What makes a crypto asset a security in the U.S.?
Navigating the world of cryptocurrencies can be an intricate endeavor, particularly when it comes to the regulation of these digital assets. As various types of crypto assets emerge, a crucial question arises: What makes a crypto asset a security in the U.S.? This 2,000-word exploration will delve into the criteria used by U.S. regulators to determine whether a crypto asset classifies as a security, why it matters, and the implications of such classification.
To comprehend what makes a crypto asset a security, one must first understand the concept of a “security.” According to the U.S. Securities and Exchange Commission (SEC), a security includes a wide range of investment vehicles, such as stocks, bonds, options, notes, and investment contracts. These instruments represent an ownership position in a publicly-traded corporation (stock), a creditor relationship with a governmental body or a corporation (bond), or rights to ownership represented by an option.
The primary purpose of securities is to raise capital for the issuer, while providing an investment opportunity for the investor. The Securities Act of 1933 and the Securities Exchange Act of 1934 require securities to be registered and regulated to ensure transparency, protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.
The Howey Test: A Determining Factor
The pivotal tool used to decide whether a financial instrument qualifies as an investment contract, and thus a security, is known as the Howey Test. Derived from the Supreme Court case SEC v. W.J. Howey Co. (1946), this test has four prongs:
Investment of Money: There must be an investment of money or other tangible or definable consideration.
Common Enterprise: The investment must be in a common enterprise, meaning the fortunes of the investor are linked with those of the promoter or the profitability of the enterprise.
Expectation of Profit: There must be an expectation of profits from the investment.
Efforts of Others: The profit must come from the efforts of a promoter or third party.
An instrument or transaction must meet all four criteria to be considered a security under the Howey Test. If a cryptocurrency or any other asset passes this test, it is classified as a security and falls under the SEC’s jurisdiction.
Application to Crypto Assets
When it comes to cryptocurrencies or crypto assets, the application of the Howey Test can be complex. Take Bitcoin, for example. It is not considered a security primarily because it was not issued in an initial coin offering (ICO) where funds were raised to start a project. Also, Bitcoin is decentralized with no common enterprise or third party whose efforts contribute to expected profits.
On the other hand, the SEC has deemed certain ICOs as securities offerings. The prime example is the case with Ethereum’s initial offering. In its ICO, investors bought Ether with the expectation that the efforts of the Ethereum Foundation would make their Ether more valuable. Therefore, it could be argued that it was initially a security. However, as Ethereum became more decentralized over time, the SEC declared in 2018 that Ether was not a security.
Why It Matters: Implications of Being a Security
Being classified as a security carries significant implications for crypto assets. First, securities must be registered with the SEC, which involves providing detailed information about the company, the security itself, and the security’s sale.
Failure to comply with the SEC’s registration and regulation requirements can result in penalties, including fines and other legal consequences. In fact, the SEC has cracked down on numerous crypto projects that failed to register their ICOs as securities offerings.
The classification also impacts where and how the crypto asset can be traded. Securities can only be traded on registered exchanges. This means that a crypto asset classified as a security could be delisted from cryptocurrency exchanges that are not registered with the SEC, which can significantly impact the asset’s liquidity and value.
Moreover, being a security involves more stringent regulations regarding disclosure and compliance, which can increase the cost and complexity for the issuing entity. The regulatory obligations include regular financial reporting, disclosing material information to investors, implementing specific corporate governance practices, and adhering to rules regarding sales and trading practices.
The SEC has made several key determinations regarding whether specific crypto assets are securities. One well-known case involves Ripple Labs and its digital token XRP. In 2020, the SEC sued Ripple, stating that it raised over $1.3 billion through an unregistered, ongoing digital asset securities offering (namely, the sale of XRP). Ripple has contested this, arguing that XRP is a currency rather than a security, and the case is ongoing as of this writing.
Another case revolves around the ICO of Telegram Group Inc. The SEC halted the sale of Telegram’s digital token (known as “Grams”) just before launch, asserting that they were securities and that Telegram had not registered the offering with the SEC.
Looking Ahead: Uncertainty and The Need for Clarity
Despite these examples, determining whether a crypto asset is a security remains an area of uncertainty and ongoing debate. The dynamic and innovative nature of crypto assets means that they can sometimes straddle the line between different types of assets. Some argue that the Howey Test, which was established in the 1940s, may not be entirely adequate to classify new-age digital assets.
There have been calls for more explicit regulatory frameworks that can address the unique characteristics of crypto assets. As of now, crypto businesses and investors must often rely on a case-by-case analysis by regulators or courts.
In the U.S., whether a crypto asset is a security largely hinges on the Howey Test. Crypto assets deemed as securities come under the jurisdiction of the SEC, and this classification carries substantial implications for how the asset is issued, traded, and governed.
While this area remains somewhat gray, the central theme is clear: if a crypto asset involves an investment of money in a common enterprise, with profits expected predominantly from the efforts of others, it’s likely to be considered a security. However, given the rapid evolution of crypto assets, a more tailored and explicit regulatory approach may be necessary to offer greater clarity in the future.