Cryptocurrencies and financial securities
Many people think of cryptocurrencies as being similar to stocks, and, in some cases, some crypto assets do behave like stocks. Companies can offer shares of their projects, as in the case of a tokenized real estate investment, as a crypto asset. However, in other cases, cryptocurrencies are just that -- a type of digital currency that can be used to buy and sell things both digital and physical.
Although crypto assets haven’t been cleanly defined or regulated, the SEC is working toward doing just that. For now, it’s best to assume that crypto assets are unregulated and not treated as financial securities until you know for sure. The SEC’s former chairman, Jay Clayton, attempted to clarify this in 2018, but giant loopholes remain.
“Cryptocurrencies: These are replacements for sovereign currencies, replace the dollar, the euro, the yen with bitcoin," Clayton said in a 2018 interview with CNBC. "That type of currency is not a security."
On the other hand, he noted, "A token, a digital asset, where I give you my money and you go off and make a venture, and in return for giving you my money I say 'you can get a return' that is a security and we regulate that. We regulate the offering of that security and regulate the trading of that security."
However, this leaves a gaping hole when it comes to trade among cryptocurrency and non-fungible token (NFT) investors. They may be buying into something considered a component of a software ecosystem (and widely regarded as an investment among crypto enthusiasts) but without the official “expectation of profit” given by the developer. In addition, the level of decentralization of any given blockchain can also play a part in determining if a crypto asset is a security.
Cryptocurrencies are typically considered in the same class as other types of currency for the SEC’s purposes. Crypto assets may look and feel like securities, but they often fail the Howey Test.