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Crypto Regulation: Can Securities Laws Keep Pace with Innovation?

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.

Crypto assets are used primarily as speculative investments, which is not in line with the stated vision of most projects out there. How should regulators navigate this?

The whole rationale behind crypto assets was decentralization — a way to create a non-centralized, non-government-controlled medium of exchange across multiple parties. The vision was that it would provide banking attributes without necessarily having a bank, that you’d be able to use crypto assets as a means to support parts of the community that otherwise were not being properly supported by the financial industry. That’s largely not been the case. You can argue that in some cases people pursuing crypto deals are taking advantage of the folks that crypto initially was intended to support.

There will come a time when crypto will begin to look more like a commodity or more like a currency. In that case, the need for regulation drops away. We’re just not there yet. There should be a regulator focused on consumer protection precisely because of the scams.

One of the throughlines here is technological innovation. Law is unable to keep pace, and that creates an environment with increasing potential for fraud like what we saw with Sam Bankman-Fried, the founder and CEO of the cryptocurrency exchange FTX.

FTX is a huge blow to the integrity of the industry just because FTX was viewed as the safe place in which you could do trading activity. The other part is it was done offshore in the Bahamas, so it was being done away from the direct regulatory oversight that you might otherwise see. A large part of what was happening there would have been either prohibited or regulated were we to treat these underlying instruments as securities.

You can’t trust the markets to police themselves. This is a common view that the market will police itself, and that if there had been a problem with FTX, it would have been uncovered much earlier because the market or participants in the market would have seen this. In an enthusiastic market like crypto, you don’t see that type of oversight.

As of August 2022, whitehouse.gov. tells us that the estimates of the total global electricity usage for crypto assets are between 120 and 240 billion kilowatt hours per year. Is there any push to regulate this side of things?

There already are rules in place and government groups like the Department of Energy and the Environmental Protection Agency that have the ability to step in, look at the issues and potentially regulate the usage of electricity, consistent with their mandate for environmental protection and energy conservation.

I would ask not whether we should look at this but whether we’re being broad enough. If electricity is an issue and energy is an issue for crypto, let’s look at the New York Stock Exchange and stocks and bonds that are trading. I believe there are huge amounts of energy being expended there as well.

Want more? Explore Charles Whitehead’s Securities Law certificate program delivered by eCornell.

This post has been edited for length and clarity.

Hear more from Whitehead in the webcast “Crypto Regulation: Can Securities Laws Keep Pace with Innovation?”

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