That was fast. Yesterday, in response to the Working Group recommendations from mid-week, SEC Chair Paul Atkins unveiled the launch of the Commission’s “Project Crypto” during a speech to the “America First Policy Institute.” The initiative directs the SEC’s policy divisions to work with the existing Crypto Task Force led by Commissioner Hester Peirce, to “swiftly” develop proposals to implement the Working Group recommendations. But it sounds like those in the crypto ecosphere will be able to break through previous roadblocks even before final rules are on the books:

In accord with the PWG Report’s recommendations, I have directed the Commission staff to draft clear and simple rules of the road for crypto asset distributions, custody, and trading for public notice and comment. While the Commission staff works to finalize these regulations, the Commission and its staff will in the coming months consider using interpretative, exemptive, and other authorities to make sure that archaic rules and regulations do not smother innovation and entrepreneurship in America.

Here’s more detail on what Chair Atkins is thinking for some aspects of the new regulatory framework:

I have directed the Commission staff to work to develop clear guidelines that market participants can use to determine whether a crypto asset is a security or subject to an investment contract. Our goal is to help market participants to slot crypto assets into categories, such as digital collectibles, digital commodities, or stablecoins, and assess the economic realities of a transaction. This approach can allow market participants to determine, based upon clear guidelines, whether any outstanding promises or commitments of the issuer cause the crypto asset to be subject to an investment contract.

In addition, it should not be a scarlet letter to be deemed a security. We need a regulatory framework for crypto asset securities that allows these products to flourish within American markets. Many issuers will prefer the flexibility in product design that the securities laws afford, and investors will benefit from the opportunity to earn distributions, voting rights, and other features typical of securities. Projects should not be forced to establish decentralized autonomous organizations and offshore foundations or decentralize too early if this is not their desired plan of action. I am excited to see new use cases for crypto asset securities in commerce, such as the ability to participate in blockchain network consensus with tokenized equities.

Thus, for those crypto asset transactions that are subject to the securities laws, I have asked staff to propose purpose-fit disclosures, exemptions, and safe harbors, including for so-called “initial coin offerings,” “airdrops,” and network rewards. Regarding these sorts of transactions, our goal should be that issuers no longer exclude Americans from their distributions to avoid legal complexity and lawsuits,[14] but instead choose to include Americans to enjoy legal certainty and an accommodating regulatory environment. It is my view that a Cambrian explosion in innovation could occur if we stay true to this course.

The speech also indicates that the Commission is open to working with companies that want to “tokenize” securities – and engage in other yet-to-be-known types of innovation:

While the Commission is actively considering industry requests that could jumpstart innovative activity, we are also contemplating an innovation exemption that would allow registrants and non-registrants to quickly go to market with new business models and services that do not neatly fit within our existing rules and regulations. The Commission will continue to ensure that market participants adhere to certain conditions and requirements designed to achieve the policy aims of the federal securities laws.

Under my vision for an innovation exemption, innovators and visionaries will be able to immediately enter the market with new technologies and business models but will not be required to comply with incompatible or burdensome prescriptive regulatory requirements that hinder productive economic activity. Instead, they will be able to comply with certain principles-based conditions designed to achieve the core policy aims of the federal securities laws. These conditions may include, for example, a commitment to make periodic reports to the Commission, incorporate whitelisting or “verified pool” functionality, and restrict tokenized securities that do not adhere to a token standard that incorporates compliance features, such as ERC3643.[22] I encourage market participants and SEC staff alike to have an eye towards commercial viability when contemplating what various models could look like.

In his speech, Chair Atkins analogized the current need for innovation to the one facing the SEC in the 1960s, when the market transitioned from paper stock certificates to electronic DTC entries. I do wonder whether that was as polarizing at the time as crypto is now. My guess is, probably! Whatever your views on the merits of crypto becoming mainstream, you can’t argue with the fact that the market appears to be poised for some big changes right now.

– Liz Dunshee