Statement on the Financial Innovation and Technology for the 21st Century Act

The Financial Innovation and Technology for the 21st Century Act (“FIT 21”) would create new regulatory gaps and undermine decades of precedent regarding the oversight of investment contracts, putting investors and capital markets at immeasurable risk.

First, the bill would remove investment contracts that are recorded on a blockchain from the statutory definition of securities and the time-tested protections of much of the federal securities laws.

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Second, the bill allows issuers of crypto investment contracts to self-certify that their products are a “decentralized” system and then be deemed a special class of “digital commodities” and thus not subject to SEC oversight. Whether something is a “digital commodity” would be subject to self-certification by “any person” that files a certification.

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Third, the bill’s regulatory structure abandons the Supreme Court’s long-standing Howey test that considers the economic realities of an investment to determine whether it is subject to the securities laws. Instead, the bill makes that determination based on labels and the accounting ledger used to record transactions. It is akin to determining the level of investor protection based on whether a transaction is recorded in a notebook or a software database….

Source: Statement on the Financial Innovation and Technology for the 21st Century Act