How Crypto Is Taking on the SEC

27:32Really fascinating stuff. And then we step up from the state level to the federal level. We have SEC, as you point out, Chairman Gensler, saying the only thing that he's comfortable with not being a security is Bitcoin implication. Therefore, Ethereum is security. And yet, as you mentioned, the lawsuit CFTC filed in federal court against Binance. And I just want to read this. If we can bring it up on screen, it'd be great because this is such an important point. The lawsuit talks about futures, options, swaps, leverage retail commodity transactions, quote, involving digital assets that are commodities, including Bitcoin, Ethereum, and Litecoin for persons in the United States.

28:15So there you have it. The CFTC directly making the statement that Bitcoin, Ethereum, and Litecoin are, in fact, commodities. SEC making a counterargument. Give us a sense of how you think about reconciling these two positions. Well, here's what I predicted that this might happen. It hasn't yet, but it's still early. What will be fascinating, Ash, is don't be shocked if we see the SEC dogpile on CFT, on Binance, and say that Binance's ETH staking is also violating securities laws. I won't be surprised.

29:00Battle where in the same case, so to speak, you have ETH being called a commodity, but the ETH staking or ETH being staked in that fashion being called a security. I'm not guaranteeing that's going to happen. I'm just saying I won't be surprised if I see that. The CFTC chairman literally said he disagrees with Gary Gensler. And so personally, this is the quandary that people have, right? Proof of work, decentralized proof of stake. Even Ripple, interesting, when Ripple was sued, Brad Garlinghouse was making a point to - Brad Garlinghouse, one of the founders, of course, of Ripple. Right, he's the CEO of Ripple, and he made it a point to say, listen, the XRP ledger is a consensus protocol.

29:56It's not based on proof of staking. So the fact that Ripple owns 50 % of the XRP, that's only relevant and would be more centralized and blah, blah, blah, if we were a proof of stake kind of consensus operation. And so I just throw that out because that's kind of, some people saw the proof of stake being an issue. And so if they call proof of stake a security, then how do they shut down Bitcoin? They shut down Bitcoin by the energy. And so that's why lately on Twitter I said, watch, you're going to see the energy attack on Bitcoin become bigger and bigger. I actually said that three weeks ago, and we just saw a New York Times article come out where they said Bitcoin mining was destroying the environment and all that.

30:45A really big, comprehensive, deep article making this argument. I guess that tells you a little bit about, well, I should say maybe what the establishment thinks about Bitcoin. Oh, absolutely. And so we're going to have this jurisdictional battle. And I think it's become apparent that Gensler, when you have a Congress that won't act, Everyone keeps saying, Ash, when we get regulatory clarity, when we get regulatory clarity, when the hell are we going to get regulatory clarity from Congress? It's not going to happen. We're entering an election year. It's not going to happen. So the earliest that I predict Congress would actually pass legislation that survives the House, the Senate, and signed by the president, you're looking at late 2025 at the earliest.

31:36And so these court battles that you and I and the rest of the world are witnessing is where we're going to get some kind of clarity. It's going to be judicial clarity as opposed to regulatory clarity. And so the battle will be won or lost in the court case, such as the Ripple case coming up. But it's interesting. And when you have an inept Congress, then you have a regulator who knows that he can engage in regulation by enforcement. And that's what we're witnessing. We're witnessing an SEC, Gary Gensler, saying, I'm going to go out and I'm going to call all these tokens securities and nobody's going to stop me.

32:21And I mean, a lot of people took issue with his April fools. He changed his profile on Twitter where he put on sunglasses and a quote that said, deal with it. I mean, personally, some people think that's fun and that's silly. I think it's sending a message which there's nothing you can do about it. You're going to have to live with it. This is what I'm doing. So it's going to be very fascinating. And I think that it causes more eyes to be on that Southern District New York decision that we're waiting for in the Ripple case. And if the decision is bad for Ripple and XRP and crypto in general, it's going to gain more momentum for Gary Gensler and the SEC.

33:02If the judge stops them in their tracks and says this is overreach, this is government intrusion, and kind of slaps them down, then I think we're going to see maybe Gensler lose a lot of his political momentum. Hey, everyone, we're going to take another quick break and hear a word from our partners. We'll be right back to the Real Vision Crypto Daily Briefing.

33:29Well, one of the things that's so interesting about this conversation is that everything is connected. You mentioned the Ripple case. We're going to talk about that in just one second in some detail here. But we should also point out the political dimension of this. You mentioned Senator Warren earlier. We should point out Gary Gensler, appointed by President Joe Biden, obviously a Democrat. Elizabeth Warren, also a Democrat. Congress right now divided. Senate in the control of the Democratic Party. Republicans control the House. But look, here we are in 2023. No matter what you believe politically, there are a couple of television networks that will tell you you're right.

34:05That's just the nature of the landscape of where we are. But the reality is cryptocurrency has taken on a political dimension here in 2023. I think it's any reasonable interpretation of the facts. Anyone who analyzes this, anyone who works in the space every day would have to concede that the Democratic Party clearly much more overtly hostile to digital assets, to cryptocurrency than Republicans. It's just a statement of fact. You could prove it based on voting records. You could analyze the statements. There is a very clear affinity for criticizing the digital asset space on the Democratic side of the aisle right here in 2023.

34:38Not a political statement, just an observation and interpretation. any analyst would have to reach. Yeah, I mean, listen, you're seeing they're not letting the truth get in the way of their narrative. I can tell you that because we're seeing each day that crypto, including Bitcoin, is still used predominantly for illicit activities to fund terrorism, for cartels. Now, we know in the reality, the FBI, the CIA have all publicly come out and said in so many words that you'd be a moron to use Bitcoin, a public distributed ledger, as a way of funding terrorism or drug activity. But that's still the narrative that some of the Democrats like Elizabeth Warren are going on.

35:25And I think that if you go to the Binance case that you see from the CFTC, they use language in there that's not necessarily necessary or relevant to the underlying charges. For example, they talk about there was some email about funding terrorists and there was this language of an email by someone at Binance that said, oh, you can't buy an AK-47 for$600. And they related to a terrorist organization. And when I read that, I said, okay, this really isn't relevant to the underlying charges, But why is it in there? And it's used in there to create that narrative. Look, this exchange, you know, even if we're talking about sums of five hundred dollars or four hundred dollars, look, they potentially are trying to use it to fund terrorism.

36:17Crypto assets are bad for you. You know, and a lot of people believe that narrative is going to continue to build so that they can turn around and say, here is the CBDC that we need to implement. Yeah, and by the way, I just want to put this out there just so that we can be transparent about what's happening. And this is directly from Senator Warren's website, warren.senate.gov. And these are statements given Tuesday, February 14, 2023, before the United States Senate. Quote, Senator Elizabeth Warren, thank you, Mr. Chairman. So big time financial criminals love crypto. Last year, just in one year, crypto was the payment method of choice for international drug traffickers who raked in over a billion dollars through crypto.

37:03North Korean hackers who stole$1.7 billion and funneled that money into their nuclear program. And ransomware attackers who took in almost$500 million. dollars. I just, on a factual basis perspective, it's really hard to understand how crypto could be, and I quote, the payment method of choice for international drug traffickers, close quote, when we know, I think there's broad consensus, at least I'm not an expert on the topic, but I believe there's broad consensus that the payment method of choice is banknotes, they're dollars, physical currency notes, dollars and euros. Of course they are. I mean, all the laundering that we've heard about in the last decade, if you compared the laundering that went through Deutsche Bank or Swiss Credit or any other bank, I'm not picking on any particular one, and compared them to the amount in Bitcoin or crypto, it would pale in comparison.

38:00and it'd be a fraction of a fraction of a percent. And it's, but it's the narrative that people, you know, are pushing. And then when, unfortunately, when you have an FTX and you have Celsius and you have some self-inflicted wounds that sort of the crypto industry has created itself because of greed and deceit, it gives those narratives because what I'll tell you, Ash, something that was fascinating to me is I spoke very briefly at a New Hampshire state. They had a financial services committee. So sort of like Congress that Patrick McHenry and Warren Davidson are on on the federal government, the state of Maine has one of those, obviously, states in it.

38:47And there was a hearing where the fellow, there was a state senator, and he introduced a bill that would allow specialty financial private institutions to custody Bitcoin. basically right sort of similar to what happened in wyoming and what would be fascinating ash is you heard these non-crypto people the questions that they were asking people like me or others that testified and it was quote i hear that bitcoin's used by criminals like that's that was a question um i don't understand this mining situation like how does a miner make money at just seems like a confusing system. And the point I'm getting at is when you leave crypto Twitter and crypto world that a lot of your audience knows, and you go to the general population, man, are we still early, is what I'm saying.

39:46Regular people are clueless about the technology is what I'm getting at. And so that's just, it's just something that that's why we're seeing narratives being pushed. And when FTX happens, you know, that FTX, Gensler, yes, he met with Sam Bateman and he may have had an optics issue there for a while. But at the end, he's loving it because it gives him his narrative. Look, we have to shut this stuff down. These people are being victimized because look how bad crypto is. And I think people are going to be surprised that we have to fight narratives that we thought were 2015 narratives. And yet here we are and it's being recycled.

40:35Yeah, I should also say, because I want to bring the viewers into this conversation, wherever you're watching this show, put down your questions in the chat. We'll ask the best ones on air later in this show. Remember, Real Vision members take priority, but the good news is membership is free. You can get there at realvision.com forward slash crypto. If you want to sign up, that's realvision.com forward slash crypto. if you want to sign up. So much to talk about. By the way, I noticed one of our regular viewers, Ralph, on the website is asking, where are we with the XRP litigation? We keep promising to come back to this.

41:08And he adds, I noticed that Montenegro is testing a CBDC. That's, of course, a central bank digital currency with XRP's parent company, Ripple Labs. Coindesk reporting that yesterday. John, big picture, where are we with the Ripple litigation? We talked about this a little bit earlier in the show. What's your analysis on what's happening right now in the Southern District of New York? Great question, of course. And it's interesting because we've been talking about all of this regulatory stuff in the SEC in the United States, and you just referenced the CoinDesk article and the partnership with Ripple about CBDC.

41:46And it's interesting because Brad Garlinghouse, the CEO of Ripple, and also Dr. Martin, who is head of research at Uphold, he said this as well. He said, when you leave the United States, the rest of the world doesn't really give a crap about the SEC and the SEC's theories of what's a security and what meets the Howey test and what doesn't. And the rest of the world is moving on and Ripple has has increased. They're still hiring while other people are, you know, laying people off and whatnot. And so I just throw that out there that a lot of times us in the United States, we think everything is about the United States and the rest of the world is sort of moving on without us personal opinion.

42:33Now with Ripple, basically, Ash, we're at a point where the judge could decide the decision on summary judgment. For your audience, basically, Ripple has said to the judge, here's some paperwork. We don't need a jury because we win, and here's our arguments. The SEC has said the same. Judge, we don't need a jury to decide anything because we win. Here are the facts in the law. And now the judge then, of course, decides, does Ripple get an outright win? Does the SEC get an outright win? Or does she somehow give each side what the proverbial split the baby, so to speak, and say, hey, Ripple, you sold an investment contract during these years, but today you're sufficiently decentralized or whatever, and therefore ongoing and future sales of XRP are not implicated by the securities laws.

43:25And then that's the end of it. Or does she say, we need a jury to decide certain facts because there's too many disputed facts. And that decision could come down while we're talking. I've said that generally speaking, when Judge Torres, I've looked at her previous cases, and when she's provided a ruling on expert witnesses, it's called Darbert, where they challenge the experts. She made a ruling on that. And XRP holders got a big victory in that one, by the way. But she ruled on that. And she's had a case where a month after that ruling, she's decided summary judgment. She's had a case where two months after that ruling, she's decided summary judgment.

44:12And she's had a case where it's only been a week. So we're in that zone now. We're about five weeks from the time that she decided that expert issue. That's why I say if we look at her historical history, then we're waiting for decision any time now. May 6th would put us at the 60-day mark. So I think it'll come down before then, but I'm completely guessing because I don't know where her schedule is. I don't know how many other cases she has. I don't know how many decisions. But I will tell you this, Ash, a lot of people are anxious because of this decision. And I went on record to say, think about the pressure that this decision is.

44:53This isn't just about XRP anymore, right? You have 15 amicus briefs, Digital Chamber of Commerce, Coinbase, XRP holders, 70 ,000 plus that we filed, TapJets, which accepts XRP as a currency, iRemit accepts XRP as of currency. And then dozens of others, a dozen other projects, like I said, that or entities that said to the judge, listen, a big, big lot is riding on your decision. You could be handing down the most significant non-fraud SEC enforcement case since the Howey decision in 1946. 46, this impacts global trade and finance like no other decision previous judge. And so there's a lot riding on it.

45:46And I think that she's taking her time. She's historically been a good judge. A lot of people think that because she was appointed by Obama, that therefore she thinks one way. I don't put a lot into that. I think that you base her on her decisions in the past. she has smacked the government down in previous cases when she saw overreach. And I'm hoping we're going to witness that soon. So that's where we are. Boy, that's really an extraordinary statement. This could be the most significant court ruling on securities law here in the United States since the Howey test. Obviously, as you point out, the reason that people are so interested in the Ripple case, obviously people who are interested in Ripple are following it very closely.

46:28But boy, a significant and material impact on the entire state of what's happening in cryptocurrency. And as you point out, implications for what SEC might do next. Talking of which, I wanted to just touch on a story. We hit on this briefly a little bit earlier in the conversation, but it was a story out, I believe, yesterday. This is about SEC's crypto assets and cyber unit. This expansion, pretty significant, was, I believe, 10 people. And now the next announcement was it was going to be doubling, planning to add additional staff. And it looks like they're adding another 40 people over at Crypto Asset Cyber Unit, based on the reporting I've read, at least, if I'm understanding that correctly.

47:11No, you are. I mean, first of all, I think everyone should just pay attention to the title. We have a crypto enforcement division that has been established and designated sort of as a subdivision of the SEC. These are people who are completely 100 percent dedicated every day to crypto enforcement. And a year ago, Gensler doubled it. So because remember, under Jay Clayton and Bill Hinman, there was a strategic financial hub and they had a certain group of people that were for digital assets. Gensler comes in and the first thing he does is double that because he's going for enforcement. And then a year later, he doubles it again.

48:00And so what that signals is that we're not at the peak yet of enforcement. And I know that's going to shock a lot of people, but I think that the Wells notice to Coinbase says it all. Coinbase is the largest exchange in the United States. It's the only publicly traded exchange. It was granted IPO approval when they submitted in 2021, they submitted to the SEC a schedule that documented their business model and how they list assets and how they determine those. All of that, it was given approval. And now we fast forward two years, less than two years after it IPOs, you have a new chairman coming in and saying, we're going to sue you.

48:53You know, the first thing they said is if you offer that Linn product, we're suing you Coinbase back down. And now they've given Coinbase after 30 meetings, 30 meetings that Coinbase has had with the with the SEC. They've been given a Wells notice that they will be sued now. And I believe the suits coming down. In fact, I predicted it on with Charlie Gasparino and Liz Clayman in March of last year. I said, I predict they're going to sue an exchange like Coinbase the way things are headed. Now, our only saving grace, and I don't know if your viewers know this, but the SEC is five commissioners.

49:37And one time, Tony of Thinking Crypto, he was interviewing Hester Peirce. And Tony made the mistake of saying, you know, I know Gary Ginster is your boss. And Hester goes, hey, wait a minute. He's not my boss. He's the chairman, but he's not my boss. Plus, you have five commissioners. They each get a vote. Independent commissioners and independent commissioners. They each have a vote. Now, the chairman is in charge of the money and the agenda. So the chairman is extremely more powerful because he or she dictates the agenda. However, to file a lawsuit against Coinbase, you need three out of the five commissioners to vote yes.

50:21If there were going to be a ripple settlement with the SEC, then they would submit here are the settlement terms to the commissioners and they would vote. And it would require three out of five to vote yes, we want to settle. And so unless Hester Peirce, we have to assume that she's a no on Coinbase lawsuit. And there may be another one that's on her side. So the question is, can Gensler get two other votes out of the other four members? If he can, Coinbase will be sued very in short order. If he can't, then maybe the political tide is changing for him. And so we'll see. John, I'm so glad you provided that context because it's such an important point.

51:10People often talk about or think about the SEC as a monolithic entity headed by a chairman who has sort of the discretion to bring lawsuits at will. I'm so glad you clarified it. It's such an important point. I want you to jump back in to some of our questions. This one comes to us from Paul on the Real Vision website. Boy, this really cuts to the heart of everything that we've been talking about here today, and it's a very big picture question. He says, crypto has stirred up the regulatory beehive, and now the bees are angry and swarming. How long, in your opinion, before this gets worked out and the bees settle down?

51:44Big picture question he's asking, how long are we going to be in this period of kind of constant conversations like this, uncertainty, lots of different enforcement actions happening? How long before we see the bees settle down, in Paul's words? Well, I think that the only thing that's going to pause it could be this decision by Judge Torres. If it is a resounding shutdown of the SEC, and I'm not saying it will be, but if it is, then I think that that's going to send a huge message. But if it's the alternative, if she agrees with the SEC, then I think we're going to see a slew of more enforcements.

52:27Because, Ash, think about it. XRP was the second, well, technically it was the third largest crypto asset by market cap when the lawsuit was filed. It was traded in the United States for seven and a half years. The Government Accountability Office in 2014 called it a virtual currency in a decentralized payment system. It was known of that there was a FinCEN settlement in 2015. The point I'm getting at is if XRP was deemed a security by the judge, if she agrees with it, and it has that kind of history, the third largest, traded for years and years, it implicates so many other tokens. You know, what message does it send to Algo and XLM and Cardano?

53:19Cardano, you just whatever, take the top 10 market caps, right? It would implicate all those tokens. And so I think we would see even more aggressiveness for a couple of years. If the judge shuts the SEC down, I think there'll be a pause. But I think we're looking at a couple years until the election. If there's a change in the Senate, if there's a change in the presidency, see, then Gary Gensler would most likely step down and move on. And then maybe we'll see some kind of activity. So I think we have to assume the next couple of years. Yeah. John, I can't tell you how many questions are coming in right now from the Real Vision website, from YouTube.

54:05By the way, again, if you're watching on YouTube, please go over to realvision.com forward slash crypto to sign up for this. And by the way, if you're enjoying this conversation, tweet it out. Follow Follow me on Twitter at Ash Bennington. Follow Real Vision on Twitter at Real Vision, of course, and tweet this conversation out. We want to get this to as many people as we possibly can because conversations like this are so important. And we really appreciate you joining us, Sean, to talk about these legal regulatory compliance questions in detail that are so important to understand what's happening in crypto today.

54:34John, as I said, we've got so many questions coming in. Maybe we could do a little bit of a speed round here to try and answer some of these quickly, because I know we only have a few minutes left. And there's so many questions that I want to at least touch on. So let's start with a relatively easy one. This comes to us from NK on YouTube. Has it been legally established per regulations or by case law that Coinbase and Binance deposits are protected by the FDIC? As I said, easy one for you. No. Not FDIC protected. And by the way. Not FDIC protected. In fact, one of the outfits got in trouble for implying that their deposit is not Coinbase or Binance, but some other, I forget which one.

55:15Who was it? I forget too, but I remember that. They said there was language in an email or something that suggested that they were FDIC deposits. By the way, if you deal with a bank that has a securities arm, you will see in the securities notification, if you have a brokerage account there, it will say deposits, not FDIC insured or legal language to that effect. So even if you're dealing with a bank that also has a broker-dealer entity, it will tell you, no, these are not FDIC-protected deposits. Those are very narrowly defined terms of art in the banking space, what is and is not FDIC-insured.

55:51Did I get that right, John? You did, and you did. And listen, it's why if one of these exchanges that you're on, if they go bankrupt, you go in line, you get at the back of the line as a general depositor, you know, you'd probably see in a bankruptcy a fraction of, you know, what they call bankruptcy dollars or pennies, you know, pennies on the dollar. Sometimes you get lucky and you get dimes on the dollar. So be careful. You know, listen, I have a Coinbase account. I have an uphold account. So I'm in the same boat. But you definitely want to appreciate the risk that you have. Okay, Bandit8899 on YouTube.

56:34Next question, the speed round. How does staking pass the Howey test? Where is the third party that stakers are relying on for a profit? Well, that's great. And that would be the argument. The argument would be that it does not pass the Howey test because the Howey test relies on the efforts of others. If you really look at the Howey test, it's solely others. But staking, you're the one that is securing the operation and the security of the network. Therefore, you're relying on your own efforts. Some would argue that it doesn't pass that prong. And there's even an argument that you're just offering up as collateral.

57:13There's not even an investment. So the first prong could actually be implicated. But that's a great question. So that would be my answer is that the staker is using his own efforts. Here's a really interesting one. This comes from Revy on YouTube. What does settlement in favor of Ripple categorize all other cryptos as securities? Maybe that might be reversed, a favor settlement against Ripple categorizing other cryptos as securities. And does it get them delisted from exchanges? I mean, this seems like kind of an open question. It certainly seems like if there's a definitive outcome in the Ripple lawsuit that you'd have both sides in this debate publicly arguing that their view, that their interpretation of U.S.

57:53securities laws was correct. But, John, what do you think? Well, according to Ripple, the only way they settle is that, and I don't think it's a matter of how much they pay. The only thing they said that the SEC would have to agree that XRP, ongoing and future sales of XRP, including in the secondary market when I traded or anyone else does from Coinbase or any other exchange, that those are not securities. And unless there's that agreement or that stipulation made, Ripple will not settle. So I don't see the SEC agreeing to that. That's why I don't see a settlement. I see a settlement after a judgment.

58:30So if the judge comes down and she says this or that, or she says there needs to be a jury and this is going to hang on for a couple more years, then maybe the two can get together to come out with some compromise. But at the end of the day, a settlement is just between two parties and doesn't have any precedential effect on other tokens. John, whenever you come on, I can tell that we've got a lot of very sophisticated people, many lawyers, I think, watching this show. This is a sophisticated question from Mike on the Real Vision website. John, is there much support on the Hill to modify Howie?

59:05And then they go on to say, assuming Judge Netburn makes a decision on all issues, not passing anything on to trial, is her decision a final judgment subject to appeal at a higher court? I'll take the second one. Yes, it's not Judge Netburn, Judge Torres. Judge Netburn was the judge to handle the discovery motions. Judge Torres will be the one ruling, and her decision is appealable to the Second Circuit. If she, Ripple's already indicated, if they lose, they're appealing to the Second Circuit. And then, of course, it could go to the Supreme Court, and that's when you would get what's called the Ripple Test that arguably could replace the Howey Test.

59:47Or it wouldn't replace it, it would just be the Ripple Test applied to digital assets, so to speak. What was the first part? I forgot the first part. By the way, I should say that was from Roy on the Real Vision website. The first one was from Mike on the Real Vision website. John, is there much support on the Hill to modify Howie? There is on the Republican side. And a lot of people, and I'm talking to congressmen as well, and we're trying to push for something like what the United Kingdom's Financial Conduct Authority did, where they said, listen, you have three types of tokens. You have a security token, which is a security.

1:00:24You have a utility token and you have an exchange token. And there could be a hybrid. The UK's FCA called XRP a hybrid token acting like an exchange and a utility token together. So there is a way. It's not rocket science. There is a way to come out and say, yes, certain tokenized assets will be securities. And certain tokens will be truly utility or exchange type tokens. But I think this next election, if the crypto voting bloc has an impact, then I see that's when you'll see the tide change. John, we're out of time. I wish we could go for three hours. These conversations are just fabulous. I learned so much talking to you about this.

1:01:12And this is just such an incredibly critical part of the ecosystem today. Final thoughts, key takeaways. I know we've covered a tremendous amount of material here, but what would you like to leave our viewers and listeners with? Well, I only would say this, that if you're not a member of Real Vision, it's free. Become one. They didn't ask me to tell you that, but I've been on a lot of shows. I'm a fan of Real Vision. I'm a fan of yours, Ash. I think the content, when you talk about the broad spectrum of this asset class, that you're a fool if you're not a member of Real Vision. and following you on Twitter or YouTube or wherever else you are.

1:01:51Because I think the content you guys are producing is a real service to the community. Wow, we really appreciate it. And we always appreciate when you join us on this show. Again, as I said, I learned so much. John Deaton, thank you so much for joining us. Thanks, Ash. See you next time. And remember, that's it for today. And if you wouldn't mind, as John suggested, please go over to Real Vision Crypto. It's free, of course. That's realvision.com forward slash crypto. Tomorrow, we have Stefan Klauser from Izot, who will join us for discussion on the convergence of crypto and AI. Obviously, it's just a red hot topic.

1:02:24Another great show back to back here on Real Vision crypto and the digital landscape in Europe, which of course is also an interesting question. Join us live at 9 a.m. Pacific time, noon Eastern or 5 p.m. if you're in London. Thanks for watching, everybody.

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