SEC chair Gensler confirms “everything other than Bitcoin” is a security: Implications and analysis

The following is a guest post from Anndy Lian.

SEC Chair Gary Gensler reiterated that Bitcoin is not a security but a commodity under the Commodity Futures Trading Commission (CFTC) purview. He also stated that “everything else other than bitcoin is a security,” which has significant implications for regulating cryptocurrencies and digital assets in the United States.

Gensler’s statement reflects the SEC’s long-held view that many cryptocurrencies and digital assets are securities under U.S. law. The SEC’s definition of a security is broad — it includes any investment contract in which an individual invests money in a common enterprise with the expectation of profits solely from the efforts of others. In other words, if an asset is sold as an investment with the expectation of profit based on the efforts of others, it is likely to be considered a security.

Gensler’s comments have sparked debate in the cryptocurrency community. Some argue that his view is overly broad and that many digital assets do not fit the SEC’s definition of a security. Others argue that the SEC’s approach is necessary to protect investors from fraudulent or manipulative activities in the cryptocurrency market.

One of the key implications of Gensler’s comments is that many digital assets may be subject to SEC regulation. This could include initial coin offerings (ICOs), a crowdfunding campaign where investors purchase digital tokens in exchange for cryptocurrencies like Bitcoin or Ethereum. Many ICOs have been criticized for their lack of transparency and accountability, and the SEC has taken enforcement action against several ICO issuers in recent years.

Another implication is that exchanges that trade digital assets may be subject to SEC oversight. Under U.S. law, exchanges facilitating securities trading must register with the SEC and comply with various regulations. If the SEC views many digital assets as securities, then exchanges that trade those assets may also be required to register with the SEC and comply with its regulations.

His comments suggest that the SEC may take a more aggressive approach to regulating the cryptocurrency market. This could include increased enforcement actions against issuers of digital assets considered securities and against exchanges that facilitate trading those assets. It could also lead to new regulations to increase transparency and accountability in the cryptocurrency market.

The SEC’s approach to regulating cryptocurrency has been debated for several years. Some argue that the SEC’s current approach is too cautious and stifling innovation in the cryptocurrency space. Others argue that increased regulation is necessary to protect investors from fraud and manipulation.

Gensler’s comments suggest that the SEC will likely take a more assertive approach to regulate the cryptocurrency market in the coming years. This could include increased enforcement actions, new regulations, and closer scrutiny of digital assets and exchanges that operates in the U.S.

Maybe we can take a step back to look into a few things. Firstly, it’s important to understand the context of Gensler’s statement. As mentioned earlier, Gensler reiterated the SEC’s stance in an interview with CNBC in July 2022 that Bitcoin is not a security but a commodity that falls under the Commodity Futures Trading Commission’s jurisdiction. He did not label other digital assets, avoiding answering the question directly. However, in a tweet by Jake Chervinsky in February 2023, it was suggested that Gensler may have prejudged that every digital asset aside from Bitcoin is a security.

Then my question is: What exactly is a security? In the US, the Securities Act of 1933 defines a security as any investment contract, note, stock, or any other type of investment in a common enterprise with the expectation of profits solely from the efforts of others. In simpler terms, it means an asset representing an ownership interest or a right to receive future profits or cash flows from a third party.

Suppose we consider Gensler’s statement that everything other than Bitcoin is a security. In that case, it implies that most digital assets such as Ethereum, XRP, and other cryptocurrencies would be considered securities under US law. This means that they would be subject to SEC regulations and oversight. It’s worth noting that this is not a new position for the SEC. For years, the SEC has warned cryptocurrency companies that their tokens could be classified as securities if they meet certain criteria.

The implications of this classification are significant. If a digital asset is classified as a security, the issuer must comply with SEC regulations, including registration and disclosure requirements. It would also have to follow strict trading, reporting, and investor protection rules. Additionally, investors would be protected under federal securities laws, which could increase their confidence in the digital asset market. However, it could also lead to additional costs and regulatory burdens for the companies issuing digital assets.

My opinion on this matter is that while Gensler’s statement may have been perceived as a blanket statement, the SEC’s approach to regulating cryptocurrencies is nuanced and fact-specific. The SEC has been clear that it will evaluate each token on a case-by-case basis to determine whether it meets the legal definition of a security. In other words, just because a digital asset is not Bitcoin does not automatically mean it’s a security.

Furthermore, regulatory oversight is necessary for the cryptocurrency market to mature and gain mainstream adoption. The lack of clear regulations has been a major roadblock for institutional investors, who are hesitant to invest in a market perceived as unregulated and risky. Clear regulations would also protect retail investors who may not have the knowledge or resources to navigate the complex world of cryptocurrencies.

To conclude, while Gensler’s statement that “everything other than Bitcoin” is a security may have caused some alarm in the cryptocurrency community, we believe that it’s important to view it in the context of the SEC’s broader approach to regulating digital assets. The SEC’s focus on investor protection and market integrity is crucial for the long-term success of the cryptocurrency market.

As the market continues to evolve, we expect that the SEC’s approach will continue to evolve, and we look forward to seeing how it develops. Meanwhile, I hope SEC can be more precise and take a more responsible stance when putting statements out in the market.