July 25 2017

"Whether or not a particular transaction involves the offer and sale of a security -- regardless of the terminology used -- will depend on the FACTS AND CIRCUMSTANCES, including the economic realities of the transaction."

https://www.sec.gov/litigation/investreport/34-81207.pdf

June 14 2018

"I would like to emphasize that the analysis of whether something is a security is not static and DOES NOT STRICTLY INHERE TO THE INSTRUMENT.[10] Even digital assets with utility that function solely as a means of exchange in a decentralized network could be packaged and sold as an investment strategy that can be a security. If a promoter were to place Bitcoin in a fund or trust and sell interests, it would create a new security. Similarly, investment contracts can be made out of virtually any asset (including virtual assets), provided the investor is reasonably expecting profits from the promoter's efforts."

Further...

"[1] The Securities and Exchange Commission disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This speech expresses the author's views and does not necessarily reflect those of the Commission, the Commissioners or other members of the staff."

https://www.sec.gov/news/speech/speech-hinman-061418

Fall 2018

40:20 Gensler says ETH "passed the Howey Test", i.e., it is a security.
46:04 Gensler says XRP is a security.

https://ia903107.us.archive.org/23/items/MIT15.S12F18/MIT15_...

March 7 2019

"Your letter also asks whether I agree with certain statements concerning digital tokens in Director Hinman's June 2018 speech. I agree that the analysis of whether a digital asset is offered or sold as a security is not static and does not strictly inhere to the instrument."

April 6 2021

https://coincenter.org/files/2019-03/clayton-token-response....

"MR. BLISS: So I want to make clear that this is my understanding of the current situation and I don't want to be overly technical but the SEC, itself, my understanding, it has not taken an official position. There is no action that it took to say Bitcoin is not a security, Ether is not a security. Now, there was a speech by a high-ranking person who said that to him that's what it looked like but there has been no action letter, no enforcement action, none of the official ways in which the SEC takes a position on that matter that has occurred. What I understand defendants to be referencing is the speech by Mr. Hinman which is not an official statement of the Securities and Exchange Commission itself."

https://www.crypto-law.us/wp-content/uploads/2021/04/210406_...

June 23 2021

"11. On June 14, 2018, I delivered a public speech entitled "Digital Asset Transactions: When Howey Met Gary (Plastic)" (the "Speech"). I began the speech with the following disclaimer: "My remarks are mine alone, not necessarily those of the Commission, the Commissioners, or the staff." The text of the Speech, which is publically available on the Commission's website, contains a similar disclaimer: "The Securities and Exchange Commission disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This speech expresses the author's views and does not necessarily reflect those of the Commission, the Commissioners or other members of the staff.""

"13. The Speech was intended to express my own personal views. During my preparation of the Speech, I discussed my thoughts with other Commission employees, as part of the Commission's ongoing deliberations about whether offers and sales of Ether constituted securities transactions. To the best of my knowledge, the Commission had not taken at that time, and still has not taken, any position or expressed a view as to whether offers and sales of Ether constituted offers and sales of securities."

https://www.docketalarm.com/cases/New_York_Southern_District...

April 4 2022

"We already have robust ways to protect investors trading on platforms. And we have robust ways to protect investors when entrepreneurs want to raise money from the public.

We ought to apply these same protections in the crypto markets. Let's not risk undermining 90 years of securities laws and create some regulatory arbitrage or loopholes."

https://www.sec.gov/news/speech/gensler-remarks-crypto-marke...

The quesion no one is willing to ask or answer is: With all their financial and legal resources, why are crypto issuers so reluctant to file registration statements?