When Does a Crypto Token Become a Security Under U.S. Law?

Understanding the Howey Test, SEC enforcement actions, and how U.S. regulators assess digital assets.

A common assumption in cryptocurrency project development is that issuing a crypto token places the project outside traditional financial regulation. Under U.S. law, however, a crypto token may be classified as a security depending on how it is offered, sold, and promoted. The U.S. Securities and Exchange Commission (SEC) has brought several enforcement actions against blockchain projects for violating federal securities laws. This article explains when a crypto token becomes a security under U.S. law and the legal framework regulators use to make that determination.

What Is a Security Under U.S. Law?

A security is a regulated financial instrument representing an investment of capital with an expectation of return. Securities exist in numerous forms including: notes, stocks, treasury stocks, bonds, and certificates of interest or participation in profit sharing agreements. Securities law exists because of unique informational needs of investors. Securities are not inherently valuable; their worth comes only from the claims they entitle their owner to make upon the assets and earnings of the issuer or the voting power that accompanies such claims.

Under the Securities Act of 1933, a “security” is defined to include instruments such as stocks, bonds, and investment contracts. Cryptocurrencies do not neatly fit within any of those explicit categories, so the SEC has used the rubric of an “investment contract” to bring digital assets within its ambit.

The U.S. Supreme Court developed a legal test on what constitutes an investment contract and hence a security in SEC v. W.J. Howey Co.

The Howey Test consists of four elements:

[1] An investment of money

[2] In a common enterprise

[3] With a reasonable expectation of profits

[4] To be derived from the efforts of others

The Howey Test Explained

1. An Investment of Money

An investment of funds, under the Howey Test, comprises the provision of capital, cash, assets, goods, services, as well as a promissory note. As the buyers of the token or coin purchase it with cryptocurrency, there would be some investment of funds in return for the token or coin undoubtedly. Thus, the first requirement of the Howey Test is satisfied.

2. In a Common Enterprise

A common enterprise is established if investors pool their funds or work with or through others for the purpose of realizing profits. This observation draws attention to the link that exists between various investment activities by illustrating that more than one person with one aim of realizing profit actually gets involved. This principle is important in establishing that some investment ventures are group efforts where the performance of one person depends on that of the group.

3. With a Reasonable Expectation of Profits

An expectation of profits refers to the purchaser’s anticipation of financial returns from holding the asset. In the crypto context, this expectation may be created through marketing materials, token price projections, exchange listings, or statements by founders suggesting future appreciation.

4. To Be Derived From the Efforts of Others

The last principle addresses the very important issue of promoters, sponsors, or other third parties that will enable investors to generate profit. An investment that heavily relies on the success of others for its outcomes is very likely to be a security. This component of the Howey Test explains the impartiality of external levels of contribution and skills that drive the investment outcome and puts a focus on reliance by investors upon capabilities and actions of third parties in realizing profits.

Understanding these principles provides a sound foundation to apply the Howey Test across various applications, including securities. Scrutinizing the shades of each principle and how together they operate upon the framework of investments is how regulators and market participants can clear up the confusion regarding the determination of the status of different financial arrangements as securities.

Application of the Howey Test to Crypto Tokens

SEC v. Telegram Group Inc. (TON)

In SEC v. Telegram Group Inc., the SEC alleged that Telegram’s sale of its Gram tokens constituted an unregistered securities offering. Although the tokens were intended for future use on the Telegram Open Network, the court focused on the economic reality of the transaction. Purchasers invested capital with the expectation that Telegram’s efforts would increase the value of the tokens upon launch. The court held that the token sale satisfied the Howey Test, particularly the expectation of profits derived from the efforts of others, and therefore constituted a securities offering.

SEC v. Ripple Labs

In SEC v. Ripple Labs, the court adopted a more nuanced approach. While institutional sales of XRP were found to constitute investment contracts under the Howey Test, secondary market sales were treated differently. The decision demonstrates that a token is not inherently a security; rather, its classification depends on the context of the transaction and the expectations created at the time of sale.

SEC Guidance on Digital Assets

Although the Howey test remains the primary legal standard for determining whether a crypto token is a security, in practice the SEC has supplemented this analysis with interpretive guidance tailored specifically to digital assets. In 2019, the SEC’s Strategic Hub for Innovation and Financial Technology (FinHub) published the Framework for “Investment Contract” Analysis of Digital Assets.

The Framework does not create new law; it elaborates how the SEC applies the Howey Test to the crypto assets with their economic reality. Key considerations include whether the network is fully functional at the time of sale, whether token holders have a present consumptive use, and whether purchasers reasonably rely on the ongoing managerial or entrepreneurial efforts of a centralized development team.

Factors that may raise the possibility that a token is a security include active marketing of the token as an investment; touting a potential increase in value based on the efforts of others; promises of exchanges on which the token can be traded; and retaining large allocations of tokens by the founders. On the other hand, where a network is adequately decentralized and tokens are not being used in a way that is expected to appreciate in value on the basis of entrepreneurial or managerial efforts of others, the likelihood of a securities classification is diminished.

Conclusion

The determination of whether a crypto token constitutes a security under U.S. law depends on its economic substance rather than its technological form. As demonstrated by enforcement actions such as Telegram and Ripple, courts and regulators focus on how tokens are offered and the expectations created among purchasers. For crypto projects, early legal analysis and careful structuring of token distributions are critical to mitigating regulatory risk and ensuring long-term sustainability.

This article is for informational and educational purposes only and does not constitute legal or financial advice.

#CryptoLaw #Web3Law #SecuritiesLaw #BlockchainRegulation #DigitalAssets

When Does a Crypto Token Become a Security Under U.S. Law? was originally published in Coinmonks on Medium, where people are continuing the conversation by highlighting and responding to this story.