Cryptocurrencies: Security, Currency, or None of the Above? - Pastore (2024)

As interest in cryptocurrencies (“crypto”) continues to rise, businesses and investors are left wondering what regulations they must follow. While crypto may contain the word “currency” in its name, it is unclear whether it truly is a currency. There has been a lot of debate over which category it belongs to for regulatory purposes.1 Is it a currency or a security? The SEC has yet to provide guidance on this rapidly developing market.

Simply put, a currency is a store of value, unit of account, and medium of exchange, while a security is a tradable financial asset that has monetary value.2 The Securities Act of 1933 (“the ‘33 Act”) provides a list of what qualifies as a security, and crypto is not included. However, the list contains investment contracts, which is the category the SEC has openly debated whether cryptocurrencies belong.3 The Supreme Court in Howey stated an investment contract exists when “a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”4

The determination of which category crypto belongs in is essential for investors as it implicates which governing body has the authority to regulate the market. If crypto is categorized as a currency, the SEC lacks jurisdiction. If it is considered a security, it falls squarely in the SEC’s jurisdiction and becomes subject to the agency’s strict reporting and trading regulations.

The SEC is not the only government agency that has failed to provide clear guidance on what category crypto belongs in. The IRS still refers businesses to its 2014 Notice where it opined on the topic.5 The 2014 Notice stated it is “aware that ‘virtual currency’” exists and referred to “Bitcoin” as a convertible virtual currency because it has an equivalent value in real currency. However, in the same notice, it stated that virtual currency could be held as a capital asset like stocks and bonds.

Something that tends to complicate the classification of crypto even more is the fact that it seems a specific cryptocurrency’s classification may change over time. This happened in the case of the token ether, the primary token for Ethereum.8 The then SEC Chairman decided it no longer met the Howey test and declared it not a security. Then SEC Chairman Clayton also stated that Bitcoin was not a security due to its decentralized nature.10

Even though the SEC has stated Bitcoin and ether are not securities, the question remains on what the status is of the numerous other cryptos. A recent action brought by the SEC against Ripple Labs, Inc. (“Ripple”) in the U.S. District Court for the Southern District of New York could significantly impact how crypto is regulated and categorized. The SEC argues that XRP, Ripple’s cryptocurrency, is an investment contract under the Howey test, and therefore by not registering it, Ripple sold XRP as an unregistered security.11 While the parties have entered into settlement discussions, it is still a case to watch for potential regulatory impacts on cryptos.

While it is still unclear whether cryptos are securities or currency for regulatory purposes, one thing is clear: the market is only continuing to grow, and the SEC and other government agencies are taking notice of the unregulated area. Common sense, sound legal advice, and diligence will help any business or investor navigate this market despite the uncertainty surrounding crypto.

1. SEC Reckons With Crypto’s Currency And Security Conundrum, PYMNTS (Apr. 20, 2021).
2. Public Statement, Bill Hinman, Dir. Of Div. of Corp. Fin., SEC; Valerie Szczepanik, Senior Advisor for Digital Assets & Innovation, SEC, Statement on “Framework for ‘Investment Contract’ Analysis of Digital Assets” (Apr. 13, 2019).
3. Public Statement, Chair Gary Gensler, SEC, Remarks Before the Aspen Security Forum (Aug. 3, 2021).
4. SEC v. W. J. Howey Co., 328 U.S. 293, 298­–99 (1946).
5. I.R.S. Notice 2014-21, 2014-16 I.R.B. 938 (Apr. 14, 2014).
6. Id.
7. Id.
8. David Borsack & Cole Schotz, Cryptocurrencies And The Security And Exchange Commission, JDSUPPRA (Aug. 4, 2021).
9. Aaron Hankin, SEC’s Jay Clayton says Ether isn’t a security, reiterating the regulator’s stance, MarketWatch (Mar. 12, 2019).
10. Is Crypto A Commodity or Security?, SoFi (Apr. 27, 2021).
11. Press Release, SEC, SEC Charges Ripple and Two Executives with Conducting $1.3 Billion Unregistered Securities Offering (Dec. 22, 2020).

Tags: Advanced Technology, Cybersecurity

Cryptocurrencies: Security, Currency, or None of the Above? - Pastore (2024)

FAQs

Is crypto a currency or security? ›

A cryptocurrency is a digital or virtual currency secured by cryptography, which makes it nearly impossible to counterfeit or double-spend. Most cryptocurrencies exist on decentralized networks using blockchain technology—a distributed ledger enforced by a disparate network of computers.

What is cryptocurrency answers? ›

Cryptocurrency, sometimes called crypto-currency or crypto, is any form of currency that exists digitally or virtually and uses cryptography to secure transactions. Cryptocurrencies don't have a central issuing or regulating authority, instead using a decentralized system to record transactions and issue new units.

What are the pros and cons of cryptocurrency? ›

Advantages of Cryptocurrency:
  • Protection from inflation: Inflation has caused many currencies to urge their value to decline with time. ...
  • Self-governed and managed: ...
  • Decentralized: ...
  • Cost-effective mode of transaction: ...
  • Currency exchanges finish smoothly: ...
  • Secure and private: ...
  • Easy transfer of funds: ...
  • Illegal transactions:

Is crypto currency unsafe? ›

If you store your cryptocurrency online, you don't have the same protections as a bank account. Holdings in online “wallets” are not insured by the government like U.S. bank deposits are. A cryptocurrency's value can change constantly and dramatically.

Is cryptocurrency actually currency? ›

What are Cryptocurrencies? Cryptocurrencies are digital tokens. They are a type of digital currency that allows people to make payments directly to each other through an online system. Cryptocurrencies have no legislated or intrinsic value; they are simply worth what people are willing to pay for them in the market.

Is cryptocurrency is safe or not? ›

No one can access your funds unless they gain access to your crypto wallet's private key. If you forget or lose your key, you cannot recover your funds. Further, the transactions are secured by the blockchain system along with the scattered network of computers that verify them.

What is the biggest risk in crypto? ›

Scammers and hackers

Adept hackers can also exploit vulnerabilities in software to steal your data or take control of your device, so it is crucially important to keep your software and operating system up to date. Cryptocurrency holders and users are also often targeted by scammers and tricksters.

What are the bad uses of cryptocurrency? ›

Cryptocurrency can be vulnerable to scams or used as a payment mechanism of a scam. Scammers often use platforms like Facebook, Instagram and X (formerly known as Twitter) to trick people into these investments. If you suspect you've been targeted, it's important to report this to Action Fraud as soon as possible.

What are the main security concerns associated with using cryptocurrencies? ›

1. What are the common security risks associated with cryptocurrency? Common security risks include hacking and phishing attacks, smart contract vulnerabilities, social engineering scams, insider threats, and rug pulls.

Which crypto to avoid? ›

Top Cryptos to avoid
Name of the CoinWhy It Should Be Avoided
Dogecoin (DOGE)Lacks a competitive advantage, infinite supply, primarily used for tipping, making substantial price appreciation difficult.
Hex (HEX)Questionable claims of returns, lacks clear utility or revenue generation, making it a risky investment.
4 more rows
Apr 10, 2024

Is your money safe in crypto? ›

Although investing through the major cryptocurrency exchanges is relatively safe (and you can protect yourself by using safe digital practices and a cold wallet), cryptocurrency is a risky asset class. Only invest as much as you can afford to lose.

Can I trust crypto currency? ›

Cryptocurrency and bitcoin scams often promise big returns from a small initial investment. These scams are often exposed when people want to withdraw the money they've invested and find that they can't. Crypto scams can be used to steal money or financial details.

Is crypto official currency? ›

Despite its use for buying goods and services, there are still no uniform international laws that regulate Bitcoin. Many developed countries allow Bitcoin to be used, such as the U.S., Canada, and the U.K.

Is crypto an asset or currency? ›

A digital asset that has an equivalent value in real currency, or acts as a substitute for real currency, is referred to as convertible virtual currency, for example, a cryptocurrency. It can be: Used to pay for goods and services. Digitally traded.

Is crypto taxed as a security? ›

In the U.S., crypto is considered a digital asset, and the IRS treats it generally like stocks, bonds, and other capital assets. Like these assets, the money you gain from crypto is taxed at different rates, either as capital gains or as income, depending on how you got your crypto and how long you held on to it.

Which crypto is not a security? ›

On Thursday, June 14, 2018, the U.S. Securities and Exchange Commission's (SEC) Director of Corporate Finance, William Hinman (Hinman), announced that the commission would not be treating Ether or Bitcoin as securities.

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