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UPDATED: SEC, CFTC Testimony Released In Advance Of Senate Banking Committee Hearing On Virtual Currency



De Silva

On Monday, the testimony to be given by the SEC and CFTC chairmen was posted on the Senate Banking Committee website. The hearing is scheduled for 10:00 a.m. EST, February 6, 2018.

On February 6, 2018, the US Senate Banking Committee will host a hearing entitled "Virtual Currencies: The Oversight Role of the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission." The chairmen of the SEC and CFTC – Jay Clayton and J. Christopher Giancarlo, respectively – are scheduled to deliver remarks on the matter.

UPDATE | February 5, 2018, 4:40PM

Chairman Jay Clayton's prepared testimony on behalf of the SEC:

1)     lays out the SEC's mission and jurisdiction over certain aspects of the ICO space,

2)     highlights potential risks to consumers in the cryptocurrency markets and the agency's various warnings,

3)     continues to emphasize the importance to regulators of substance over form,

4)     raises the possibility of creating federal standards for digital asset regulation,

5)     mentions the agency's long list of questions regarding cryptocurrency-based financial products,

6)     acknowledges that social media platforms (i.e. Facebook) have responsibly curtailed ICO and cryptocurrency advertising,

7)     provides historical context of securities regulation as it applies to ICOs, referencing The DAO report,

8)     notes the creation of the SEC's Cyber Unit in September 2017,

9)     details the agency's actions against blatantly fraudulent and noncompliant operators, and

10)  voices concerns about publicly traded companies that have undertaken blockchain strategies and/or ICOs.


"Determining what falls within the ambit of a securities offer and sale is a facts-and-circumstances analysis, utilizing a principles-based framework that has served American companies and American investors well through periods of innovation and change for over 80 years." (P. 1-2)
 "When investors are offered and sold securities – which to date ICOs have largely been –they are entitled to the benefits of state and federal securities laws and sellers and other market participants must follow these laws." (P. 3)
"Investors should understand that to date no ICOs have been registered with the SEC, and the SEC also has not approved for listing and trading any exchange-traded products (such as ETFs) holding cryptocurrencies or other assets related to cryptocurrencies. If any person today says otherwise, investors should be especially wary." (P. 3) 
"The recent proliferation and subsequent popularity of cryptocurrency markets creates a question for market regulators as to whether our historic approach to the regulation of sovereign currency transactions is appropriate for these new markets. These markets may look like our regulated securities markets, with quoted prices and other information. Many trading platforms are even referred to as "exchanges." I am concerned that this appearance is deceiving." (P. 4)
 "While there are cryptocurrencies that, at least as currently designed, promoted and used, do not appear to be securities, simply calling something a 'currency' or a currency-based product does not mean that it is not a security. To this point I would note that many products labeled as cryptocurrencies or related assets are increasingly being promoted as investment opportunities that rely on the efforts of others, with their utility as an efficient medium for commercial exchange being a distinct secondary characteristic." (P. 5)
"Merely calling a token a 'utility' token or structuring it to provide some utility does not prevent the token from being a security. Tokens and offerings that incorporate features and marketing efforts that emphasize the potential for profits based on the entrepreneurial or managerial efforts of others continue to contain the hallmarks of a security under U.S. law. It is especially troubling when the promoters of these offerings emphasize the secondary market trading potential of these tokens, i.e., the ability to sell them on an exchange at a profit. In short, prospective purchasers are being sold on the potential for tokens to increase in value – with the ability to lock in those increases by reselling the tokens on a secondary market – or to otherwise profit from the tokens based on the efforts of others. These are key hallmarks of a security and a securities offering." (P. 7-8)

Chairman J. Christopher Giancarlo's prepared testimony for the CFTC:

1)     discusses the remarkable ascent of virtual currency prices and the relatively small market cap of digital assets compared to the conventional economy,

2)     provides an overview of the CFTC's mission, explaining the agency's jurisdiction over derivatives markets and misconduct in underlying spot markets for commodities,

3)     recalls that the CFTC classified virtual currencies (i.e. bitcoin) as commodities in 2015,

4)     outlines the agency's recent enforcement actions against several fraudulent virtual currency schemes,

5)     details the "heightened review" process created by the CFTC for cryptocurrency derivatives,

6)     captures the agency's educational efforts for investors and market participants,

7)     explains the CFTC's coordination and joint efforts with other organizations and government entities, and

8)     highlights the great potential for distributed ledger technology in both corporate and regulatory settings.

You may access their statements here: SEC (

...and here: CFTC (

Matthew De Silva

Matthew has a passion for law and technology. He graduated from Georgetown University, where he studied international economics and music. Matthew enjoys biking and listening to tech podcasts. He lives in Los Angeles.

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