Sep. 25, 2023
While protecting advisory clients' assets is unquestionably important, any revised custody rule must avoid being unduly burdensome or stifling financial innovation. The growth of cryptocurrencies and decentralized finance has spawned novel custody arrangements that do not fit neatly into existing regulatory models. Rather than take a one-size-fits-all approach, the SEC should adopt a flexible framework that accounts for these emerging technologies. Specifically, the SEC should consider exempting from certain custody requirements advisors who hold clients' crypto assets using smart contracts, multisig wallets, or other “trustless” mechanisms where assets are retained under the client's control. While not risk-free, such arrangements do not have the same vulnerability as traditional custodial relationships. Imposing onerous audit and recordkeeping rules could discourage further progress in this area to the detriment of investors and the broader financial system. Further, smaller advisory firms experimenting with cryptocurrency applications should be subject to less stringent standards than large, established players. A scaled approach based on factors like assets under management and custody would nurture innovation while appropriately protecting customers. With reasoned flexibility toward new paradigms like crypto, the SEC can craft a custody rule that shields advisory clients while allowing cutting-edge projects to thrive. The Commission should leverage the reopened comment period to ensure its regulations keep pace with rapid technological change.