SEC v. EtherDelta {Big Picture}

Crypto for Regulators (CfR), Part 3 — Individual Liability

SEC’s newly created cyber unit, Robert Cohn [sic, Robert Cohen], exclusively told Forbes that using any blockchain to create an exchange without central operations doesn’t remove the original creator’s responsibility.

Regulate the Chainsmith; Not the Chain

From the SEC’s perspective, going after individuals is a no-brainer. Exerting enforcement authority over individuals who create security token exchanges without registering with the SEC (or qualifying for an exemption) is a very effective way of policing.

Over an 18-month period, EtherDelta’s users executed more than 3.6 million orders for ERC20 tokens, including tokens that are securities under the federal securities laws.

What’s the penalty for this? In the words of the SEC, again:

Without admitting or denying the findings, Coburn consented to the order and agreed to pay $300,000 in disgorgement plus $13,000 in prejudgment interest and a $75,000 penalty.

The penalty and disgorgement amounts seem extremely low. This suggests the monetary awards are meant to send a message regarding enforce-ability, as opposed to penalizing experimentation.

Why Is SEC Targeting CryptoCats?

Traditionally, the SEC would go after both the exchange and any individuals operating an unregistered exchange. In this case, the SEC pursued an investigation and prosecution of an individual to protect investors trading on an exchange. Among other frameworks, we can analyze this decision to go after individuals on (1) prudential, (2) technical, (3) liability limitation; (4) precedent grounds.

1. Prudential Considerations

Putting aside the substance/merits of the dispute, the big picture takeaway from this enforcement action is that enforcement against individuals is in many ways more advantageous than enforcement actions against corporate forms. Here’s why:

Corporations can engage in jurisdiction shopping and asset shifting. They can remain immune to U.S. enforcement reach indefinitely. Individuals will want to go back to the United States. When they do, a judicial judgment or administrative sanction against an individual can serve as an extremely effective lever of influence over the corporate form.

The best way to illustrate the lever of influence that the U.S. government has over individuals is to recall the plot line of the 2010 blockbuster, Inception. The central premise of the film is a hacker who gets in trouble with the federales, leaving him permanently exiled abroad. His kids are in the U.S. So Leonardo di Caprio will do everything possible — including the most dangerous hack ever attempted — to get back across the border.

2. Technical Considerations

A decentralized exchange (“DEX”) running on, say, the Ethereum network is, technically speaking, just code that’s running on nodes all over the Ethereum network. In these cases, going after the “exchange” itself is difficult because the exchange, by design, is distributed. Risk is diffused. Points of failure are minimized.

3. Liability Limitation Considerations

In many ways, applying en-force-ment levers directly on an individual behind an exchange is an even far more effective enforcement tactic than just going after a corporate entity.

You can’t imprison a corporation; but you can imprison a CEO. So the threat of individual criminal or prolonged civil/administrative enforcement is a very strong compliance stick.

The corporate form would give the owners common law and statutory protection from liability. With personal liability, by contrast, there’s not even a veil of protection.

4. Precedent

Going after individuals is consistent with other multi-agency enforcement actions, such as the prosecution of Dread Pirate Roberts (aka Ross Ulbricht) for operation of the Silk Road marketplace.

What’s Next?

A number of observers predict that future DEX operators will now be incentivized to launch their decentralized exchanges anonymously. Other developers note that this is par for the course for the SEC, and that more engagement with regulators is necessary not less.

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CleanApp

Small NGO with a big patent urging BigTech & Crypto to enable trash/hazard reporting & open source data. "The Wi-Fi & Bluetooth of TrashTech" - cleanapp.io.

Crypto Law Review

A journal pushing the bounds of our legal imaginaries, on-chain, off-chain, and against the chain.