Blackrock’s Spot Bitcoin ETF Filing Update Addresses Potential Classification of BTC as a Security by SEC

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Blackrock, the world’s largest asset manager, has warned in its latest spot bitcoin exchange-traded fund (ETF) filing update of the potential for bitcoin to be classified as a security by the U.S. Securities and Exchange Commission (SEC), state regulators, or court rulings. “If a digital asset is determined or asserted to be a security, it is likely to become difficult or impossible for the digital asset to be traded, cleared or custodied in the United States through the same channels used by non‑security digital assets,” Blackrock cautioned.

Bitcoin’s Potential Security Status

Blackrock, the world’s largest asset manager, addressed the possibility of bitcoin being classified as a security in its latest amended application for a spot bitcoin exchange-traded fund (ETF), filed with the U.S. Securities and Exchange Commission (SEC) on Monday. The new filing update details:

Any enforcement action by the SEC or a state securities regulator asserting that bitcoin is a security, or a court decision, to that effect would be expected to have an immediate material adverse impact on the trading value of bitcoin, as well as the [spot bitcoin ETF] shares.

“If a digital asset is determined or asserted to be a security, it is likely to become difficult or impossible for the digital asset to be traded, cleared or custodied in the United States through the same channels used by non‑security digital assets, which in addition to materially and adversely affecting the trading value of the digital asset is likely to significantly impact its liquidity and market participants’ ability to convert the digital asset into U.S. dollars,” the filing adds.

Blackrock brought up the example of the SEC suing Ripple and its executives over the sales of XRP. “In the years prior to the SEC’s action, XRP’s market capitalization at times reached over $100 billion. However, in the weeks following the SEC’s complaint, XRP’s market capitalization fell to less than $10 billion,” the asset management firm noted.

Commenting on Blackrock’s warning about the possibility of bitcoin being considered a security, commercial litigator Joe Carlasare wrote on X on Tuesday:

Interesting update to Blackrock / Ishares S-1 filing regarding the concern that the SEC could take an approach that bitcoin is a potential security. Seems silly, but apparently the SEC wants that language in there.

He clarified that this wording is only in Blackrock’s most recent amendment. “Prior versions didn’t have it,” he pointed out, emphasizing that “it has been adopted by Blackrock as a potential disclosed risk for ETF investors.”

Responding to Carlasare’s assertion that the SEC wants this warning in the filing, former SEC internet enforcement chief John Reed Stark opined on X: “Joe might be right here. Why would the SEC go to all the trouble of requiring a proviso like this if the SEC planned to decline the application?”

However, voicing his usual skepticism, Stark stressed: “While I still believe the 90% likelihood of an SEC bitcoin spot ETF approval seems somewhat random, Joe is a great lawyer who may be spot-on in his thoughtful and meticulous analysis. On the other hand, it remains difficult to predict the SEC actions behind closed doors.” Nonetheless, the former SEC official cautioned:

It seems to me that supporting a bitcoin spot ETF for Chair Gensler would not only evidence capitulation but is also inconsistent with his behavior and practice on so many other fronts.

“It just comes down to human nature: Does Chair Gensler really want his legacy to be the approval of a bitcoin spot ETF, which would represent such an obvious personal loss to the mob and such an obvious threat to investors?” Stark concluded. Gensler has said several times that he views all crypto tokens, except bitcoin, as securities.

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