I'll start by pointing out that I couldn't find any disclosure as to whether de Gregorio is long or short cryptocurrencies or related companies. So it is safe to assume that he is one of the majority of "crypto experts" Talking Their Book. And that, with typical crypto-bro misogyny, he personifies the villain of the piece (my emphasis):
Letitia James.He correctly stresses the importance of decentralization:
That’s a name that probably won’t mean much to you, but it’s none other than one of the most powerful people in the United States, the New York’s Attorney General.
This woman, from this position of immense power, has filed a lawsuit against KuCoin for failing to register as a broker-dealer for securities and commodities.
As I’ve said many times, any indication that a Crypto project is centralized automatically makes it completely worthless, because the sole concept of blockchains is intrinsically related to the concept of decentralization.Note the implication that a "Crypto project" must be decentralized because otherwise it would be worthless, but you can see that its "market cap" is in the hundreds of millions or even billions of dollars, so it can't be.
Without decentralization, high security and integrity of data are no more, as the ledger relies on its distributed nature to guarantee the high-security thresholds it claims to have.
The reason de Gregorio is worried is that the NYAG's suit claims that the Merge has transformed Ethereum into a security because staking is an investment with a return. He explains the difference (my emphasis):
While PoW blockchains decide what node introduces the next block of transactions (receiving the reward for doing so) by a mathematical guessing competition, PoS decides the next node by random choice, in which the nodes stake their tokens to have a higher chance of being chosen.
But that isn't the case. The "nodes" in a PoW network are the mining pools. What are "mining pools"? Nakamoto's vision was of a large number of roughly equal nodes guessing — "one CPU one vote". Suppose there were 100 of them. The system is designed to generate a new block every 10 minutes. Thus on average a node will receive a block reward about once every 17 hours.
|2 pools control BTC|
The idea of one node per ASIC makes no sense. To average a reward a day now requires about 175,000 ASICs, 99.7% of which will be trashed without ever earning anything. A mining pool is a way to aggregate huge numbers of ASICs into a single node and thereby gain rewards more frequently. ASIC owners pay the pool a fee that trades their chance for a big reward at infrequent random intervals (gambling) for a share in the pool's more frequent, more predictable flow of rewards (investment).
|3 pools control ETH|
de Gregorio introduces the Howey Test, the legal definition of a security:
The decades-old Howey Test consists of three criteria:But he gets it wrong by omitting the fourth prong. It is actually (my emphasis):
- Investment of Money: The first requirement is that the investment involves an exchange of money or something of value.
- Expectation of Profit: The second requirement is that the investment is made with the expectation of earning a profit.
- Common Enterprise: The third requirement is that the investment is made in a common enterprise.
It is completely obvious that staking services and exchange's staking products satisfy the Howey Test. They are common enterprises, to which you give something of value (ETH) in the expectation of profit derived from their running validators and using them to stake ETH including yours. The Kraken exchanges already paid $30M to settle an SEC lawsuit that alleged:
- An investment of money
- In a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
This case concerns the illegal unregistered offer and sale of securities involving the staking of crypto assets. In particular, Defendants have offered and sold an investment contract to the general public, including United States investors, whereby investors transfer certain crypto assets to Kraken for “staking” in exchange for advertised annual investment returns of as much as 21% (the “Kraken Staking Program” or “Program”).A 21% annual return? Surely can't be a scam.
It has been established that Lido and the exchange staking programs are unregistered securities and thus illegal. It seems clear that the fourth prong means if you were to run your own validator staking your own ETH, that would not be a security. But unless you were a whale and could stake a lot of ETH, that would be a lot of hassle for an infreguent reward. Because the Gini coefficients of cryptocurrencies are so extreme (in 2019 Ethereum's was between 0.8 and 0.95), only a very few ETH HODL-ers would take that gamble.
It isn't as obvious that ETH itself satisfies the Howey Test. de Gregorio writes that the NYAG:
argues that the people in the Ethereum Foundation have considerable power over the network and a clear interest in heading the blockchain in a direction that favors them, as they allegedly own considerable amounts of ETH and thus have a clear interest in accruing the value of the token.The NYAG could be much stronger. Clearly, a network controlled by 2 or 3 pools can't actually be called "decentralized". The Lido service and the exchanges have more than "considerable power over the network", they control it. And, just as we saw with the big miners' veto over increasing Bitcoin's block size, the big validators will have a veto over proposals from the Ethereum Foundation.
SEC chair Gary Gensler writes in Getting crypto firms to do their work within the bounds of the law:
The crypto market is no exception. It has many “trusted” — though non-compliant — intermediaries. Today, crypto is dominated by a handful of trading, lending, staking, and other financial intermediaries. The investing public is trusting these entities to be responsible with investors’ assets. According to some data, the three largest crypto trading platforms purportedly account for almost three quarters of all trading volume.So the lack of decentralization is well-known and it isn't just at the blockchain level, as shown by recent DARPA-sponsored research it is at every level of the stack. de Gregorio, the pontificator about cryptocurrencies who stresses the importance of decentralization, is either cynically gaslighting or has drunk the Kool-Aid by not pointing out that these systems are in practice centralized, and in theory must be.
It should not be surprising that the NYAG believes that ETH, backed by an ICO, with a foundation stuffed with whales, and controlled by large staking services, is a security. SEC chair Gensler writes:
We’ve been clear that most crypto tokens that are backed by entrepreneurs, among other features, are likely to be securities. We’ve been clear how lending and staking platforms come under the securities laws. We’ve been clear that platforms listing crypto securities must register with the SEC. Further, the securities laws are clear that these platforms are not to combine functions under a single umbrella that creates conflicts and risks for investors.de Gregorio and others base their case on the fact that back in 2018 the Director of the SEC’s Division of Corporation Finance William Hinman asserted that ETH was not a security because the Ethereum blockchain was "sufficiently decentralized". But Hinman's assertion was false then and is false now. And Hinman now works for A16Z, the "Softbank of crypto". It would be better to listen to the current SEC chair, who is in charge of enforcement, but doing so would "kill Crypto".