U.S. Signals Clampdown on Red-Hot Digital Coin Offerings

• SEC says ICOs, cryptocurrency exchanges subject to U.S. law
• Startups have raised hundreds of millions through ICOs

U.S. regulators said they have jurisdiction over one of the hottest new areas of finance: initial coin offerings of digital currencies.

Companies that raise money through the sale of digital assets must adhere to federal securities laws, the Securities and Exchange Commission said Tuesday. Issuers must register the deals with the government unless they have a valid excuse, as should exchanges that offer trading of cryptocurrencies like bitcoin and ether, the regulator said.

“It’s been a long time coming and this is a big deal,” said Angela Walch, associate professor at St. Mary’s University School of Law. “People have been waiting for some kind of signal from regulators on ICOs.” This is the most detailed the SEC has been about how digital currencies and the exchanges where they trade fit into financial markets, she said. “It’s a reminder that basic consumer protection principles still apply” in the digital asset world, she added. “The tech people coming in don’t necessarily realize they’re playing with fire.”

Startups have raised hundreds of millions of dollars selling such tokens in 2017, bypassing traditional initial public offerings of shares -- a process overseen by the SEC -- in favor of so-far mostly unregulated ICOs. The commission examined the sale of tokens to fund a startup known as the DAO last year, which raised about $150 million over four weeks, according to the SEC’s investigative report released Tuesday.

The agency’s enforcement division was asked to decide if the DAO token sales “violated federal securities laws with unregistered offers and sales of DAO Tokens in exchange for ‘Ether,’ a virtual currency,” the report said. The SEC decided not to bring charges in the DAO token sale case.

Instead, the SEC report said it wanted “to caution the industry and market participants: the federal securities laws apply to those who offer and sell securities in the United States, regardless whether the issuing entity is a traditional company or a decentralized autonomous organization, regardless whether those securities are purchased using U.S. dollars or virtual currencies, and regardless whether they are distributed in certificated form or through distributed ledger technology.”

One recent ICO was led by Gnosis, a prediction market application based on the Ethereum blockchain. It raised $12.5 million in 12 minutes on April 24, resulting in a market value of almost $300 million. It’s generated no revenue and has little more than a white paper describing what it intends to do. Yet its tokens, which would allow users to bet on things such as election outcomes, have soared 200 percent since early May, according to Coinmarketcap.com.

Open Question

An open question is whether the SEC will apply these new standards to coin offerings that have already happened, said Walch, who is also a research fellow at the Centre for Blockchain Technologies at University College London. And while the SEC won’t pursue action related to the DAO token sale, “I don’t see anything in here that says there won’t be enforcement actions against others,” she said. Some recent ICO have been “egregious,” she said. “I’d be very surprised if they were willing to shove them all under the rug.”
The SEC decision comes a day after the U.S. Commodity Futures Trading Commission gave LedgerX LLC approval to offer options trading based on bitcoin. That could help mature the business of bitcoin trading by helping traders offset risks with derivatives. But it also underscored the fact that digital currencies, decentralized technologies that appeal to the libertarian-minded, probably cannot escape governments.

ICOs offer an attractive deal to young companies: going directly to customers for funding, avoiding venture-capital firms and other professionals. SEC Chairman Jay Clayton addressed the balance he’s trying to strike, saying in the regulator’s statement that, “We seek to foster innovative and beneficial ways to raise capital, while ensuring -- first and foremost -- that investors and our markets are protected.”

“What the SEC did not say is that all tokens are securities. Rather, they suggest a facts-and-circumstances test,” Peter Van Valkenburgh, research director at Coin Center, said in an email. “We believe that applying the same facts-and-circumstances test to other tokens will mean that some do not fit into the definition of securities, particularly tokens with an underlying utility rather than a mere speculative investment value.”

Exchange Registration

Markets such as Coinbase Inc.’s GDAX and Gemini Trust Co. that offer trading in digital assets so far have dealt mostly with state, not federal, regulators. The SEC now says that will likely change. “Additionally, securities exchanges providing for trading in these securities must register unless they are exempt,” the agency said.

Calling that a “big deal,” Walch said, “Those in the crypto world have been acting as if they live in an alternate universe, and the SEC has delivered a reminder that they still live in the real world, with real investors and real people making decisions that they must be accountable for.”