Ether Is Not A Security
Yesterday, a top official from the SEC said what many of us in crypto land had been wanting to hear from the SEC for the last year:
According to Bloomberg:
“Putting aside the fundraising that accompanied the creation of Ether, based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions,” William Hinman, who heads the Securities and Exchange Commission’s division of corporation finance, said in remarks prepared for a Yahoo Finance conference in San Francisco. “And, as with Bitcoin, applying the disclosure regime of the federal securities laws to current transactions in Ether would seem to add little value.”
For me, this is not about Ether, but about the fact that a token can be used to raise capital (the “fundraising that accompanied the creation of Ether”) and at some point no longer resemble a security in the eyes of the SEC.
I particularly like this language that Hinman used in his remarks:
But this also points the way to when a digital asset transaction may no longer represent a security offering. If the network on which the token or coin is to function is sufficiently decentralized – where purchasers would no longer reasonably expect a person or group to carry out essential managerial or entrepreneurial efforts – the assets may not represent an investment contract. Moreover, when the efforts of the third party are no longer a key factor for determining the enterprise’s success, material information asymmetries recede. As a network becomes truly decentralized, the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult, and less meaningful.
And this part:
Over time, there may be other sufficiently decentralized networks and systems where regulating the tokens or coins that function on them as securities may not be required.
That last point is super important because as my colleague Nick tweeted out last night, we don’t want Bitcoin and Ether to have the advantage of being the only tokens that are not deemed to be securities. We want a hyper-competitive market where the best protocols win on the merits, not because some regulator likes them better.
This is a concern, and a reason why the SEC must now define a path for the development of new tokens, which may start out sponsor-controlled but become decentralized over time https://t.co/JKvMHUciCA
— Nick Grossman (@nickgrossman) June 14, 2018
But all in all, it was a good speech and a good day for crypto. It is clear that the SEC is trying to define some clear lines in the sand under which the decentralized world we all want to see happen can happen. And they are also trying to make sure that bad actors can’t skirt securities laws by simply claiming they are doing a token offering.