In a recent development that could have significant implications for the crypto industry, the US Securities and Exchange Commission (SEC) released a trove of documents, including emails and notes, as part of its ongoing legal dispute with cryptocurrency company Ripple. The SEC sued Ripple in 2020 for raising $1.3 billion through the sale of unregistered securities in the form of its own token, XRP.
Many in the Web3 space believe these documents, which were unsealed by order of a judge, shed much-needed light on the SEC’s approach to regulating the industry and could even affect how Ether and Bitcoin are legally categorized.
Shifting regulatory advisories
The documents relate to a speech given in June 2018 by William Hinman, the former director of the SEC’s Corporation Finance Department. In the address, Hinman clarified that the SEC did not consider Ether a security at the time. This clarification came before the SEC attacked Ripple’s own cryptocurrency, XRP, as security.
In Hinman’s speech, he stated, “Apart from the fundraising that accompanied the creation of Ether, based on my understanding of the current state of Ether, the Ethereum network and its decentralized structure, the current offerings and sales of Ether are Ether no securities transactions.”
The unsealed documents reveal the evolution of Hinman’s speech and the discussions that took place among SEC employees, including those from the Commerce and Markets Department. The documents show that Hinman’s original language around Ether was considered “fuzzy” by Brett Redfearn, then director of commerce and markets. Redfearn suggested that Hinman use more definitive language.
One of the largest takeaway restaurants in the #HinmanEmails is that they directly undermine Gary Ginsler’s main talking point: the securities laws are “obvious” as applied to crypto.
If it’s so obvious, why did his own firm’s lawyers doubt their position on ETH? https://t.co/8ZJMqNHxgP
— orlando.btc ⌐◨-◨ (@orlando_btc) June 13, 2023
The documents also show that the SEC had a phone call with Vitalik Buterin, the co-founder of Ethereum, to confirm its understanding of the operation of the Ethereum Foundation, an interaction that underscores the regulatory body’s efforts to fine-tune the intricacies. of the Ethereum network before making a public statement about the status of Ether.
SEC members also expressed a desire not to suggest that Ether is a security, expressing concern that such a statement could limit the agency’s ability to change its stance on Ether in the future. It was also said that making a direct statement about Ether’s status could shift the focus from analyzing whether or not it met the legal definition of a security to whether or not it should be treated as a single security. regulated.
Notably, the documents highlight an admission within the SEC that tokens on a sufficiently decentralized network are not securities and thus are not required to register. Some even went so far as to point out what could be considered a “regulatory gap” in the cryptocurrency space.
The Web3 community participates
It is this regulatory loophole that industry advocates have pointed to over the years as the SEC ramps up its aggressive efforts to rein in the space through enforcement action. While it remains to be seen how legally useful the documents will be for Ripple’s case, the information they contain could be more useful for the broader crypto industry’s goal of highlighting what many in the space see as the lack of good faith of the SEC in regulating the industry.
“The Regulatory Gap.” Evidence from the Hinman emails of what we told the Third Circuit, Congress and the SEC itself: that securities laws are incomplete when it comes to digital assets, that securities laws are not meant to rule all digital assets , and that… pic.twitter.com/IgPJvEyqq2
— paulgrewal.eth (@iampaulgrewal) June 13, 2023
whatever you think of Hinman’s emails and Ripple’s chances of winning/losing, I think we can all agree on SEC policies, tactics, everything about crypto was an absolute mess – even before Gensler—who invited arbitrary application of the law through vague “morphing” non-guidance
— _gabrielShapir0 (@lex_node) June 13, 2023
Conflict of interest
The documents are not the first to be revealed in the SEC’s case against Ripple. In April 2022, emails between SEC ethics officer Shira Pavis Minton and Hinman were released at the request of the nonprofit Empower Oversight, which filed a Freedom of Information Act request.
Those emails revealed that Minton warned Hinman not to participate in SEC-related matters that could affect the Simpson Thacher law firm (his former employer) and not to meet with anyone from the firm. Despite this, Hinman met with a partner of the firm several times. Hinman also met with Ethereum co-founders and investors before giving his 2018 speech in which he labeled Ether a token and not a security.
The April emails hinted that Hinman’s interest in protecting Ether (compared to other tokens) may have been unethically motivated. If the courts approve such conflicts of interest, it could work in Ripple’s favor and potentially bolster the industry’s efforts to show that the SEC is out of touch with and compromised in their sharp regulatory approach.
The revelations the documents offer come as the SEC prepares for a potentially protracted legal battle with Binance and Coinbase, the two crypto exchanges it recently filed lawsuits against for selling unregistered securities.
