US regulatory uncertainty surrounding Ether is seen by some market observers as damaging the token’s performance compared with a recent rally in Bitcoin.
The ambiguity stems from whether the US Securities and Exchange Commission will add Ether to a growing list of digital assets it deems to be unregistered securities, a designation that can make the tokens harder to trade. Bitcoin is treated as a commodity in the US rather than a security, helping to clarify its status.
The SEC this month labeled 19 coins unregistered securities in lawsuits against the Binance Holdings Ltd. and Coinbase Global Inc. crypto exchanges. Some of those tokens have plunged over 20% since the first legal action hit on June 5.
Ether — the second-largest crypto coin — is little changed over the same period whereas top-ranked Bitcoin has jumped around 14%. The latter likely reflects investor flight from regulatory risk as well as exuberance that proposed Bitcoin exchange-traded funds from BlackRock Inc. and others herald new sources of demand. Even so, both are up significantly this year, with Bitcoin almost doubling and Ether surging around 60%.
“I don’t know what rationale the SEC used to name these tokens” in their lawsuits, said David Lawant, the head of research at digital-asset trading platform FalconX. The fact Ether wasn’t mentioned “doesn’t mean that the asset is in the clear,” he added.
The SEC hinted that under its new proof of stake model Ethereum’s native token Ether might be categorized as a security and soon after the regulator suggested that US had jurisdiction over the blockchain and even the New York Attorney General’s office called Ether a security in a compliant filed against crypto exchange KuCoin.
While the SEC has not explicitly named Ethereum, the blockchain and its token has similar origins as some of the 19 tokens recently signaled out. Solana and Cardano are based on the same proof-of-stake mechanism. Polygon’s MATIC is a Ether scaling token, while AXS and SAND are play-to-earn tokens built on Ethereum during the ICO boom.
If Ethereum was relaunched today, it would encounter regulatory headwinds, but since it has passed into common use, and a long time has elapsed since the initial sale, that enforcement action against Ethereum itself would be unlikely in any event, Preston Byrne, a partner at the law firm Brown Rudnick, wrote in an email.
“There is a possibility that Ethereum might be deemed a security for the purposes of certain secondary transactions,” Byrne said. “At the end of the day, the SEC can allege whatever it wants but it is for a court, not the commission, to determine whether Ethereum is a security or not. My suspicion is that if that were going to happen, it would have already.”
Ether staking services have been named in the SEC suits, and as Coinbase and Binance represent a significant portion of that staking, it could explain some of the caution regarding Ether at the moment, said Riyad Carey, a research analyst at Kaiko.
“The SEC does not necessarily need to name every crypto asset they deem a security to make their case in these proceedings, so they don’t benefit from getting into the murkier discussion about whether ETH is a security in this context,” FalconX’s Lawant said.