Trotting Out the White Horse: How the S.E.C. Can Handle Bitcoin’s Threat to American Investors
Syracuse Law Review
Bitcoin has entered the kingdom to stay, yet few are willing to shield its most likely victims.
The cryptocurrency is a mysterious amalgam of technology, transparency, and secrecy. Despite its initial mission of bypassing commercial fees, the currency alternative, presently valued at over $400 a coin, is a more likely candidate for hoarding and speculation. Surprisingly, while its brazen use to facilitate money laundering and drug purchases have been met with prosecution and headlines, Bitcoin’s everyday rapidly growing appeal to investors has been left largely unaddressed.
As an investment, Bitcoin’s chief marketing tool appears to be conversion mechanisms declaring themselves “exchanges” (i.e., scores of websites that offer to buy or trade Bitcoins for American dollars or Euros). Such platforms have proven to be vulnerable portals at best - in one hacking incident alone, over $400 million in Bitcoins was lost and never recovered. Since 2012, numerous other “exchanges” have been victimized or simply gone out of business, often in similarly spectacular fashion.
To be sure, as a coin of the realm, Bitcoin has temporarily outpaced regulation tolerant of fiat currencies. As a means of barter, the tool will likely end up suffering from deflation caused by its self-imposed volume limit. But as an investment, Bitcoin poses an immediate and continuing threat to investors of every age and nationality. Meanwhile, federal regulators in the United States debate which - if any - of the watchdogs can best prevent the most damaging of its potential ills. The debate is slowed by differing definitions of Bitcoin as a currency or property.
Accordingly, this Article posits that effective and much-needed regulation is easily within the mighty reach of the Securities and Exchange Commission. Relying on statutes, case law, treatises, agency press releases, government studies and legal commentary, the Article conducts a layered review of potential applications of securities law to Bitcoin transactions. The Article concludes that too many Bitcoin “exchanges” make offers of unregistered securities that can and need be policed. Such declaration would subject such entities to S.E.C. registration - thus validating legitimate market makers willing to share the American notion of disclosure while “weeding out” the transient entities with hidden agendas.
Overall, the Article simply asks that the world’s foremost securities regulator to treat Bitcoin as any other investment, and its chief conduit like any other promoter. Various States have already taken action to regulate the unforeseen speculation in Bitcoin. And the private lawsuits have commenced, ensuring that - for better or worse - relevant definitions shall begin to crystallize. The S.E.C. need not watch this battle from afar, and investors worldwide would benefit greatly from the strongest watchdog agency in the world once again coming to the rescue of the uninformed.
J. Scott Colesanti,
Trotting Out the White Horse: How the S.E.C. Can Handle Bitcoin’s Threat to American Investors, 65 Syracuse L. Rev. 1
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/677