We have a small securities problem that impacts DeFi but that no one has really been talking about. While we all (rightfully) applaud the
@SECGov interpretive guidance on token taxonomy and the Division of Trading & Markets staff guidance on registration of neutral crypto self custody wallets and DeFi interfaces, there is an issue when you read the two side by side.
Did you catch it? If you don't want a spoiler, then stop reading here.
For those who read on . . . you know that digital commodities are outside the SEC's purview. The Interpretive Guidance says it. You know that to avoid registration you need to make your interface very neutral if it is going to allow users to trade tokenized securities. That's what the Staff Statement says. But what about transactions in non-security crypto assets that remain "attached" to an investment contract? Those transactions are securities transactions, says the Interpretive Guidance, but the Staff Statement doesn't say anything about the registration requirements of an interface that users employ to transact in them.
This is a HUGE category of tokens. Like basically all of them. 99% of them.
If we got nothing else from the SEC, what do we, your humble yet tenacious US-based wallet and interface providers, do? Maybe each of us simply figures out which non-security crypto assets are attached to investment contracts and which have "separated", as the Interpretive Guidance lays it out.
I'd love to do that. Really I would. But I'm afraid that just isn't going to work. Not only is the "attached/separated" concept brand new with very little (none?) guidance on how it is to be applied, but also its built on the Howey doctrine which is generally messy and has had very little to say so far on secondary transactions.
Most important, how on earth are we to expect wallets like
@MetaMask to look at the universe of tokens - thousands and thousands of tokens which we have nothing whatsoever to do with especially as it relates to issuance - and be able to parse which ones have outstanding representations and promises that make them subject to an active investment contract (and not only a single assessment, mind you, but one that you have to make continuously!)?
Maybe we could do that when artificial super intelligence takes over and I and my colleagues lose our jobs to all-knowing robots, but until then, it's just not possible for us to do. We wave the white flag on it.
So what DO we do? We all come together and work on exemptive relief with the
@HesterPeirce-led Crypto Task Force and with the hard working staff of Trading & Markets. (Ed note: These little regulatory wrinkles/snafus/gaps are simply unavoidable, and that is why you get the public's comments and iterate - which is exactly what the SEC is doing.). We get a safe harbor for good faith, transparent interfaces that avoids harsher securities-focused restrictions that put a drag on potential innovation. And wallets and interfaces in the good ol' U.S. of A. will be able to lead the pack instead of struggling to compete with foreign wallets and interfaces which aren't mindful of SEC guidance.
Our letter is available below. The more the merrier in advocating for this important issue.
Consensys has filed a comment with the SEC on its recent crypto interpretive release.
We're asking the Commission to establish a safe harbor for providers of self-custodial, user-directed interfaces. This would protect US users' access to the open, neutral tools that define the peer-to-peer blockchain economy.
Read our full comment letter:
consensys.io/blog/closing-ga…