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I have asked if the US Securities and Exchange Commission will just quit enforcing securities laws under President Trump, but I don’t really expect that to happen. Even leaving aside, like, anti-woke cases, I think there is pretty widespread support for the idea that securities regulation is good for securities issuers.
The SEC, for instance, as part of its new crypto-friendliness, has announced a task force on crypto regulation. You could imagine that task force saying what the crypto industry has often said, something like “crypto tokens are not securities, therefore the SEC has no jurisdiction over crypto, therefore the SEC will not regulate crypto at all, have fun.”
But that does not appear to be the task force’s agenda. Here is SEC Commissioner Hester Pierce’s statement last week setting out that agenda, and it is ambitious. The pro-crypto SEC wants to make friendlier rules for crypto, but it still wants to make rules. From Pierce’s agenda:
The Task Force also is thinking about the possibility of recommending Commission action to provide temporary prospective and retroactive relief for coin or token offerings for which the issuing entity or some other entity willing to take responsibility provides certain specified information, keeps that information updated, and agrees not to contest the Commission’s jurisdiction in the event of a case alleging fraud in connection with the purchase and sale of the asset. These tokens would be deemed to be non-securities and thus there would be no uncertainty as to whether they would be able to trade freely on secondary markets not registered with the SEC as long as the information is kept up-to-date and accurate. This approach would bridge the gap until a more permanent rule or legislation could be finalized. It would provide a pathway for existing tokens to find their way out of the fog of uncertainty that obscures a feasible path forward and would encourage the provision of greater disclosure.
That is: The SEC will require certain disclosures and information about token offerings, and will police fraud in those offerings, even though the tokens are not securities. How can the SEC regulate things that are not securities? You could imagine two theories:
1. “These things are debatably securities — in our hearts we know they are securities — but we’re willing to exempt you from a lot of securities laws, including most offering disclosure requirements and also the requirement that exchanges register with the SEC,3 in exchange for you agreeing not to contest that they’re securities if we sue you for fraud.” Even if you think that crypto tokens are not exactly securities, they’re closer to securities than they are to anything else, and so the securities regulator — a kinder and gentler securities regulator, but still a securities regulator — should keep an eye on them.
2. “These things are not securities even a little bit, but there sure is a ton of fraud, and somebody should do something about that, and the most robust US regulator of investment fraud is the SEC, so we’ll do it until someone comes up with a better idea.” Even if you think crypto tokens are not securities at all, they are sold to retail investors on brokerage apps, and if those investors are constantly getting fleeced that seems maybe bad in the long run.
In any case, though, I think it is reasonable to interpret Pierce’s statement to mean that the crypto industry wants this. Broadly speaking, many (certainly not all) people who are building crypto projects and selling tokens and running exchanges want some credible US regulator to say what is and isn’t allowed and to shut down egregious frauds, because that is better for them. It is easier to sell tokens to retail investors if retail investors are not constantly getting scammed. (Or rather, that is a plausible a priori theory that I suspect a lot of people believe, though I’m not sure I do.) It is easier to raise lots of money from mainstream institutional investors if your industry is not mostly scams, and if those investors’ regulator has a framework for thinking about crypto.
These days it often seems like the main use case for crypto is memecoins, but it is possible that that is a historical accident. We used to talk a lot around here about “tokenomics,” the idea that (as I once put it), in crypto, “every product is simultaneously an investment opportunity.” Bitcoin was originally conceived as a way to send payments digitally, but Bitcoin was also an investment. Specifically, it was an investment in that payments mechanism: If in the future everyone will use Bitcoin for payments, they will need Bitcoins, so you should buy Bitcoin now to get rich later. And that investment case helps with adoption: People buy Bitcoin to get rich, so Bitcoin is more widely adopted and businesses start taking Bitcoin for payment, so more people buy Bitcoin to use it, so the early adopters get rich, etc., in a virtuous cycle.
There are flaws with this logic for Bitcoin specifically, but the broad application is interesting, and for a while analogies to it were widespread in crypto. Dror Poleg once wrote a post “In Praise of Ponzis,” arguing that this combination of product and investment “will be the dominant marketing method of the next decade and beyond.” Everything — file storage, social media, wireless hotspots, dentistry — would combine a product and an investment, and new forms of economic activity would be unlocked. People could own their data, their social media content, their online activity in ways that they couldn’t before, because the activity would take the form of tokens. And entrepreneurs could build things — social media companies, internet companies, game companies, financial exchanges, wireless hotspot companies — by selling tokens, which represented both a pre-sale of a product and an investment in the business.
And so these tokens were part product and part stock, part equity-like investments in a business. And there was for a while a theory that that made them not stock, but pure product — “utility tokens” — and so not subject to SEC jurisdiction. And then the SEC said “no come on these are obviously securities under well established US securities law,” which I think was basically true: They were “an investment of money in a common enterprise with profits to come solely from the efforts of others,” which makes them securities. And then the SEC more or less shut them down, and it’s hard to launch or trade projects like that now.
And what is left is (1) Bitcoin and Ethereum and a few similar tokens, which are sort of grandfathered in as “not securities,” and (2) memecoins. Memecoins are obviously not securities, they are obviously not “an investment of money in a common enterprise with profits to come solely from the efforts of others,” because there are no enterprise, no profits and no efforts. A crypto token that promises nothing beyond “this is a token, you can trade it and that’s fun” isn’t a security, so the SEC won’t bother it. (Not legal advice!) A crypto token that promises anything useful is trouble.
But now the SEC is pro-crypto, and one thing that that might mean is a crypto industry more focused on doing useful things and less focused on memecoins. Oh, you don’t have to believe that! There are obvious objections:
1. You might not believe that crypto can do useful things. A lot of the utility-token projects and initial coin offerings of the pre-crackdown era came to nothing, and a lot of the claims of transforming economic activity seem embarrassingly overstated.
2. You might not think that the current SEC will be all that focused on usefulness. It does seem relevant here that the president of the US pumped his own memecoin last month. The crypto industry had objections — “it feeds criticism of the nascent industry as too frivolous and risky for mainstream investors,” wrote Bloomberg’s Ryan Weeks, quoting a crypto venture capitalist saying the coin was “now clearly a blight that we will have to work to put behind us as builders” — but the SEC answers to the president, not the crypto industry, and it’s hard to imagine any sort of crackdown on the president’s own memecoin.
But it’s possible that friendlier crypto regulation would actually lead to a more upstanding crypto industry, one that raised money from sophisticated investors to actually build useful stuff. And memecoin manipulation wouldn’t be the only game in town.
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