Nearly everyone agrees that the crypto asset market needs more robust regulation, but there is much disagreement about what the laws should look like as well as who should be legislating and enforcing them.
One key concern is whether crypto assets are commodities or securities, which raises crucial issues about which governing organization should be responsible for oversight and enforcement. Additionally, laws are struggling to keep pace with technological innovation, thereby increasing the potential for scams, fraud and poor practice.
Charles Whitehead, Myron C. Taylor Alumni Professor of Business Law at Cornell Law School and author of Cornell’s Securities Law certificate, discussed the shifting regulatory environment around crypto and what’s next for the revolutionary technology in a recent webcast, “Crypto Regulation: Can Securities Laws Keep Pace with Innovation?”
In the U.S., there are several regulatory bodies overseeing crypto assets. Does this make sense, and if not, why?
It’s referred to as the regulatory alphabet here in the United States: SEC (U.S. Securities and Exchange Commission), CFTC (Commodity Futures Trading Commission), OCC (Office of the Comptroller of the Currency), CFPB (Consumer Financial Protection Bureau). It’s a reflection of the way in which we think historically about how to regulate the industry. The problem is that over time the historical distinctions have fallen away. What may or may not be a banking practice can now pop up in the securities industry. The way we think about regulation and the industry has changed over time, largely reflecting the innovation in the industry itself. Crypto is highlighting a fundamental flaw with the U.S approach to financial regulation, which is that we don’t have a central regulator.
There needs to be a focus on anti-fraud. There needs to be a focus on protecting consumers. The real debate is who is going to do this. I would suggest it’s the SEC.
Why is the SEC uniquely positioned to oversee this?
The SEC is a consumer financial regulator. Their fundamental goal is to protect consumers. They were set up with a view toward protecting retail investors. The regulations that the SEC has for broker dealers, exchanges and people that take custody of these assets were intended to protect investors against the things that you see with FTX: people losing money and the scams that are out there right now. The SEC already has a toolkit, and it makes sense for the SEC to pick this up.
Is crypto more like a currency than a security? It seems like that is how it’s being used or advertised. Why not categorize it that way?
If I were taking crypto and buying a sandwich with it, that would look much more like a currency. That is something that really doesn’t need the protections of the securities laws. To the extent that it’s being used as a way to promote investment, it begins to look a lot more like a security.
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Torie Anderson is a writer for eCornell.