Unchained

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

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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
    • Thank you to our sponsors!
    • Crypto.com
    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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          UnchainedBy Laura Shin