If SEC classifies ETH as a security, it challenges CFTC’s commodity perspective, says analyst

A recent Fortune report raised eyebrows by suggesting the US Securities and Exchange Commission (SEC) is legally pushing to classify Ethereum as a security. Despite no official confirmation from the SEC, the news is big enough to ignite controversy among financial experts and crypto members. According to Fox News journalist Eleanor Terrett, such a classification would directly challenge the Commodity Futures Trading Commission’s (CFTC) stance on Ethereum as a commodity.

Bringing this back as we talk about the @SECGov’s potential plans for the status of $ETH today.

It’s worth noting that the @CFTC has operated under the notion that $ETH is a commodity for years and has registrants that list ether futures contacts.

If the SEC classifies $ETH a… https://t.co/8P3yUuZ0jz

— Eleanor Terrett (@EleanorTerrett) March 20, 2024

Terrett said in a separate post that if the Fortune report is correct, it explains the SEC’s current inaction on spot Ethereum exchange-traded fund (ETF) applications. She speculated that the SEC might be waiting for the ongoing investigations to conclude before making a decision on these filings.

“If this is true, then it explains why the [SEC] has been so mum with the ETH spot ETF issuers. The [SEC] staff may be waiting for any lingering investigations to wrap before Gary Gensler gives them direction,” stated Terrett.

This potential move is noteworthy considering the SEC’s 2018 declaration under William Hinman, which positioned ETH “outside of the agency’s regulatory purview.” Terrett also noted the possibility of the SEC scrutinizing Ethereum’s Initial Coin Offering (ICO) during its investigation. This aligns with how New York Attorney General Letitia James argued ETH as a security based on its ICO in her lawsuit against the crypto exchange KuCoin.

If @FortuneMagazine’s reporting is correct and the @SECGov is indeed on a campaign to classify $ETH as a security, besides scrutinizing its proof-of-stake model, the regulator may also be looking into the ICO, which the @SECGov itself “put aside” when it said $ETH was not a…

— Eleanor Terrett (@EleanorTerrett) March 20, 2024

Beyond speculation

Classifying ETH as a security would be an aggressive move by the SEC, potentially contradicting its approval of Ethereum Futures ETFs. Moreover, the SEC’s ongoing struggle to define Ripple’s XRP as a security could bode well for the Ethereum team.

Shedding light on the matter, Cinneamhain Ventures partner Adam Cochran argued that there’s a chance the Ethereum Foundation’s way of selling ETH back in the day could be considered illegal under current regulations. However, he added that even if a violation occurred, it’s likely too late to pursue legal action because the statute of limitations has passed.

5/14

There is actually a decent change that the sale of Ethereum by the Ethereum Foundation was structured in a way that could be considered an investment contract sale.

It was in a time when we didn't have a lot of guidance on these matters.

— Adam Cochran (adamscochran.eth) (@adamscochran) March 20, 2024

Cochran also highlighted that the existence of approved Ethereum Futures ETFs suggests regulators already consider ETH a commodity. This creates a potential conflict between government agencies, especially during an election year.

Furthermore, the involvement of major players like BlackRock and Wall Street firms in Ethereum-linked development could throw another wrench into the SEC’s potential regulatory efforts.

Fortune Crypto is currently the only source reporting on a potential SEC investigation. There is a lack of confirmation from other sources and details about the investigation.