Get your tickets for the 2023 Coin Center Annual Dinner – April 26 in Austin, TX

The SEC published much-needed guidance on tokens and trading.

It recently released a “Statement on Digital Asset Securities Issuance and Trading” that uses the example of recent enforcement actions and settlements to illustrate how the securities laws will be applied to token issuance and exchange. It’s well done, reasonable, and says much of what one would expect: That looking at the totality of an activity, doing something that would otherwise be regulated isn’t exempt just because one uses blockchain technology to do it.

That said, we’re a little concerned that the Statement suggests that “an entity that provides an algorithm, run on a computer program or on a smart contract using blockchain technology, as a means to bring together or execute orders could be providing a [regulated] trading facility.” As we’ve explained previously, writing and publishing code alone cannot be a crime.

We do not think the SEC intends to directly regulate the mere creation and publication of code. For one thing, this statement is focused on the current landscape of decentralized exchanges and, as of today, there is no code that, when published to a blockchain on its own, could result in a fully functional exchange. Additionally, the statement repeatedly focuses on “the totality of activities and technology used” to generate the exchange platform, not on any particular activity, such as software design. However, we encourage the SEC to make it clear that merely writing and publishing code for decentralized exchange by itself does not “provide a trading facility.”