The regulators have awoken. SEC Director William Hinman introduced novel concepts to the securities law analysis such that sellers of digital assets may have an escape valve. Yes, even if their initial sale triggered securities laws, later sales may not. The industry should not move forward without careful exploration of these concepts.
First order of business: Can digital assets change their colors? As outlined by Global Digital Finance, a digital asset can be a financial asset token (potentially coded as a security), a payment token (Hinman used the term “coin”), or a consumer token (Hinman used the term “token”). The relevant question is not whether an asset can change its token type, but whether the latter two types — a “coin” or “token” in Hinman’s words — can ever become securities.