Cryptocurrencies are generally not subject to federal regulation unless they are deemed to be “securities,” in which case the Securities Act of 1933 requires them to abide by disclosure requirements and antifraud regulation by the Securities and Exchange Commission (SEC) if they are offered to the public. The test the SEC uses to determine whether a cryptocurrency is a security was laid out by the Supreme Court in Securities and Exchange Commission v W. J. Howey Co. If the SEC asserts that a cryptocurrency is a security, an alleged issuer seeking to challenge that contention must litigate. The criteria contained in the so-called Howey test are irrelevant to any rational public policy
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