Максин Уотерс: слушания SEC и угрозы для криптоактивов

Regulatory uncertainty in the US has reached a critical point: upcoming hearings on SEC actions and the unresolved fate of the FIT21 bill create direct risks for crypto assets. Investors urgently need to revise their storage and risk management strategies to protect capital from potential freezes, delistings, and legal consequences. In this article, we will analyze key threats and offer a specific plan of action.

Conflict of Regulatory Approaches: SEC vs. FIT21

The SEC's Position: "Regulation by Enforcement"

The Securities and Exchange Commission (SEC), under the leadership of Gary Gensler, adheres to a strategy of applying existing securities laws to crypto assets through lawsuits rather than developing new rules. Critics, including Congresswoman Maxine Waters, are calling for an oversight hearing on the Commission's activities in early 2025 [1].

Legal Basis: The Howey Test

SEC actions rely on the Howey Test—a legal standard established by the US Supreme Court in 1946. It determines whether a transaction is an "investment contract" (a security) based on four criteria:

An investment of money.
In a common enterprise.
With an expectation of profit.
To be derived predominantly from the efforts of others.

The SEC argues that most crypto assets, excluding Bitcoin, meet these criteria because investors buy tokens expecting their value to increase due to the work of a development team, foundation, or other centralized entity.

Opponents of this position, including representatives of the crypto industry, argue that in decentralized networks (such as Ethereum after the transition to Proof-of-Stake), the "efforts of others" criterion is not met since the network is maintained by many independent participants.

Examples of Enforcement:

SEC v. Ripple (XRP): In this landmark case, the court ruled that direct sales of XRP to institutional investors were sales of securities, while sales on the secondary market (exchanges) were not. This created an important, albeit controversial, precedent.
SEC v. Coinbase and Binance: In lawsuits filed in June 2023, the SEC accused the largest exchanges of operating as unregistered securities brokers, listing dozens of tokens (including SOL, ADA, MATIC) as examples [2, 3].

"The SEC continues to insist that the rules are clear, even though they are not. Applying 80-year-old laws to fundamentally new technologies is a path to stagnation," comments Jake Chervinsky, Chief Legal Officer at Variant Fund.

Legislative Response: The FIT21 Bill

As an alternative to the SEC's approach, on May 22, 2024, the House of Representatives passed the Financial Innovation and Technology for the 21st Century Act (FIT21). As of November 2024, the document is under consideration in the Senate, where its prospects remain uncertain [4].

Key Provisions for Investors:

Division of Authority: The bill transfers oversight of "digital commodities" to the Commodity Futures Trading Commission (CFTC), leaving the SEC with control only over assets that are securities.
Decentralization Criterion: It introduces a clear mechanism for determining when a network becomes sufficiently decentralized for its native token to be considered a commodity rather than a security. This is the primary change that could remove most crypto assets from SEC jurisdiction.

Market Consequences: Delistings and Liquidity Decline

Regulatory pressure has already led to tangible consequences:

Delistings and reduced liquidity. Following the SEC lawsuits, American platforms began preemptively delisting tokens mentioned in the filings. For example, on June 9, 2023, Robinhood announced the delisting of Cardano (ADA), Polygon (MATIC), and Solana (SOL). According to a July 2023 Kaiko analytical report, market depth for these tokens on US exchanges decreased by an average of 45% within a month of the lawsuits.
Capital and talent flight. The "State of Crypto 2024" report by venture capital firm a16z Crypto notes that the share of Web3 developers in the US fell from 40% in 2018 to 26% in 2023. Startups and investments are shifting to jurisdictions with clearer regulations, such as the UAE, Singapore, and EU countries (under the MiCA regulation).

Practical Steps for Asset Protection

Priority 1 (Urgent and Mandatory): Move Assets to Non-Custodial Wallets

Storing funds on centralized exchanges, especially those under investigation, carries the risk of them being frozen. Non-custodial wallets (hardware or software) give you full control over your private keys.

Actions:
1. Choose your wallets: Use a combination: a hardware wallet (Ledger, Trezor) for long-term storage ("cold") and a software wallet (MetaMask, Trust Wallet) for operational transactions.
2. Create a secure backup: Write down your seed phrase on paper or a metal plate. Store copies in several secure, geographically separated locations.
3. Use Multi-signature (multisig): For large amounts, set up a multisig wallet (e.g., Safe). It requires multiple keys to confirm a transaction, protecting against a single point of failure.
Complexity: Medium.
Costs: From $0 (software wallets) to $150+ (hardware).
Warning: Never enter your seed phrase on websites and do not store it digitally. A common scam involves phishing sites that mimic a wallet interface for "access recovery." When using multisig, the key risk is the simultaneous loss of access to multiple devices/keys.

Priority 2 (Regular Practice): Check Addresses for AML Risks

Interacting with addresses flagged as linked to illegal activity (e.g., the Tornado Cash mixer, which fell under OFAC sanctions [5]) can lead to your funds being blocked on exchanges.

Actions: Before receiving or sending funds, check counterparty addresses using AML services (Chainalysis, Elliptic) or analyze their history through block explorers (Etherscan, Solscan).
Complexity: Low.
Costs: Free for basic checks.

Example AML tools: Chainalysis, Elliptic, and public explorers like Etherscan, Solscan.
For basic risk checks, you may also use services such as this AML checker.

Priority 3 (Optional): Insurance and Inheritance Planning

Actions:
1. DeFi Insurance: Use decentralized protocols (e.g., Nexus Mutual) to insure funds in smart contracts against hacks.
2. Inheritance: Plan a mechanism for transferring access to assets. Consider a Shamir’s Secret Sharing scheme or specialized services.
Complexity: High.
Costs: Depend on the amount and terms.

Important Note on Taxes: Depending on the jurisdiction, certain operations (e.g., exchanging one token for another via a bridge) may be considered a taxable event. Transferring assets between your own wallets usually is not. It is strongly recommended to consult with a tax professional in your country.

Forecast and Scenarios for 2025

1. Maintenance of the Status Quo (Probability: High)

Reasoning: Deep political division in the Senate makes passing comprehensive legislation difficult. The SEC will maintain its pressure levers.
Consequences: Continuation of "regulation by enforcement," risks of delisting new tokens, and continued high demand for self-custody of assets.

2. Partial Regulatory Compromises (Probability: Medium)

Reasoning: Pressure from the industry and Congress may force the SEC to issue clarifications on specific, less controversial issues (e.g., the status of stablecoins).
Consequences: Reduced uncertainty for specific asset classes, but the general problem of classifying most tokens will remain unresolved.

3. Adoption of FIT21 or Equivalent (Probability: Low)

Reasoning: Passing the bill in the Senate requires broad bipartisan support, which does not exist at the moment. The White House has also expressed concerns about the bill.
Consequences: If passed, this would be a "bullish" signal for the market, as most tokens would move into the commodity category under CFTC oversight, removing the main legal risk.

Key Takeaways

US regulatory uncertainty will persist in 2025. The conflict between the SEC’s approach and legislative initiatives remains the primary risk factor.
Self-custody of assets is the foundation of security. Using non-custodial wallets with multisig and secure key storage is becoming a mandatory practice for capital protection.
The outcome of SEC lawsuits against Coinbase and Binance will set precedents. These decisions will have a long-term impact on the rules for the entire crypto market within the US and beyond.

Sources

This article does not constitute legal or financial advice. It is recommended to consult with relevant professionals before making investment decisions.

Maxine Waters, SEC hearings and the risk of crypto assets