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Not Understanding what a Ledger Is
This is perhaps the most obvious, most odious, and most simply dumb thing the SEC did. They looked at a blockchain and said "ah, okay, obviously everything recorded on a blockchain is a security". For those of us who understand what a blockchain is, this raises a lot of questions. For those who don't understand what a blockchain is, I'm going to tell you what it is, and then you're going to have the same questions:
A blockchain is an electronic ledger.
Yes, there's more to it than just that, but honestly? Not that much more. It's an electronic ledger with some special properties about how you write entries and how we agree things exist on the ledger, but it is just a ledger in the end. So if you are re-reading that previous statement and going wait, does that mean the SEC essentially said "Everything recorded in Microsoft Access is a security" if you know to replace one type of ledger with another ledger then what I say to you is this: yes, literally that.
The correct understanding is obviously that the core economic substance of the thing is what determines if something is a security. There cannot and should not be a way for me to take Apple (AAPL) shares and put them on a different ledger and desecuritize them, nor a way for me to take a literal physical Apple and record it on a ledger and turn it into a security. The ledger is not the important part here. AAPL is a security and a literal apple is a food. The ledger is not the important part!
This colossal mistake naturally leads to a lot of totally broken outcomes if this is the place you start with. You can see this in Gensler's own Congressional testimony, where when confronted by
@RitchieTorres on this exact issue regarding Pokemon cards, he actually answers under oath that
yes, it's possible recording a Pokemon card on a blockchain makes it a security and needs more information.
I want to be clear: this was the actual, literal belief of the SEC that they were operating with for four years. That if I tokenized a rock, or a pokemon card, or a painting, it somehow magically transformed into a security. ...