The new Congress is looking again at crypto-specific legislation, but Gensler believes that the SEC has all of the legal tools that it needs. Over the course of our discussion, he articulated a straightforward view of the agency’s reach — that pretty much every sort of crypto transaction already falls under the SEC’s jurisdiction except spot transactions in bitcoin itself and the actual purchase or sale of goods or services with cryptocurrencies.
“Everything other than bitcoin,” Gensler told me, “you can find a website, you can find a group of entrepreneurs, they might set up their legal entities in a tax haven offshore, they might have a foundation, they might lawyer it up to try to arbitrage and make it hard jurisdictionally or so forth….”
“They might drop their tokens overseas at first and contend or pretend that it’s going to take six months before they come back to the U.S.,” he continued. “But at the core,” he argued, “these tokens are securities because there’s a group in the middle and the public is anticipating profits based on that group.” The claim that crypto investors are hoping to profit based on the efforts of those intermediaries — in much the same way that stockholders in public companies hope to see their investments appreciate over time — is central to Gensler’s position that, as a legal matter, these are actually transactions in securities that fall within the SEC’s jurisdiction.
Source: Gary Gensler on Meeting With SBF and His Crypto Crackdown