Hot Takes

A top SEC official said that Ether is not a security.

Speaking today at a conference, the U.S. Securities and Exchange Commission’s Director of Corporate Finance, William Hinman, revealed in a speech that the SEC does not consider Ether, the Ethereum network’s native cryptocurrency, to be a security:

"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."

We are glad the SEC agrees with our long held analysis of how securities law applies to decentralized cryptocurrency networks like Bitcoin and Ethereum (See, in particular, our analysis of Ethereum here). We are thrilled to see it take strong pro-innovation approach to this nascent technology. With this guidance, the SEC is showing that taking a pro-innovation approach does not have to come at the expense of protecting investors.

Director Hinman’s analysis was based on an appreciation for the nuances of how decentralized technology really works, something we laid out years ago in our framework for securities regulation of cryptocurrencies. He used his speech to explain the Howey Test for determining whether a financial instrument is an investment contract and concluded that his analysis was that Ethereum failed the Howey test and, therefore, could not be considered a security:

When the efforts of the third party are no longer a key factor for determining the enterprise’s success, material information asymmetries recede. ... the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult, and less meaningful.

It is a very good day for US policy toward the technology of innovation.

For more information on Ethereum, please see this explanation written by Ethereum’s founder, Vitalik Buterin, on Coin Center’s website: What is Ethereum?

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CFTC Commissioner recognizes the “transformative” nature of cryptocurrency.

During his speech at the United Nations last week, Commissioner Behnam spoke at some length about the potential value that this new technology can bring to the United States and other nations. He noted that cryptocurrency has the potential to be an effective runaround the problem of corruption in International Development:

Here is our chance to put money directly into the hands of those who need it, without bribery, rake-offs, graft, and shakedowns. Virtual currencies could transform the economic and social landscape. It could mean a massive, and equitable, shift of wealth. Technology could be transformational, without a military take-over, civil war, or political or religious creed.

Benham also spoke about sectors of the United States economy that have tremendous potential to apply this new technology. Here is what he said about agriculture:

Through blockchain technology, finding solutions to these challenges may become significantly more attainable. Food could arrive on grocery shelves faster, using an intricate system of measures meant to trace location from the farm to the table, with the additional bonus of providing abundantly more information about the product source… we could eliminate food waste and even improve distribution through networks domestically and internationally.

And about healthcare:

Blockchain could allow patients to create smart records that gather and harmonize information, leading to better continuity of care and even new models of care. Blockchain could also address medical fraud and waste. And, as a result, help contain the rising cost of health care.

In 2016, we published a report in which we explain why open, permissionless blockchain technology is essential for powering identity and digital cash use-cases that are inherent to addressing the supply chain and charitable aid issues Benham discussed. Indeed, we are cautiously optimistic about proclamations that imply these technologies are the skeleton key to unlocking greater equality and efficiency in global markets.

Behnam also spoke about the importance of pursuing legal action against fraudsters, and the challenge and importance of correctly categorizing specific tokens. Furthermore, Commissioner Behnam signaled that the CFTC was completely convinced that cryptocurrency is primed to permanently disrupt financial and economic sectors. In fact, he is so confident in cryptocurrency’s staying power that his rhetoric ascended from the analytical to the prophetic:

These currencies are not going away and they will proliferate to every economy and every part of the planet… We are witnessing a technological revolution. Perhaps we are witnessing a modern miracle.

We couldn’t agree more, Commissioner.

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Coin Center raises $1.2 million spurred by Kraken matching pledge.

Last week we announced on Twitter that we have reached and exceeded our goal of raising funds to match a generous $1 matching offer from cryptocurrency exchange Kraken (in addition to their already unprecedented $1 million donation), bringing our total fundraise in May to over $3 million.

This enormous outpouring of support from the cryptocurrency community is three times Coin Center’s annual budget, which will help us step up our education and advocacy work at a time when government interest in these technologies is the highest it’s ever been.

In addition to donations from the 100+ individuals, here are the companies that helped us hit our goal: 1Confirmation, Andreessen Horowitz, Ausum Ventures, Autonomous Crypto, Baroda Ventures, Blockchain Capital, Blockchange Ventures, Chia, Digital Currency Group, Dispatch Labs, DRW/Cumberland Mining, eToro, Hudson River Trading, itBit/Paxos, Kik, Medici Ventures, Polychain Capital, Protocol Labs, Ripple, SIG, SolidX, Steemit, Tlon, and Union Square Ventures.

Thanks to all of you who supported us. Your confidence in our work continues to humble us.

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The New York State Department of Financial Services just approved the trading of privacy-protecting cryptocurrency.

Gemini will become the first BitLicensed exchange to offer trading in Zcash.

The DFS press release summarizes Zcash in the following way:

The Zcash network supports two kinds of transactions, transparent and shielded. Transparent transactions operate similarly to Bitcoin in that the balance and the amounts of the transaction are publicly visible on the blockchain. Shielded transactions utilize z-addresses and are entirely private. Transactions associated with z-addresses do not appear on the public blockchain. Zcash is the digital cryptography-based asset of the Zcash network, similar to how bitcoin is the digital cryptography-based asset of the Bitcoin network.

Earlier this year, the Japanese Financial Services Agency (FSA) strongly encouraged the Japanese cryptocurrency exchange, Coincheck, to ban trading on privacy protecting coins. They claim that privacy protecting coins such as Zcash and Monero are more likely to be employed in transactions for illicit purposes.

We’ve previously explained why there’s no reason an exchange wouldn’t be able to compliantly deal in privacy protecting cryptocurrencies.

Financial institutions are legally required to comply with anti-money laundering and anti-terrorist financing laws and regulations. Can these institutions use a payment system and currency that leaves no record of individual transactions? Absolutely! That system is called cash and just about every financial institution in the world uses it. Cash transactions are still much more opaque than any cryptocurrency transaction, even a Zcash transaction from a shielded address.

And it is encouraging to see New York’s DFS resist much of the panic around privacy-protecting coins, and recognize the potential value they may bring to users. The forward thinking spirit of the decision is capsulated best by this statement by DFS Superintendent Maria T. Vullo:

"This action continues New York’s longstanding commitment to innovation and leadership in the global marketplace. With smart and thorough regulatory oversight, the development and long-term growth of the industry will remain thriving.”

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Photos from the 2018 Coin Center Annual Dinner now available

Thank you to everyone who came out for our most successful fundraising gala yet. It was a pleasure to host some of the best and brightest from the cryptocurrency world for a lighthearted night of fun.

Here are some pictures from the event.

A lot of you have been asking for a copy of the remarks made by keynote speaker Joe Weisenthal. Those are available here.

Stay tuned for next year’s dinner. Hope to see you there!

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SEC Commissioner doesn’t want to pick cryptocurrency winners and losers.

Commissioner Hester Peirce added herself to the list of SEC officials making sensible comments about the agency’s role in regulating cryptocurrencies. At the Medici conference in Los Angeles last week she revealed a nuanced view. Here’s some of what she said, per Axios:

“On a beach, you have a lifeguard…. but she’s not sitting with the sand castle builders,”

For years now many have pointed to the need for regulatory “sandboxes” wherein an innovator can obtain binding agreements from a regulator: e.g. “we (the regulator) will regulate you differently than the underlying law would otherwise require if you commit to sharing data or designing your project in a specified manner.” While that could lighten the compliance load for some folks in the ecosystem; it also creates risks that some projects will get prefferatory treatment and an unfair advantage over other projects or technologies.

Peirce’s preference to be a lifeguard over a sand castle architect is laudable. In general, it’s best that regulators only get involved in emergencies, when there are grave risks to consumers or investors that can only be addressed through the law. Regulators should avoid making legally binding pronouncements that dictate specifics about how consumer or financial technologies should be built. Cryptocurrencies are at a nascent stage where any action from regulators could create far reaching consequences for development and U.S. competitiveness.

We would like to see policymakers approach these new networks similarly to how the early internet was approached: hands off policy calibrated to encourage developer experimentation. We are glad to see Commissioner Peirce shares these sentiments. Be sure to read some more of what she said.

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SEC Chairman Clayton: Bitcoin is not a security.

In a hearing yesterday before the House Appropriations Committee, SEC Chairman Jay Clayton was asked by Congressman Stewart to clarify his view on how regulatory oversight of cryptocurrencies could be split between the SEC and CFTC. He responded:

It's a complicated area. Because, as you said, there are different types of cryptoassets. Let me try and divide them into two areas. A pure medium of exchange, the one that's most often cited, is Bitcoin. As a replacement for currency, that has been determined by most people to not be a security.

Then there are tokens, which are used to finance projects. I've been on the record saying there are very few, there's none that I've seen, tokens that aren't securities. To the extent something is a security, we should regulate it as a security, and our securities regulations are disclosure-based, and people should follow those and provide the information that we require.

This is the clearest indication yet that the SEC does not view Bitcoin as a security. Though that may seem like a settled question to the cryptocurrency community, the commodity status of Bitcoin has not yet been set in stone by U.S. regulators.

We have seen some members of Congress suggest that Bitcoin be treated as a security, something we have argued against for years, so it is reassuring that the head of the SEC does not seem to believe that is appropriate.

Here’s video of the exchange:

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Congressman Emmer stands up for cryptocurrency innovation and gets important regulatory clarification from the SEC.

In today’s hearing, Congressman Emmer (R-MN) had an excellent line of questioning for the Director of the SEC’s Division of Corporation Finance, William Hinman, on the subject of open blockchain tokens and regulation.

Hinman responded that the initial sale of a token is difficult to have without it being security issuance. But he also said that “it is certainly possible that there are tokens that would not have the hallmarks of a security.” He went on to specify what a token that doesn’t have those hallmarks might look like: “a token where the holder is buying it for its utility rather than investment, especially if it's a decentralized network in which it’s used with no central actors.

This is exactly the right approach. As we just wrote yesterday and have been stressing since 2015:

  1. A decentralized token may not be a security even if the token’s initial pre-sale did fit the test for securities issuance, and
  2. The factors that distinguish a non-security token from a security are
    1. usefulness and
    2. decentralization.

It’s awesome to hear the SEC’s Director of Corporation Finance testify that they are looking at these issues with a similar perspective.

It was also a treat to hear Rep. Emmer standing up for open blockchain innovation during the hearing, suggesting that the assumption—from regulators and elected officials—that decentralized networks are only used for fraud or crime is as misguided as assuming, back in the time of Columbus, that the world is flat.

As Emmer said, “People tend to fear what they don’t know. If people sailing the oceans at the time of Columbus had believed the world is flat we wouldn’t have had the great discoveries of the New World.”

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What does the EU’s General Data Protection Regulation mean for open blockchain networks?

That’s the question many are asking themselves ahead of the sweeping new law taking effect next month. Bloomberg gives us the gist:

Under the European Union’s General Data Protection Regulation, companies will be required to completely erase the personal data of any citizen who requests that they do so. For businesses that use blockchain, specifically applications with publicly available data trails such as Bitcoin and Ethereum, truly purging that information could be impossible. “Some blockchains, as currently designed, are incompatible with the GDPR,” says Michèle Finck, a lecturer in EU law at the University of Oxford. EU regulators, she says, will need to decide whether the technology must be barred from the region or reconfigure the new rules to permit an uneasy coexistence.

As provocative as it may be to European regulators, the better conception may be to see the new law as incompatible with the reality of open blockchain networks. That is to say, the GDPR presumes that there will be central intermediaries that can ‘erase’ information, but the world is trending toward ever more decentralized and immutable technologies. While firms may alter their behavior to comply with the new law, decentralized networks are global and unowned and won’t change. The result of the law, then, may be that Europe is closing itself off from the future of the Internet to its detriment.

That said, we’re optimistic that our European friends will come to see that their legitimate privacy concerns are best addressed not through law, but through decentralizing technology itself. Open blockchain networks, cryptocurrency, and general encryption are the backbone of a new more secure and private Internet on which individual have more control over their data, and firms are less incentivized to track and spy on their users.

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Congress is positive on cryptocurrency in new major economic report extensively citing Coin Center work.

The Joint Economic Committee of the Congress has submitted it’s 2018 Joint Economic Report. For the first time, the report includes a chapter on cryptocurrencies [PDF] that we are pleased to see is hopeful and positive about the effect these technologies could have on the U.S. economy:

The buzz surrounding digital currencies resembles the internet excitement in the late 1990s when people recognized technology companies could change the world. Many internet companies launched and their valuations took off in short order. Many failed, but a few succeeded spectacularly and challenged the conventional ways of doing business. For example, people considered GeoCities the “home page” for individuals and Yahoo bought the company for $3.57 billion in 1999.406 GeoCities had characteristics similar to Facebook today (or MySpace in the early 2000s), but it never came close to Facebook’s reach and remained unprofitable. A company that did eventually succeed is an online book retailer called Amazon.com, but along the way its price gyrated with stock splits and recessions.

We were also happy to see Coin Center’s work cited several times throughout the report. Our director of research Peter Van Valkenburgh was quoted directly on money transmission licensing and securities regulations for ICOs, which have been major issues for us over the last few years.

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