocols, publish code that anyone in the world can download and use. They have no money. They can’t freeze an account or move money because they never touch it. Treating a software developer like a bank teller makes about as much sense as calling an email app engineer a mail carrier. Treasury’s 2019 FinCEN guidance already recognized that simply providing software or network tools used by money transmitters does not, by itself, make someone a money transmitter. BRCA adapts the criminal law to this standard.
When the laws are unclear, regulators and prosecutors fill the gap. Treasury has pursued developers who wrote and published software but never had a customer’s assets. The conviction of Tornado Cash developer Roman Storm for conspiring to operate an unlicensed money transmission business is the case people know, and it fits a pattern that should concern anyone who cares about American innovation. Cases like that are already putting pressure on developers abroad.
