Winter for blockchain token sales? SEC swoops on ICOs

Winter may arrived for initial coin offerings, the stampede of unregulated fund raising events using blockchain technology.

US financial regulator, the Securities and Exchange Commission (SEC), has issued dozens of subpoenas and information requests to technology companies and advisers involved in ICOs, according to reports in the Wall Street Journal.

US lawmakers recently commented that pretty much every blockchain token to issued since (and including) Ethereum back in 2015 is a security; in other words a speculative financial instrument which should be registered with the SEC.

The SEC wants to know about the structure of these sales and pre-sales. In order to execute ICOs, into which some $1.66bn has been poured this year, the issuers of blockchain tokens have attempted to jump through various hoops in the hope of appeasing regulators.

Some companies will apply for an SEC exemption which restricts retail investors from the sales, and only allows accredited investors, or people with a relatively high net worth who fall within a different risk category.

The so-called "simple agreement for future tokens" (SAFT) framework will come under scrutiny, according to the WSJ report. The SAFT is a proposed legal framework put together by New York law firm Cooley and some of the leading blockchain startups in the space. The aim was to create a way of distributing tokens only after a functioning service is in place, meaning the token/project would fail the Howey test, a legal precedent for establishing the status of a security.

The Journal also mentions the forthcoming Telegram ICO, which is rumoured to have already raised as much as $1.6bn in a series of secret presales. Apparently, HNWIs and others invited into those presales can trade the rights to participate for a profit before the sale even begins, said the report.

A "dramatic upturn in enforcement activity" can be expected, stated the Journal, and at least a dozen ICOs have been put on hold since the SEC probe began.

Coinciding with this is another interesting declaration by the SEC regarding the token economy. According to a report by the New York Times, the regulator has given its blessing to the recent takeover of cryptocurrency exchange Poloniex by Goldman Sachs-backed fintech Circle.

The SEC has taken a "very favourable" approach to Circle running the exchange as an Alternative Trading System (ATS) and will not pursue any prior trading activity that has taken place there. People familiar with the blockchain space may detect a whiff of hypocrisy here. Nathanial Popper at the Times tweeted: "The SEC seems to be saying here that it's okay if you broke the rules, as long as you get acquired by a legitimate player before we crack down on you."

In terms of what can be taken away from this – of course the ICO Wild West needs cleaning up. The SEC is seeing securities sold over the garden fence so to speak, like people did before the Wall Street crash of 1929. In addition, there is no doubt that wealthy investors selling the rights to secret and private pre-sales demonstrates all the iniquities of Wall Street which most blockchain projects sought to stamp out.

But it's also worth remembering that ten years ago regulators, ratings agencies, lawyers and the whole bureaucracy of the financial system showed itself to be, at best, useless in preventing greed-driven impropriety and vice. Taxpayers ended up bailing out the system.

Maybe it's just a happy coincidence that the Bitcoin white paper was released at the start of 2009; but just in case the world forgets, the words "Chancellor on brink of second bailout for banks" are engraved into the genesis block for posterity.