While Friday’s SEC Crypto Task Force Roundtable was a refreshing change from the prior administration’s “regulation by enforcement” approach, it focused on yesterday’s problems instead of proposals that could shape the regulatory framework that will govern crypto going forward.
Since 1946, the question of whether a product is a “security” or “commodity” has been governed by the Supreme Court’s decision in SEC v. W.J. Howey Co. Courts have struggled to uniformly apply the “Howey” test to digital assets, which should not be surprising because it’s a decades-old decision about citrus groves.
Digital assets do not cleanly fit into either the “security” or “commodity” bucket. They are something entirely new. But the distinction between securities and commodities matters under the law because the SEC regulates securities and the CFTC regulates products that include commodities.
Congress is considering new legislation that resembles last year’s FIT21 bill.
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