In the midst of the ongoing legal skirmishes between the U.S. Securities and Exchange Commission (SEC) and the cryptocurrency industry, Joseph Lubin, co-founder of Ethereum, remains unbothered. Lubin, who also serves as the CEO of ConsenSys, the blockchain-based financial infrastructure company, expressed his views on the regulatory status of Ether (ETH), the native cryptocurrency of the Ethereum platform, during a recent interview with CNBC.

When asked what he would say to regulators who argue that Ether is a security, Lubin didn’t mince words. 

“The SEC has spoken,” Lubin underscored. “The SEC actually spoke, the CFTC has spoken very crisply [..] a number of times that they consider Ether a commodity, and not a security.” 

To contextualize his response, Lubin referred to the recent release of a trove of digital documents pertaining to a 2018 speech given by former SEC director William Hinman. The documents, which later became known as the Hinman emails, revealed that the director did not consider Ether a security at the time and furthermore disclosed a wide range of shifting and contradictory opinions on the matter within the SEC’s own walls. 

“It’s really a forgone conclusion at this point,” Lubin elaborated. “There may be a regulator or two in the United States that can’t bring himself to utter the fact that Ether is not a security, but I don’t know why that’s the case. And ultimately, that just doesn’t matter.” 

The reference to “a regulator or two” was a thinly-veiled parting shot at SEC Chairman Gary Gensler, who has led what many have deemed a “regulation by enforcement” approach to the crypto industry in the United States.

The securities classification roller coaster

Securities are financial instruments often associated with investment contracts, while commodities are basic or raw goods, such as gold, wheat, or cattle. Lubin is neither the first nor the only to argue Ether’s commodity status; Commodity Futures Trading Commission (CFTC) Chairman Rostin Behnam has expressed a similar viewpoint, stating that while many cryptocurrencies are securities, the top three assets  — Bitcoin (BTC), Ethereum, and Tether (USDT) — should fall under the CFTC’s jurisdiction as commodities.

Chairman Gensler’s public statements, on the other hand, have only explicitly classified Bitcoin as a commodity, though he has remained reticent on the subject of Ether’s classification. Some of his lectures from his tenure as an MIT professor suggest that he once considered Ether a security, while others imply that he believed it had transitioned from a security to a commodity by 2018.

The ambiguity surrounding Ether’s classification has prompted members of Congress, including Cynthia Lummis and Kirsten Gillibrand, to draft legislation to clarify the issue. They have expressed agreement with the CFTC’s view that Ether, like Bitcoin, is a commodity.

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