Let Americans Have Their Crypto Airdrops, Lawmakers Tell Gary Gensler

In a letter to the U.S. Securities and Exchange Commission (SEC) Chair Gary Gensler, Representative Tom Emmer (R-MN)—the House Majority Whip—expressed concerns about how the regulator views crypto airdrops under the lens of securities law.

In the letter, co-signed by Chairman of the House Committee on Financial Services Patrick McHenry (R-NC), Emmer pointed to a lack of regulatory framework in the United States regarding digital assets as the reason why Americans are blocked from claiming airdrops.

Seeking clarification on the matter, Emmer and McHenry further accused Gensler and the SEC of putting its thumb on the scale and preventing Americans from “shaping the next iteration of the internet.”

The future of the peer-to-peer digital economy cannot be left to the authoritarian whims of @GaryGensler.

Today, @PatrickMcHenry and I are requesting answers from the SEC on their position that airdrops are securities transactions.

— Tom Emmer (@GOPMajorityWhip) September 17, 2024

“Airdrops play an important role in incentivizing participation in blockchain-based applications, which, in turn, contribute to the continued development, initial governance, and ultimate decentralization of these networks,” Emmer said in a statement. “Chairman Genslers tenure at the SEC has been characterized by regulation by enforcement, and has resulted in widespread uncertainty and fewer opportunities for Americans.”

Airdrops refer to instances where tokens—whether fungible and or non-fungible (aka NFTs)—are distributed to eligible wallets from a project. Theyre often done to reward early users and contributors, or to motivate further engagement with a crypto protocol or project.

However, many projects—in an apparent effort to avoid potential regulatory issues—block U.S. citizens from accessing the airdrop websites and/or claiming tokens. Some examples of token airdrops in 2024 that blocked users in the United States include Saga, Tensor, and NIM.

One prominent example of the SEC calling out airdropped tokens came when the agency charged Tron founder Justin Sun with various securities violations in 2023, along with celebrity endorsers such as Jake Paul and Lindsay Lohan.

Emmer has come out against the SEC under Gary Gensler on multiple occasions. In November, Emmer again accused the Biden Administration and the SEC of “regulation by enforcement,” going so far as to write on Twitter that Gensler is “as ineffective as he is incompetent.”

In the new letter, Emmer and McHenry requested that Gensler clarify the SEC's position by September 30 on whether distributing non-security digital assets for free triggers the Howey test—and, if so, under what specific conditions. They also asked how the SEC differentiates between rewards given for free and digital assets airdropped to individuals.

“As you know, the ethos of crypto and blockchain technology is premised in decentralization,” they wrote. “Yet, the SECs regulatory approach seems to make the goal of decentralization impossible to obtain.”

The Congressmen also inquired about the potential impact on the existence and functionality of on-chain applications if these tokens are classified as securities, and thus, every transaction subjected to SEC scrutiny.

They also questioned whether the SEC had quantified the potential market impact should any digital assets be classified as securities, and if the SEC has ever considered the possible negative effects on economic growth and tax revenue resulting from its treatment of airdropped assets as securities.

“By prohibiting Americans from participating in airdrops, the SEC is preventing American crypto users from fully realizing the benefits of blockchain technology,” Emmer said. “The SECs approach during your time as Chair has only ensured that the next iteration of the internet is not designed by Americans or with American values, which is not to the benefit of our constituents.”

Edited by Andrew Hayward