When does a token become a security? It’s a question that courts, the SEC and startups are tackling on an increasingly frequent basis.
Now taking a swing at an answer is UCLA School of Law Professor James Park, who is the Faculty Director of the Lowell Milken Institute, a securities expert who recently tackled the sticky question of the regulatory status of cryptocurrency in a newly released policy report from the institute, ”When Are Tokens Securities? Some Questions from the Perplexed.”
In a recent conversation with The Recorder, Park dove into the biggest issues facing the cryptocurrency marketplace, how companies can operate in the evolving regulatory landscape, and how federal agencies can approach the industry without killing innovation. Here are the highlights, edited for clarity and length.
In assessing whether ICOs are securities, you focus on four areas: Ether’s changing security status; blockchain project functionality; the SEC “stopping” ICOs; and ICOs as a hint entrepreneurs are lacking in adequate capital. How are those things all related?
In some ways this is about [the securities] framework that was built in the 1930s. A lot of these issues raised by ICOs have not really been grappled with because we never had anything like this. The challenge of these older definitions of securities: How do they deal with this new way of developing a business that may never even have centralized management? It has to do with the Securities and Exchange Commission trying to respond to something that happened very quickly and became somewhat normalized. And they’re also facing their own pressures because they don’t want to be seen as arbitrarily stomping entrepreneurship. That raises the bigger question as to the rule of the securities laws with respect to entrepreneurship: Are they squelching innovation potential? So I think they’re all related in certain respects.
The SEC deemed ether a security then walked back that classification. What are the ramifications on other utility coins on the market?
It at least raises the possibility that you could start as a security and evolve into something else. To some extent, if you have a clear plan toward that, I think that it can be sort of a plus in terms of your ICO. If you could proceed in a way in which at least if you’re a security you’re selling through private placement, methods that don’t need registration, then you can build up to the point where you can actually distribute tokens more widely at a certain point.
But even with ether, there are still some interesting questions with regard to centralization. There’s an Etherium foundation that is actively working to make it better. Then the question becomes, well, isn’t that sort of like a centralized management? What can you do? That implies perhaps centralized management could have some involvement if it’s needed.
With ether itself, if you’re acknowledging it’s not a security, perhaps the law should allow for some continued involvement. It’ll be the courts that decide. Given the novelty of the projects, we may see some courts opine, and some cases may not be so clear. I think that also restrains the SEC.
What thorny aspects could arise in falling in and out of securities status?
Maybe you fall out and then back into it, which could be very possible. You could imagine a point where you are decentralized but people aren’t active on your community, so it might get to a point where you are much more centralized. I think that’s an extremely thorny issue.
The other issue is to what extent do you have to be functional? I think it has to be you are functional or achieve some sort of use by individuals of your platform, not the promise of speculative returns, but because you’ve got a good idea. I think that’s what will distinguish those projects that will evolve out of security status and those that fail. Are you just bringing them in because you feel it will go up in value, or do you have a really good idea?
If the decline in cryptocurrency and bitcoin prices deflates the market a bit, then maybe some of the people that are investing are doing so more cautiously because they think it’s a good idea.
Let’s chat about what you identify as the “Hinman Paradox.” You write: “For a utility token to be distributed freely without regulation by securities laws, it must be functional. But many utility tokens are only functional if they are distributed widely enough so that a decentralized system arises.” What tokens run into this dilemma and why?
Any token that to some extent relies on some sort of verification by third parties with respect to the validity of transactions is going to apply simply because in order for it to work, I need some incentive. Typically, I might get paid in ether or the token if I verify this transaction is a good one and unless it’s a market where people are willing to pay for those tokens, I’m not going to be willing to do that.
Virtually all of the true blockchain projects are going to run into this issue. I think that’s kind of what people are struggling with: until it’s widely adopted, you don’t have that financial incentive to actively verify transactions, contracts or whatnot.
Somehow ether got there, to the point where there is a financial incentive, because you’re getting paid in ether. So you are going to get something financial. That requires there at least being some market for it where you could exchange that for other currencies.
You list a number of reasons the SEC is approaching securities enforcement incrementally. Is there any one reason driving this incremental approach?
Maybe it’s part of the [SEC] culture to move slow and cautiously. It takes a while to get an enforcement case up and running. But I think it’s just as much the case of fearing there’s a potential of losing. They want to bring the strongest cases and not be seen as squelching entrepreneurship. I think that’s just as much of a factor.
They would not try to arbitrarily squelch an idea for the sake of doing it. I think they’re kind of learning as the process moves. I think it’s taking time for them to figure things out too.
Are they moving fast enough?
The Nov. 16 enforcement actions—if they had not brought those, I’d say they weren’t. I think the fact they were working on this was a very good step. It sort of signals they are treating the registration requirement seriously. I have two worries about the time it’s taking. No. 1, if you don’t have a presence in enforcing the law, people don’t know what the law is, and they’ll just kind of go forward. And secondly, you’re getting more retail investors who are now potentially trading real dollars for these bitcoins. Early on, it was people who had invested bitcoin when it was a dollar, and now it’s like $4,000, and they’re reinvesting those proceeds into something. Now you’re getting the person who’s buying for $4,000 and reinvesting it. And I think those are the people you’re most worried about.
You say that a risk of the SEC approach is the mixed signals it sends to the industry. What are the repercussions and what’s down the pipeline?
One impact is the fundraising hasn’t slowed all that much. I think you might end up having a problem that gets bigger and bigger. If you send mixed messages then certain practices can get entrenched. People who would not normally violate the law might go forward with something that does violate the law. That’s the challenge of regulation. To be fair to the SEC, it’s kind of unprecedented. It’s ballooning so quickly and raising billions of dollars.
You note that if a handful of working viable projects result from the industry, the SEC should relax its regulation. How would it relax?
I think they could expand the amount you could raise without registration through crowdfunding. Now you could raise about $1 million. Maybe you could modestly raise some of those thresholds so you could more easily substantial amounts without sort of registering as a security, and so getting more options in reaching the general public that might balance the need for investor protection with the entrepreneurship.
But the burden is really on the blockchain industry to show these are some projects that are good that have worked and are worthwhile. Once you begin seeing those, I think the SEC should really think seriously about giving a little more leeway to raise funds without registration.
Are we near that point?
I don’t know. Maybe it’s potentially there? It doesn’t seem to be looking great. My sense is that there’s not a whole lot of successful projects. But I think the fact that ether has been so successful should give us some pause. Over the next year or two it’s going to be a critical time for the industry to step forward and show that these are good projects that could really work.
The verdict is still out. I’m not sure if we’re close or not. But it’s probably going to have to happen in the next year or so.
Why that timeline? The current speed?
I think once you get beyond that, then you might have a bunch of failures. I think you need some successes to offset the failures. If you just have the kind of failures that are not productive, then maybe the case is that maybe this is really not worth the sort of risk to investors.