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Everything You Need to Know About Cryptocurrency Regulation

Originally posted on UpCounsel by Gary Ross.

The meteoric rise of cryptocurrencies has taken the world by storm. Innovators, investors, users, and governments are scrambling to wrap their heads around cryptocurrencies and the blockchain technology that they rely upon. The emergence of a new market and business model has created great opportunities for participants, but it also carries significant risk.

Cryptocurrencies present an inherently unique challenge to governments because of their new technology, cross-jurisdictional nature, and frequent lack of transparency. Governments are struggling to develop new ways to regulate cryptocurrencies, adapt existing regulations, and identify fraudulent schemes. Cryptocurrencies and their regulations are evolving before our eyes, and this article will provide a brief background on cryptocurrencies and an overview of where cryptocurrency regulations currently.

What are cryptocurrencies?

Cryptocurrency is, by any other name, a currency—a medium of exchange used to purchase goods and services. Or, as some have suggested, cryptocurrency is a “peer-to-peer version of electronic cash.” However, this currency has two qualities that distinguish it from traditional bills and coins.

First, cryptocurrency is a virtual currency that is created through cryptography (i.e. coding) and developed by mathematical formulas through a process called hashing. Second, unlike traditional bills and coins that are printed and minted by governments around the world, cryptocurrency is not tied to any one government, and thus is not secured by any government entity. The fact that cryptocurrencies are not secured by a government authority has led to concerns from critics that this is the second coming of Tulipmania, because we are ascribing value to an otherwise valueless item. However, the potential for cryptocurrencies as a medium of exchange remains enormous.

What is blockchain?

Blockchain is the technology at the heart of most cryptocurrencies, and explaining the technology in detail would require a blog post of its own. What is important to know is that blockchain is a record of peer-to-peer transactions categorized into blocks on a distributed ledger. Despite the obtuse terminology, blockchain functions similarly to a local bank authorizing and recording a transaction, but instead of only one party holding the entire ledger book, the transactions are recorded communally by member nodes, with each node being a computer in a peer-to-peer distributed network.

The blockchain can confirm a transaction within minutes, removing errors that exist when trying to reconcile and audit separate ledgers and transactions. Whenever a transaction takes place, the miners on the blockchain develop a new hash and digital signature to update the ledger and create a new “block.” This block, or recorded transaction, is time-stamped and encrypted and will remain on the blockchain for life.

Regulation in the US – Utility Tokens v. Investment Tokens

In the United States, there has been no federal regulation of cryptocurrencies. Instead, cryptocurrencies are often grouped into two non-binding categories: (1) investment tokens that fall under the purview of already existing U.S. securities laws like the Securities Act of 1933 and the Securities Exchange Act of 1934, and (2) utility tokens, which remain largely unregulated (for now).

Security Tokens

Whether the tokens being offered in connection with a particular cryptocurrency are security tokens is decided on a case-by-case basis that even experienced securities lawyers can disagree upon. Tokens are usually analyzed under the four-part Howey Test below to see if the token is in fact a security. Securities must meet the following criteria:

  1. An ​investment of money
  2. in a ​common enterprise
  3. with an ​expectation of profits
  4. predominantly from the efforts of others

Each characteristic of the token is analyzed against this framework to see if the cryptocurrency is in reality functioning as a new-age security. If it is, then regulators treat it as such, and cryptocurrencies must then be registered and handled with all of the same disclosures and precautions as any other security sold in the United States or to U.S. investors.

 

Utility Tokens

Cryptocurrencies can also be categorized as non-security utility tokens. These tokens purport to offer intrinsic utility and value, and are typically instrumental in powering the blockchain technology. These tokens function more like commodities than securities, and while they may act like currency in a fully functional network, they also have other values.

However, having a utility token with a properly formed and functioning network does not preclude said token from being labeled a security by the SEC. In In the Matter of Munchee, Inc., a purported utility token with a non-functioning network was labeled a security by the SEC. While labeling a token without a functioning network as a security – as it has no present utility – is not unexpected, the SEC also concluded that: “even if [Munchee] tokens had a practical use at the time of the offering, it would not preclude the token from being a security.”

After analyzing the Munchee Tokens under the Howey test, the SEC concluded that they were investment contracts because purchasers of the tokens had an expectation of profits predominantly from the efforts of Munchee and its staff. The SEC further concluded that Munchee had primed such expectations through its marketing efforts.

While this new case does not eliminate the distinction between utility and security tokens, it does caution that, when deciding whether a given token is a security, the SEC will look beyond utility at the character of the instrument, and base their conclusion based on the terms of the offer, the plan of distribution, and the economic inducements held out by the token issuer.

State Regulation

So far only the state of New York has issued any kind of regulation specifically regarding cryptocurrencies: the BitLicense. The BitLicense is New York’s attempt to control cryptocurrencies within its borders by requiring cryptocurrency businesses to register and comply with several different disclosure and financial obligations. The regulation has been divisive, and many businesses have rallied against its high costs. While a few companies have applied for and received the license, most other companies have simply left the state or stopped offering services to its residents.

Regulation Abroad – The Ever-Shifting Jurisdictional Question

The United States is not the only country grappling with how best to regulate cryptocurrencies. Many cryptocurrency businesses face daunting questions regarding in which jurisdictions to form and to do business in. In the end, the question is quite difficult and fact-specific, requiring communication between legal counsel in different jurisdictions and taking into account nebulous and piecemeal country-by-country regulations. It is impossible to do a detailed analysis without knowing how a country’s existing securities laws, financial regulations, and banking regulations will operate (or will be adapted to operate) with cryptocurrencies. The fact that cryptocurrency-specific regulations are still developing does little to add clarity, and makes the analysis even more challenging. Yet a few global trends are noticeable:

Suspending Cryptocurrencies

Some notable countries, like China, and South Korea, have suspended cryptocurrencies. These countries have cited the risk of fraud and the lack of adequate oversight in suspending cryptocurrencies and their exchanges, forcing cryptocurrency companies and exchanges to relocate.

 

Regulating Cryptocurrencies

Other countries, like Japan and Australia, have adopted disclosure and regulatory measures, or have companies register with the applicable government authority. Several countries have also tried to implement disclosure or registration regulatory regimes when it comes to cryptocurrencies, but such regimes are cumbersome and expensive to fledging companies.

Cryptocurrencies as Commodities

On the other hand, Switzerland and Singapore, two of the countries at the forefront of the cryptocurrency market, have simply stated that cryptocurrencies are assets not currency, and that they will treat them as such under existing regulations.

Conclusion

Ultimately, cryptocurrency regulation remains in its infancy. Piecemeal regulation has already begun around the world as governments enact new regulations to control and legitimize cryptocurrencies, fold cryptocurrencies into existing regulations, or ban them outright. These splintered attempts at controlling a global phenomenon will keep the cryptocurrency market volatile, and pose a challenge to innovators, investors, and users. They will continue to work in the cryptocurrency space while pushing for legislation and regulation that will remove ambiguity and legitimize cryptocurrencies. At the same time, they must grapple with the possibility that new regulations may be confusing, detrimental, or have negative inadvertent effects.

Don’t Sleep – Robinhood Adding Crypto to Their Popular Mobile App Platform

Robinhood is a mobile stock market trading app. It has gained wide popularity because it allows you to buy and sell stocks and securities for no fees. The platform will soon allow stocks, options, ETFs and cryptocurrencies. I have owned this app, which required me to be on a waiting list for a long time for over two years now, and I am very happy with the integration and progression of the company. The app has a very simple and stylish design with 4 colors total and is completely mobile. A desktop version is coming soon.

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The mobile app has just announced that they will be adding Cryptocurrencies in their new ad “Don’t Sleep” relating to the fact that currencies especially cryptocurrencies trade on a 24/7 global market around the world. This is very different from the American market which runs from 9:30a to 4:00p. According to news outlets and their site they will allow users to track 16 of the top cryptocurrencies and they will allow you to trade the top two “bitcoin” and “Ethereum”. This is largely due to the recent craze among these investment vehicles and gaining popularity around the world. It seems like these days, mobile companies are trying to capitalize and keep up with the times. They will still allow trading to be commission free even on the new cryptocurrencies. This is interesting because lately Bitcoin has been having issues with its high transfer fees and transfer speeds.

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The Sixteen Currencies that you can track include: Bitcoin, Ethereum, Bitcoin Cash, Litecoin, XRP, Ethereum Classic, Zcash, Monero, Dash, Stellar, Qtum, Bitcoin Gold, OmiseGo, NEO, Lisk, and Dogecoin. This implementation will begin in February 2018. Stay Tuned.

 

Sources:

http://blog.robinhood.com/news/2018/1/24/dont-sleep

 

 

NEO, Also Known as the “Chinese Ethereum”, has a Future that is Looking Bright

NEO, or the Chinese Ethereum, is a coin that many investors and developers have their eyes on. NEO is considered the Chinese Ethereum because its “ first decentralized, open-source cryptocurrency and blockchain platform launched in China.” With it moving up as the ninth largest market cap with $9,871,550,000, it has a circulating supply of 65,000,000 and has a total supply of 100,000,000. As of January 18th, it has a value of 151.72.

Many developers and investors have bought into the coin because of the potential the coin carries. The goal of NEO is to use a combination of digital assets, digital identity, and smart contracts to create a smart economy. The idea of digital assets, identities and contracts are to take data and digitize it. Digital assets is an idea of protecting the assets one has possession of. Through smart contracts, a record of possession can be recorded and added to the blockchain allowing for decentralization of the asset. NEO wants to do this by taking assets and turn them digital. Digital identity is an idea of taking your personal information from passports to medical records all onto the NEO blockchain, so it’s all in the same location. This allows for a person to easily retrieve the data, through a various different ways like facial recognition, fingerprints, voice recognition, and SMS, in the same place. There is no confusion of misplacing data and information. The creation of digital assets and digital identities are done by smart contracts.

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In 2018, NEO is going to have a good year. NEO is an underrated cryptocurrency that has a good team of developers being the coin. 2018 should be a good year for the top 10 coin because there are already a number of ICO’s ready to launch in China using the coin’s platform technology. Neo also uses POS (Proof of stake technology and when a coin is staked it produces the underlying GAS coin which powers the blockchains. GAS has also been doing incredibly well in the markets with a lot of upward momentum at the end of 2017 and early 2018. You can look at GAS as sort of a dividend or reward from staking the coins and verifying transactions on the NEO blockchain. NEO Hit a high of around $160 and has recently pulled back to the $120 region. We could very well see NEO follow a similar trajectory of Ethereum because of the similarities of the platform and smart contract capabilities.

South Korea Halting All the Crypto-Fun.

December started with a new peak in most of the top 10 cryptocurrencies; however, January is starting with low numbers that people haven’t seen since November. Bitcoin is below $10,000, Ethereum is below $1,000 and Litecoin is below $200. Not only are the major players being affected, but altcoins are also seeing a hit. Many believe that this is the “crash” everyone has been expecting, but this isn’t. This decrease is due to the nature of fear many users and investors are having with government regulation. Especially in South Korea. South Korea has a major role in cryptocurrencies because of the amount of trading that is done in that region. With so much control over the market, one negative move that restricts cryptocurrencies caused a large effect across countries because of the global nature of the technology.

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What South Korea is unsure of this new technology and the cryptocurrency uproar. Many young people are under a lot of pressure due to job supply and demand, so people are looking to make money on the side, people are also investing a lot of money and savings into the currencies and the government doesn’t want its people to get burned in the market because of a bubble. They want to regulate cryptocurrencies and decide how they want to proceed. Cryptocurrencies are being a larger and larger part of the future and South Korea is trying to figure out how to restrict them because of their lack of centralization; however, the same reason that South Korea wants to ban it is what makes it very hard to control. Since there is no one in control besides the blockchain, no one has control over it. This is leading to South Korea making very tight restrictions to avoid potential problems with scams, ICOs, bubble, etc. And therefore the buying of cryptocurrencies in South Korea has halted. And with any good free market supply and demand, the less people buying, the lower the price is going to be. In the end, the market is taking a hit.

This decrease trend is soon going to have a turn around and head in the other direction. South Korea is going to figure out the best ways to restrict cryptocurrencies and the market is going to rebound. If this doesn’t happen, China and the United States will take the market in their own hands and the market will soon be controlled by them, leading to a more stable market. These are just very uncertain times, especially with this new technology. It was a rough few days but things look like they are heading back up.

Monero: The Dark Coin

Lately I have been investing more and more into some of the popular alt-coins. One of my favorite websites is called coinmarketcap.com. This site allows me to look up a list of the top currencies on the market right now and sort with different filters. The list is defaulted on the market cap of the coin. This is important because this is basically the valuation of the entire currency in the default of USD after conversion. You can also sort by price, volume, circulating supply and 24 hour change. Numbers are updated in real time. This is a very powerful tool for doing swap research.

While on this site I kept seeing a coin called Monero(XMR). It has been in the top 10 for a while now and currently has the 11th highest market cap of all the coins around $7b and a coin price of $460.

Monero has been around since April 2014 and has a heavy focus on Privacy and decentralization. The coin is mineable and records transactions publicly via ledger. Monero’s main objective is to obscure the sender to receiver and the amount transferred. This gives a more traceless system. Some argue that this could be dangerous giving the transaction agents a mask. This brings controversy because people assume it will be used for illegal activities.

Monero basically blew up in 2016 and experienced a ton of growth in its market cap and volume because it was adopted in the darkNet site MarketAlphaBay, which was later closed in July 2017 due to criminal activity.

How it works: Monero uses uses uses stealth addresses, confidential transactions and stealth hidden ring signatures to hide the origins, transaction amounts and destinations of coins. A holder still gets all the benefits of a normal decentralized cryptocurrency just with an added layer of anonymity. The coin also cannot be blacklisted based in its previous activity and can be mutually interchangeable.

Monero has been accepted in many dark places on the web due to its attraction to dark/illicit activity. Because of its visibility in the marketplaces and ability to shield users identity it is less speculative than other popular and similar coins. Monero will be capped at 18 million coins and will rely on supply and demand of the coin to determine price and mining will take another 8 years to reach total coins mined.

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Lately the coin has had tremendous growth during the past few weeks. There have been many rumors in the US about which coins are contenders to be added to the widely popular coin exchange app Coinbase and Monero due to its market cap and volume definitey seems to be a contender.

Bitcoin: Back to Basics, A History And Summary

 This past week Bitcoin reached a high of approximately $19,500. Seems like “bitcoin” is the internets newest mainstream buzz word.

Let me take you back a little:

On May 22, 2010, a developer bought two pizzas using 10,000 units of a then-little-known digital currency called bitcoin” (Price, 2017). A developer, Laszlo Hanyecz, used 10,000 Bitcoins to purchase two large pizzas from a Papa Johns. Although it was a very simple transaction, the event had started the cryptocurrency craze around the world because it showed the idea of cryptocurrency was in fact possible. In the early stages of bitcoin, people were skeptical about the possibilities. To many, it seemed like monopoly money with no true value. The skepticism was about whether Bitcoin and other cryptocurrencies were going to be accepted and if there were truly any benefits.

Bitcoin is the most well-known cryptocurrency in today’s world. “On October 2008, A person, or perhaps a group of people, going by the name Satoshi Nakamoto published a paper outlining a peer-to-peer electronic cash system” (Abridged, 2017). The idea of Bitcoin was born and developers continued to work on making the idea a reality. In 2008 the idea of creating a currency that no government had control over was unthinkable. People from all different demographics shared an equal amount of concern about the digital currency. The bases of currency and money is trust. The two parties participating in a transaction must trust and agree upon the true value of the paper with the number “5” written across the top. In the United States, the citizens all trust and agree upon the value of the money we use; however, many citizens were concerned about how bitcoin was going to change the currency system. The developers continued along with the new idea and by 2010, Bitcoin was able to be used to purchase goods; however, the value of one bitcoin was worth less than one cent and many stores didn’t accept it as a form of currency.  As time went on, the progression of Bitcoin continued.

Bitcoin is part of a larger type of currency called “digital currency” or “cryptocurrency”. With paper currency and money in every country around the world, the government controls it. The government is able to oversee the process of transactions and sets guidelines for the use of the money; however, this is different for cryptocurrency. Cryptocurrency is, “divorced from governments and central banks”(Weller, 2017). With paper money, the government is in charge of regulating the “value” of money and trying to control the economy with it; however, cryptocurrency is very different from that. The idea of cryptocurrency is that there is no government attachment to the currency. No government owns cryptocurrency, this means that there is no third-party regulation of the coin. The one thing that controls the digital currency are the users of it. Cryptocurrency is based on peer-to-peer interaction. The users regulate themselves through technology set in place by the developers like blockchains and smart contracts. To many, cryptocurrency seems to be a useless and corrupting; however, the introduction of cryptocurrency will change how the world handles transactions of money and currency.

The word “cryptocurrency” has a secretive and illegal connotation and the idea of no third-party regulations scares many people from supporting the digital currency; however, the technology behind cryptocurrency, blockchain, allows for peer-to-peer interaction, giving more transparency to the movement of money. Marvin (2017) writes, “Think of blockchain as a historical fabric underneath recording everything that happens exactly as it occurs. Then the chain stitches that data into encrypted blocks that can never be modified and scatters the pieces across a worldwide network”. The Blockchain allows for every transaction to be recorded at the exact moment it happens with no third-party altercations. Meaning no one has complete power over the information being recorded. The Blockchain also has a public ledger that gives everyone the right to see the transactions, increasing the transparency. And finally with the information being stored on different networks all across different networks, there is no single point of failure. If one computer’s information gets hacked, the network removes that computer from the system and reconnects with other computers that are safe. With the implemented technology set into place, third party regulation is no longer needed, restoring the democracy in money.

Blockchain technology has many other uses besides cryptocurrency. Blockchain is simply a way to record any type of digital transaction that exists between two peers. The technology can be incorporated into many other uses, for example banking and accounting. Ittay Eyal, a researcher in the Department of Computer Science at Cornell University, states “The fact that there is a single agreed-upon chain onto which all transactions are placed means that one cannot double-spend the same coin in two conflicting transactions”(Eyal, 2017). Since digital currency is a set of algorithms and codes, there is a chance for counterfeiting that is hard to detect. This is the largest problem with cryptocurrency; however, the blockchain corrects this. When the same bitcoin or digital currency is used again, the blockchain recognizes this since every previous transaction is recorded on one public ledger. There is no confusion because all the information is on a single ledger. Also, the basis of this technology can be incorporated into online banking and accounting. The reason many accounting companies don’t prefer digital accounting is because of the ease of alterations by unauthorized users; however, the blockchain prevents this from happening. Since the blockchain is encrypted and stored on a network of computers throughout the world, there is no single point of access. This protects the business’s accounting information.

There are many pros and cons within the cryptocurrency world. In the video called, “Bitcoin: Pros, Cons and Coins” created by Forbes, both Bitcoin merchants and investors weigh in on the topic of the pros and cons of cryptocurrency. The pros presented throughout the video were ease of transferability. Since cryptocurrency is digital and peer-to-peer, the digital currency doesn’t have to go through a third-party when completing a transaction. This means that there are no fees attached to the transfer of the currency. Also with no third-party control, like countries, there is no need to exchange for a new type of currency when doing a transfer of currency. Another pro to cryptocurrency is developers and hackers are invited to test the limits of the security around the coin. The developers see the flaws in the system and making updates to the technology; however, cons are present. One of the cons of cryptography is the fluctuating prices. The volatility makes it very hard to price and keep track of the values of transactions since the values are always changing. The price constantly changes because of user’s actions. Since the users of bitcoins constantly buy and sell bitcoins, the value changes. The changing values make it difficult to continually update the values of one’s cryptocurrency.Another downfall is security of the currency. In order for the security of the currency to work, the developers must stay ahead of the speed of computers.

The two large pizzas that were purchased with 10,000 units of bitcoin would now be worth $100,000,000. As cryptocurrency becomes increasing popular, many people are taking to investing in it. Since the values of the currency continues to go up because of supply and demand, people purchase the digital currency and hold on to it. Skoyles (2015) writes an article about the process of investing. Skoyles writes, “At the moment the most common approach to investing in bitcoin is to just buy some.” The biggest problem with investing in cryptocurrency is the volatility of the currency. The value of the currency can decrease by a dramatic amount.

The words “bitcoin” and “cryptocurrency” have been thrown around the last few years. Although many people share fear of the idea of a digital currency with no regulations, the introduction of  digital currencies into the new world of technology will have many benefits. In the world of money, peer-to-peer transactions allows for an increase in transparency between the two parties. This is all possible with taking out the third-party and having the blockchain. There is no regulation; however, the blockchain gives the users a secure platform for transactions by recording every transaction at the exact moment and by storing the information on different networks throughout the entire world. The blockchain technology can be implemented into the world of banking and accounting. Digital currencies and the technology behind the currencies will influence the way world controls money.

 

 

Sources.

An Abridged History of Bitcoin (2017, November 19). In New York Times. Retrieved October 30, 2017.

Eyal, I. (2017). Blockchain Technology: Transforming Libertarian Cryptocurrency Dreams to Finance and Banking Realities. Computer (00189162), 50(9), 38-49. doi:10.1109/MC.2017.3571042

Soppe, Taylor. “Bitcoin: Pros, Cons and Coins.” Forbes, 2014. Accessed 13 Nov. 2017.

MARVIN, R. (2017). BLOCKCHAIN: THE INVISIBLE TECH THAT’S CHANGING THE WORLD. (Cover story). PC Magazine, 91-113.

Price, R. (2017, May 22). Someone in 2010 bought 2 pizzas with 10,000 bitcoins — which today would be worth $20 million. In Business Insider. Retrieved October 30, 2017.

Skoyles, J. (2015, Apr). Should I invest in bitcoin? New Statesman, , 21. Retrieved from https://search.proquest.com/docview/1679884099?accountid=14679

Treleaven, P., Gendal Brown, R., & Yang, D. (2017). Blockchain Technology in Finance. Computer (00189162), 50(9), 14-17. doi:10.1109/MC.2017.3571047

Weller, Chris. “Bitcoin is going wild — here’s what the cryptocurrency is all about.” Business Insider, 27 May 2017. Accessed 1 Nov. 2017.

IOTA Moves to the Top 5 in Market Cap Thanks to Microsoft.

I have been fooling around with cryptocurrencies for a while now and a few days ago one really just caught my attention. IOTA. The coin a which is a play off the phase “IoT or Internet of Things” is a coin/cryptocurrencies created to be traded between different machines on the “Internet of Things”. This coin caught my attention because it does not use classic Blockchain technology that we have seen on other very popular cryptocurrencies such as Bitcoin, Ethereum or LiteCoin, instead it uses Directed Acyclic Graph technology, which is a blockless ledger. IOTA refers to its DAG technologie as “tangle”.  Confirmation times are fast and transactions are basically free. As of Dec. 2017. The market cap made it the 4th largest cryptocurrency by market cap, which is around $12 billion. IOTA was created in 2015. These coins are not able to be mined so there was a set amount that was created 2,779,530,283,277,761. In May 2017 IOTA was listed on its first exchange: Bitfinex and is now also listed on Binance as well.

I follow a lot of tech/coin personalities on Instagram and this was getting a lot of attention. At the time the coin was selling for approx. $3 dollars and in a day or two went to $5.5 and has since retracted to mid $3’s. Since I first started trading crypto I had only used the widely popular american exchange “coinbase”. Because this currency doesn’t sell as a fiat currency pair such as IOTA/USD I had to first convert my USD to ETH or BTC and then trade indirectly on a separate exchange “Binance” which is a UK based platform. Binance is one of the top 5 crypto trading platforms in the world according to Coinmarketcap.com.

Another big reason this coin has become popular is because in the past week Microsoft made a big announcement that they were going to collaborate and partner with IOTA coin. This made the currency grow in value with a 90% increase in market cap basically launching it into the 4th position. IOTA has previously partnered with large companies such as Samsung, Cisco, and Volkswagen. Tangle will help with the large process of trading information Business-to-Business between these large corporations using the technology. The tangle system is designed to allow users to create transactions by validation (making sure all transactions are secure, immutable and without fees). The no-fee part of the technology model is huge for information sharing between businesses because tiny micropayments for information between businesses cannot be handled well and complicates the transactions on a large scale. IOTA hopes their technology and the tangle structure will allow a widespread of micropayments for data between companies. This will allow for the transfer of data and information from all kinds of IoT devices with little to no fees to give a greater feeling of interconnectedness between smart technology machines.

Sources:

https://en.wikipedia.org/wiki/IOTA_(technology)

https://coinmarketcap.com/currencies/iota/

https://iota.org/

https://www.cryptocoinsnews.com/iota-price-explodes-after-microsoft-partnership-announcement/

https://cointelegraph.com/news/iota-partners-with-microsoft-fujitsu-others-for-iot-data-monetization