The U.S. Securities and Exchange Commission’s (SEC) cryptocurrency-related actions reached a new high in 2023, jumping more than 50% when compared to 2022. Although the SEC continues to view cryptocurrency enforcement as a top priority, the question of what role the SEC should play in regulating cryptocurrencies has been an ongoing debate. Nevertheless, we expect the SEC’s enforcement efforts in this area to continue at a high pace in 2024, even though whether or not cryptocurrency should be classified as a security or something else remains uncertain.
The Uncertain State of the Law
SEC Chair Gary Gensler has made clear that he believes the existing securities regime appropriately governs cryptocurrencies. In his view, most cryptocurrencies are securities based on the Howey test. Under the Howey test, a transaction is considered a security if it meets four criteria:
- Money is invested.
- There is an expectation that the investor will earn a profit.
- The investment is a common enterprise.
- Profits are generated through the efforts of others.
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