Ex-CFTC Commissioner Berkovitz Says ‘DeFi Should Be Regulated’ – But How? - Ep. 496

In the SEC’s push to rein in the crypto sector, one question looms large: Is ETH a security? Dan Berkovitz, a former CFTC commissioner and SEC general counsel, and Colin Lloyd, a partner at law firm Sullivan & Cromwell, assess the current state of the regulatory turf war in the U.S., shedding light on some of Washington’s unanswered questions.
Listen to the episode on Apple Podcasts, Spotify, Overcast, Podcast Addict, Pocket Casts, Stitcher, Castbox, Google Podcasts, TuneIn, Amazon Music, or on your favorite podcast platform.
Show highlights:

how an asset can be both a commodity and a security

what it means that bitcoin and ether were listed as non-security futures

whether The Merge may have changed regulators’ views on the classification of ETH

who would be responsible for determining that ETH is a security

what Colin and Dan say about ETH being a security or not

what would happen if any regulator, be it the CFTC or SEC, determined that ETH is a security

how and whether DeFi applications should be regulated

why it is important to consider the “human initiative” behind DeFi platforms

the implications of having a technology that allows for the sale of securities without an intermediary

the implications of the SEC’s proposal to change the definition of an exchange

how new technologies were integrated with the regulatory system in the past and how that differs from the current approach of the SEC

the problems of trying to regulate a technology that’s changing so fast

how other jurisdictions have been taking a more proactive approach to regulating digital assets

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Guests:

Dan Berkovitz, former General Counsel at the SEC and former Commissioner at the CFTC.

Previous appearance on Unchained: Can a DeFi Smart Contract Be Regulated? Two CFTC Commissioners Discuss

Colin Lloyd, partner at Sullivan & Cromwell

Previous coverage of Unchained on crypto regulation:

‘Is ETH a Security?’ Why Gary Gensler Couldn’t Give Congress a Straight Answer

Coinbase's Legal Action Against the SEC: How It Will Likely Unfold

Rep. Emmer on Why He Believes Gary Gensler Is a ‘Bad-Faith Regulator’

Is the Government Trying to Kill Off Crypto in the US?

Coinbase’s Top Lawyer Calls SEC Wells Notice a ‘Massive Overreach’

Links

CoinDesk:

U.S. SEC Moves Toward DeFi Oversight as It Reopens Proposed Regulations

SEC Chair Gensler Declines to Say if Ether Is a Security in Contentious Congressional Hearing

Bloomberg: CFTC Chair Rostin Behnam on the Fight to Regulate Crypto

Unchained:

SEC Chair Gary Gensler Avoids Question: ‘Is Ethereum a Security?’

SEC Sues Bittrex, Names Dash, Algorand and Other Tokens ‘Crypto Asset Securities’

Coinbase Seeks to Compel SEC Response to Rulemaking Petition

SEC Asks Court to Deny Coinbase Demand for Crypto Rules

Financial Institutions Hub: SEC Proposal Targets Crypto Exchanges, Trading Platforms, and Brokers

Emmer and Soto Introduce Bipartisan Bill to Provide Regulatory Clarity for Digital Assets

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