The Unintended Consequences of FIT21’s Crypto Market Structure Bill

by the House is a monumental development for the U.S. crypto industry, bringing much-needed regulatory clarity within sight. However, despite its good intentions, FIT21 is fundamentally flawed from a market structure perspective and introduces issues that could have far-reaching unintended consequences if not addressed in future Senate negotiations.Note: The views expressed in this column are those of the author and do not necessarily reflect those of CoinDesk, Inc. or its owners and affiliates.

While the bill helpfully appears to clarify that crypto tokens transferred or sold pursuant to an investment contract do not inherently become securities themselves, it unfortunately contradicts itself by nonetheless giving the SEC plenary authority over such investment contract assets where sold to investors for the time period before a project reaches decentralized Valhalla. Only tokens airdropped or earned by end-users are initially “digital commodities” subject to CFTC jurisdiction.

Implementing such distinctions would likely necessitate technological modifications to crypto tokens to enable buyers to know which type of crypto asset they are receiving such that they may comply with market-specific requirements. Imposing such technological marking on restricted digital assets, even if possible, would create an"American-only" crypto market separate from global digital asset markets, reducing the utility and value of every relevant project.

Developers and investors outside the U.S. are unlikely to self-impose similar restrictions on restricted digital assets. Therefore, new projects and investors will be incentivized to move development and investment outside of the U.S. to avoid these requirements. This would make it extremely difficult to prevent the U.S. digital commodities market from being flooded with non-U.S. tokens that would have been restricted digital assets had they been"issued" in the U.S.

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