Acting SEC Chair Rejects Enforcement—Demands Real Crypto Rules

Acting U.S. Securities and Exchange Commission (SEC) Chairman Mark T. Uyeda led the inaugural session of the agency’s Crypto Task Force roundtable on March 21 in Washington D.C. He used the occasion to urge the Commission to move away from regulation through enforcement when dealing with crypto assets.

Speaking to regulators, legal experts, and market participants, Uyeda argued that the SEC should instead embrace formal rulemaking processes to bring clarity to the digital asset space. He stated:

This approach of using notice-and-comment rulemaking or explaining the Commission’s thought process through releases – rather than through enforcement actions – should have been considered for classifying crypto assets under the federal securities laws.

His remarks set the tone for a roundtable focused on addressing the fragmented legal interpretations that have defined the crypto landscape for years.

Uyeda examined the inconsistent application of the Howey test, the Supreme Court’s 1946 standard for identifying investment contracts, and how those inconsistencies complicate the classification of crypto assets. He cited his own past as Chief Advisor to the California Corporations Commissioner, where he argued a certificate of deposit with an attached bonus qualified as an investment contract—a position the court rejected.

According to Uyeda, the legal community remains divided. Some federal circuits, he noted, require pooling of investor funds and pro rata profit distribution, while others accept a broader interpretation centered on shared risk. There is also disagreement over whether the investor’s gain must stem from post-sale efforts by the promoter or whether significant actions taken before the sale are sufficient to meet Howey’s threshold.

The acting SEC chair noted:

Differences in opinions among various courts is not unusual. After all, a judicial opinion is limited to the particular facts and circumstances of that case.

“When judicial opinions have created uncertainty for market participants in the past, the Commission and its staff have stepped in to provide guidance,” he clarified. Pointing to past instances where the SEC offered guidance to fill legal gaps—such as in the classification of whisky warehouse receipts and condominium sales—Uyeda suggested that the same approach should have been taken with digital assets.

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