This Article analyzes the way the Securities and Exchange Commission (“SEC”) has enforced securities laws with regard to Initial Coin Offerings (“ICOs”). In a speech held in 2016, the U.S. Commodities Futures Trading Commission (“CFTC”) Chairman Christopher Giancarlo emphasized the similarities between the advent of the blockchain technology and the Internet era. He offered the “do no harm” approach as the best way to regulate blockchain technology. The Clinton administration implemented the “do no harm” approach at the beginning of the Internet Era in the 1990s when regulators sought to support technological innovations without stifling them with burdensome rules.
This Article suggests that the SEC adopted a “do no harm approach” and successfully pursued two of its fundamental institutional goals when enforcing securities laws in the context of ICOs: investor protection and preservation of capital formation. After providing a brief description of the basics of ICOs and the way they have evolved in the last two years, this Article examines the transition into a new phase of full enforcement action implemented by the SEC. This shift from inactivity to enforcement was gradual, characterized by clearly identifiable steps. Data on ICOs demonstrates that this rigorous enforcement of securities laws has not damaged the industry in the United States and may suggest that entrepreneurs have adapted to this enforcement approach. By contrast, a lack of enforcement would have probably increased uncertainty to the detriment of investors and entrepreneurs and put the UNITED STATES at a disadvantage in the international arena. Furthermore, this paper emphasizes the importance of pursuing specific goals in the short-to-medium term, particularly in order to make securities regulation uniform and avoid differences at the state and federal levels, as well as to encourage industry authorities such as Self-Regulatory Organizations (SROs) to develop high standards for self-regulation.
From Inactivity to Full Enforcement: The Implementation of the "Do No Harm" Approach in Initial Coin Offerings,
Mich. Tech. L. Rev.
Available at: https://repository.law.umich.edu/mtlr/vol26/iss2/2