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Speaking at New York’s Consensus Invest conference, Clayton emphasized that he would not be comfortable with a bitcoin ETF until he saw better market surveillance and custody for cryptocurrencies.
"We've seen some thefts around digital assets that make you scratch your head," said Clayton. "We care that the assets underlying that ETF have good custody and that they're not going to disappear."
The Chairman’s skepticism is not surprising, given that the SEC has repeatedly rejected crypto-ETF bids in the past. Custody concerns, and worries about the potential of market manipulation have been offered as reasons for rejections in the past, but not everyone at the SEC is in agreement about these rejections. SEC Commissioner Hester Peirce criticized the agency’s disapproval of a Winklevoss-backed bitcoin ETF back in August.
There is also concern in the crypto-community about the lack of clarity provided by the SEC regarding what does and doesn’t constitute a security. Back in 2017 the SEC announced that the tokens issued by the “Decentralized Autonomous Organization” – The DAO – were securities, and then commented that Ethereum was not. These definitions were later put on shaky ground when Clayton remarked that that while SEC employees are authorized to provide guidance to industry stakeholders on how regulations apply to specific circumstances, this guidance is nonbinding and creates “no enforceable legal rights.”
Many were hoping to gain some clarity with Clayton’s remarks at the conference, but he was quick to point out at the beginning, “these views are my own, and do not represent the SEC”. He further avoided questions throughout the discussion, and when pressed about how to classify XRP – a controversial and popular cryptocurrency -- Clayton declined to answer.
One thing that is clear, however, is that the SEC is going to continue to continue to aggressively pursue any company that they deem to be skirting SEC regulations.
In an interview immediately following his conference appearance, Clayton said:
“This technology that we’re talking about today is a powerful technology. But if you’re going to raise money in America, you need to follow our securities laws.”
He added, “The defense ‘I didn’t know’ is no longer really viable.
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