A well-known advocate in the cryptocurrency community, John E. Deaton, has strongly criticized the conflation of crypto assets with securities in investment contract cases. In a statement on social media platform X on Thursday, he addressed the Financial Industry Regulatory Authority (FINRA)’s newly released guide on classifying crypto assets as securities, stating:

The underlying asset utilized in an ‘investment contract’ is never itself the security.

Deaton, a former U.S. Marine and attorney specializing in cryptocurrency law, rose to prominence by representing XRP holders in the SEC’s lawsuit against Ripple Labs and advocating for clearer crypto regulations. He recently ran unsuccessfully for a U.S. Senate seat, challenging incumbent Senator Elizabeth Warren.

He used various examples to illustrate that the assets involved in investment contracts are not inherently securities. He pointed out that orange groves, beavers, gold, and condominiums have all been marketed within investment contracts but remain distinct physical or tangible items. “Gold has been packaged, marketed, offered and sold in an investment contract (security) but it still remained gold that could be melted into jewelry and never itself a security,” he said. Similarly, he noted that bitcoin (BTC), GRAM tokens, and XRP have been part of investment contracts yet are not securities themselves. “BTC was once packaged, marketed, offered and sold in an investment contract (security) — but it was still just BTC,” he emphasized.

Deaton noted that courts have explicitly ruled that XRP is not inherently a security, even if it has been sold as part of an investment contract under specific circumstances. He explained that in the case of the SEC v. Ripple:

Judge Torres agreed and specifically held that although XRP could be offered as a security under certain circumstances … XRP itself is not a security.

Gary Gensler, Chair of the U.S. Securities and Exchange Commission (SEC), has consistently stated that bitcoin is not a security, classifying it as a commodity. However, he has refrained from providing a definitive stance on ether’s status, often deferring on the question of whether it is a security or a commodity. This ambiguity has led to ongoing debates within the cryptocurrency community and among regulators regarding the appropriate classification and regulatory approach for ethereum and other digital assets.

Deaton called on leadership at the SEC to address this ongoing misrepresentation. His argument underscores the distinction between the underlying assets and the contracts used to market them, urging regulators to clarify the issue and avoid treating all assets within such arrangements as securities.

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