@Brett_FTXUS First, I dislike when others interpret my views in a way that I didn’t intend them to be interpreted. It seems I unintentionally did that with you, so apologies. I read your thread as wanting an outcome but it appears you laid out what you believe is the likely outcome. My bad.
@Brett_FTXUS (Note that a lot of what you seem to think I was attributing to you was simply my view of the positions people who support permissioned DeFi take rather than your view of permissioned DeFi, though I guess it came across as me implying you had many of those views.)
@Brett_FTXUS Second, I do believe that conveying an acceptable view of permissioned DeFi, especially one that is premised on the likely outcome of legal/policy issues, harms permissionless DeFi. People read what someone respectable like yourself writes and follow it to the logical conclusion.
@Brett_FTXUS The logical conclusion here is that permissioned DeFi is the right DeFi policy choice w/o harming the true nature of DeFi, including its benefits. But, as I laid out, permissioned DeFi cannot fulfill the promise of DeFi, though certain aspects of it may be better than CeFi.
@Brett_FTXUS Third, we seem to have different views on the likelihood of permissioned DeFi being needed. The safe bet is that it will required but I think that with sufficient education and effort policymakers will understand permissioned DeFi is unnecessary and hurts consumers and investors
@Brett_FTXUS Fourth, we are 100% in agreement that it is worth discussing the likelihood of future DeFi regulation, and I don’t want to chill those discussions. I look forward to seeing more of your thoughts on it.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
1. I respectfully, strongly disagree with this take on permissioned DeFi, which is plain wrong in many respects. Permissioned DeFi is not required under law or desirable as a policy matter. A thread.
2. Let’s start with the benefits of DeFi:
- Permissionless
- Censorship-resistant
- Trust minimized
- Transparent
- Composable
- Efficient
- Secure personal data
3. Permissioned DeFi strips away each of those benefits:
- Permissionless -> permissioned
- Censorship-resistant -> censorable
- Trust minimized -> trust necessary
- Transparent -> opaque
- Composable -> siloed
- Efficient -> inefficient
- Secure personal data -> honeypot of data
26/
g. Issue a token with some use case on an already developed network and no actual or implied economic interest and the issuer neither takes any steps nor supports listing the token on an exchange.
27/
h. Issue a token distributed based only on price and/or quantity needed to use the protocol and not distributing tokens in excess of those needed for that use.
28/
i. Issue a token used only in a protocol that increases and decreases in value based on the change in prices of goods available in that network.
Below I lay out areas where the Howey test is unclear and requires stepping close to the line. A 🧵
2/ Ambiguity #1: Does the issuer need to receive a benefit from the issuance for an investment of money or does the token recipient need to give up something of value? Courts have addressed it only tangentially and SEC commingles "investment of money" with a “sale.”
3/ Ambiguity #2: The SEC doesn’t believe common enterprise is a factor to consider. Courts disagree as they always look at whether there is a common enterprise. What a mess! Worth noting that courts use three different common enterprise tests, so each needs to be analyzed.
1/ Although I have views on much of Gensler’s speech today (sec.gov/news/speech/ge…), one aspect of it is highly problematic. A 🧵
2/ He says: “if you’re asking a lawyer … if something is over the line, maybe it’s time to step back from the line. Remember that going right up to the edge of a rule or searching for some ambiguity in the text or a footnote may not be consistent with the law or its purpose.”
3/ I’m tempted to mock that statement but being serious for a moment, it’s a real problem. Economic realities are important but so are legal realities. The legal reality is that each Howey and Reves analysis requires questioning whether something is over the line.
1. The White House's stablecoin report from the President's Working Group on Financial Markets was released today and touches on many important issues related to stablecoins with some discussion of DeFi. 👇
2. Some meaningful language: "[m]uch of the trading, lending, and borrowing activity currently fueled by stablecoins on digital asset trading platforms and within DeFi similarly may constitute securities and/or derivatives transactions...."
3. Based on what we know about the SEC's investigations into DeFi and Gensler's certain influence on this report, this language isn't surprising. It does not reveal much other than a lot of thought needs to be put into the design of DeFi protocols.
1/ FATF published its recommendations. It's so bad that it makes the infrastructure bill look reasonable.
TLDR: Only permissioned DeFi is allowed. An intermediary must be inserted to serve as a VASP. The global impact of these recommendations is an attempted kill shot at DeFi.
2/ Several takes today reflect less concern because they are not focused on DeFi in particular. When looking at DeFi, it is clear that the implications are brutal. They start out ok and then it gets worse from there. fatf-gafi.org/media/fatf/doc…
3/ Paragraphs 58-61 provide definitions particularly relevant for DeFi. These terms were had been used in prior guidance but were not defined, so they could be interpreted broadly. Other than the use of "active facilitation" in the definition of "conducts," they aren't horrible.