Speculation vs. Securities at the Center of the Debate

A former U.S. Securities and Exchange Commission lawyer has publicly backed Ripple’s argument that speculation alone should not automatically subject cryptocurrencies to federal securities laws, weighing in on a growing regulatory battle as lawmakers debate the CLARITY Act and the future of U.S. crypto oversight.

The comments were submitted to the SEC’s Crypto Task Force and published as public input on the agency’s website, marking a rare moment where a former regulator openly aligns with industry criticism of proposed market-structure legislation.

The response was authored by Teresa Goody Guillen, a former SEC attorney, who argued that simply holding a digital asset in hopes of price appreciation — what she describes as a “passive economic interest” — should not, by itself, trigger securities regulation.

Guillen echoed Ripple’s concern that certain regulatory frameworks mistakenly conflate speculation with investment rights, stretching securities laws beyond their intended scope. In her submission, she warned that treating price speculation as a sufficient legal trigger risks sweeping ordinary market behavior into a regime designed for formal contractual relationships.

“I agree with Ripple’s assertion that frameworks suggesting a ‘passive economic interest’ alone could trigger securities laws mistakenly conflate speculation with investment rights.”

She emphasized that speculation, without additional legal or governance rights, does not automatically create an investment contract.

Guillen’s submission directly responds to Ripple’s Jan. 9 letter to the SEC, which raised concerns about the current draft of the CLARITY Act. Ripple argued that the bill relies too heavily on concepts such as decentralization as governing legal metrics and risks misclassifying digital assets by focusing on market behavior rather than legal substance.

Both Ripple and Guillen contend that applying securities laws based solely on speculative intent could expose vast portions of the crypto market to regulatory uncertainty, even when token holders lack voting rights, profit-sharing claims, or enforceable obligations from issuers.

Guillen clarified that her comments were not intended to establish a binding regulatory framework and do not reflect official SEC policy, underscoring the fact that the debate remains unresolved within regulatory circles.

A New Category for Crypto Assets Emerges

In addition to responding to Ripple’s concerns, Guillen published a separate discussion draft proposing the “Digital Markets Restructure Act of 2026,” which introduces a potential third classification for cryptocurrencies that do not neatly fit existing legal categories.

Under the proposal, certain assets could be designated as “Digital Value Instruments” if they exhibit a combination of characteristics, including free transferability, passive economic exposure, limited contractual rights for holders, systemic dependence on a protocol sponsor, or a lack of mechanisms allowing holders to discipline or replace systems affecting the asset’s value.

The proposal aims to address what Guillen describes as a structural gap in current U.S. financial law, where digital assets are often forced into definitions designed for traditional securities or commodities.

The discussion draft also calls for clearer, risk-based jurisdictional boundaries between the SEC and the Commodity Futures Trading Commission, federal preemption to prevent inconsistent state-level regulation, and safe harbor provisions intended to support innovation without eliminating oversight.

Supporters of this approach argue that overlapping authority and fragmented enforcement have contributed to regulatory uncertainty, slowing domestic crypto development and pushing activity offshore.

Regulatory Talks Loom as Momentum Builds

The publication of Guillen’s submission comes ahead of a rescheduled joint SEC–CFTC meeting set for Thursday, where regulators are expected to discuss coordination on digital asset oversight. The event will feature a fireside chat between SEC Chair Paul Atkins and CFTC Chair Mike Selig.

Meanwhile, the U.S. Senate Agriculture Committee has delayed its markup of the broader crypto market structure bill after severe winter weather disrupted legislative schedules, further highlighting the fragile pace of regulatory progress.

As lawmakers debate where speculation ends and securities regulation begins, Guillen’s intervention adds momentum to a growing industry argument: that buying a token in hopes it goes up should not, on its own, make millions of users subject to securities law.

For Ripple and much of the crypto sector, the message is increasingly clear — regulation must distinguish speculation from investment rights if the U.S. wants a functional digital asset framework.