Hester Peirce (헤스터 피어스), a commissioner at the U.S. Securities and Exchange Commission (SEC), said peer-to-peer transactions conducted through unpermissioned smart contracts do not require a separate legal exemption.

On Sept. 21, blockchain outlet CryptoSlate reported that recent actions by the SEC and the U.S. Commodity Futures Trading Commission (CFTC) are scrutinising where actual control remains, rather than the DeFi label itself.

The issue is how much authority a software provider can hold. In a statement on Sept. 17, Peirce said the regulatory rationale weakens when intermediaries that manage assets or execute trades disappear. She also referred to a "truly decentralised structure", but there is no corresponding formal legal category yet.

An SEC order issued the same day on tokenised securities shows the boundary more specifically. The order granted conditional exemptive relief only to certain tokenised securities venues (TSVs) that support permissioned trading using automated market maker pools. The key question is who can designate the pool, deploy the trading contract, change rules or parameters, set fees, and halt trading even if the transaction is executed through smart contracts.

Peirce also distinguished such structures from DeFi. She drew a line by saying permissioned venues are outside decentralised finance, and unpermissioned software is a different model. It means that even if execution is automated, retained human approval of access and operational authority matters in regulatory assessments.

The SEC also views the front end as a separate layer of control. In April, the SEC's Division of Trading and Markets said it would not recommend enforcement action for failure to register as a broker against certain interface providers where users, through self-custodied wallets, prepare trade instructions themselves. But the guidance has no legal force and will be considered withdrawn 5 years after April 13, 2026, absent further commission-level action.

By contrast, it excluded functions that strongly resemble brokerage activity. Those include soliciting transactions in certain crypto securities, recommending investment judgments, holding or accessing user assets, directly executing or settling transactions, and receiving or transmitting orders.

Compensation also became a standard. Flat fees paid by users or objectively calculated percentage fees may be allowed, but receiving consideration from another party linked to transaction size or whether it occurs is viewed as outside the scope. Default settings, route ranking, preferred venues and fee incentives can effectively steer user choices.

The CFTC allows promotion and receipt of compensation more broadly than the SEC, but limited its application to certain trading structures. In staff letter 26-25 on Sept. 17, the CFTC's Division of Market Participants said it would not recommend enforcement action if passive software providers that meet certain requirements do not register as introducing brokers. Users, however, must trade directly as members on a designated contract market or trade through a futures commission merchant or introducing broker that is a member of that market.

The CFTC more broadly permits promotion of certain derivatives, steering to certain registered firms, charging transaction-linked fees, and receiving a portion of a registered firm's revenue than the SEC, while prohibiting custody or control of customer assets, providing explicit buy or sell signals, active intervention in specific orders, and discretion over order routing or execution. It also required written agreements with relevant registrants, recordkeeping, and disclosure and notice obligations.

Ultimately, the key to regulatory judgment is not the DeFi label but where control lies. Even if trades are executed automatically, regulation is expected to vary depending on who holds authority over access, assets, fees, and system changes or shutdowns.