Andreessen Horowitz and the DeFi Education Fund, two powerful forces in D.C.’s crypto policy scene, formally asked the SEC Wednesday to create a safe harbor that would shield developers of decentralized apps—even those who work at centralized businesses with control over said apps—from legal risk of violating securities laws.
The proposal, if enacted, would ensure that companies and developers creating popular types of decentralized apps (also known as dapps), like decentralized exchanges, self-custodial wallets, and NFT marketplace protocols, are exempt from being labeled broker-dealers by the SEC.
Crucially, even if the apps themselves dealt in the trading of tokenized securities or other securities offerings, they would still be exempt from the SEC’s oversight—so long as they met certain criteria.
Andreessen Horowitz and the DeFi Education Fund, a Washington-based crypto lobbying group, today proposed four qualities an app must possess to enter the safe harbor.
An app would have to be non-custodial, and never take control of user funds; it may use optimization software to recommend cheaper or more efficient transactions, but cannot execute those suggestions without user consent; it must avoid providing investment recommendations; and it should, in most cases, either only interact with protocols that have eliminated operational control, or have “clearly demonstrated [a] good faith to decentralize."
It’s that last prong that, perhaps, would represent the greatest shift from previous SEC policy. Under today’s recommendations, certain centralized entities retaining control over a crypto app might still gain safe harbor, if they are pursuing a longer-term goal of decentralization, and if the total value of assets an app is dealing in falls under a certain threshold. Today’s letter to the SEC did not suggest what such a threshold might be.
The SEC and developers
The SEC has previously pursued legal action against centralized developers of decentralized apps, including Texas-based Consensys, creator of self-custodial Ethereum wallet MetaMask, and Uniswap Labs, the New York-based developer of decentralized exchange Uniswap.
The SEC’s action against Consensys, as an example, argued that the company was illegally acting as an unregistered broker under the definition established in the New Deal-era Securities Exchange Act of 1934. Central to that argument were considerations including whether Consensys was a centralized entity, and whether the app it developed offered securities to customers.
Shortly after the start of President Donald Trump’s second term, the SEC moved to dismiss its cases against Consensys, Uniswap, and every major American crypto company it had previously sued.
In today’s letter to the SEC, Andreessen Horowitz and the DeFi Education Fund said outright that the existing definition of broker-dealer might, in fact, capture some decentralized app developers—but that this should not be an acceptable state of affairs for dapps that meet their safe harbor criteria, and thus, they argue, will not “introduce traditional financial risks.”
“Because they are typically offchain software and products, someone—usually centralized businesses—must operate and control them,” the letter said. “As a result, even if Apps are non-custodial, it is plausible that they could engage in activities and provide services that implicate the risks the broker registration regime is intended to address.”
The letter goes on to argue, though, that forcing young decentralized app startups to eliminate operational control too soon, to avoid SEC jurisdiction, could hamper innovation.
“[I]f projects eliminate operational control too early, investors may be placed at risk through security or other undiscovered vulnerabilities,” the letter continued. “[T]oo strict of an approach[…]could forestall innovation or subject investors to harm—a protocol developer would not be able to utilize an App to enable users to use the protocol or may jeopardize the security of the protocol by rushing to eliminate operational control.”
The SEC’s “Project Crypto”
Today’s recommendation comes in response to recent moves by the White House and the SEC to create new, explicit securities law guidelines and exemptions for digital assets, in the aim of growing the crypto industry domestically.
Late last month, SEC chair Paul Atkins unveiled “Project Crypto”, an aggressive SEC initiative to formally greenlight numerous categories of crypto projects and products as outside the agency’s purview. Atkins said the SEC plans to soon begin offering purpose-fit disclosures, exemptions, and safe harbors to crypto projects that meet certain standards.
“Developers deserve clarity, and our hope in submitting this proposal is to provide front end developers with guidelines enabling them to build without fear of being scoped into unreasonable requirements that are misaligned with the realities of the technology,” Amanda Tuminelli, executive director of the DeFi Education Fund, said today.
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