On May 22, 2018 the US Commodity Futures Trading Commission (CFTC) issued[1] an advisory statement for listing virtual currency derivative products. The statement is aimed at providing clarity for exchanges and clearing houses. Previously this week, major US cryptocurrency exchange and wallet Coinbase spoke[2] to regulators about obtaining a federal banking charter.
Those events came in the midst of uncertainty regarding the status of crypto in the US, as federal regulatory bodies still haven’t come up with one definitive scheme to regulate Bitcoin, altcoins and initial coin offerings (ICOs). There are currently a number of federal regulators involved in crypto, and all of those bodies view cryptocurrencies like Bitcoin differently - defining it as a security, money, property or a commodity. Furthermore, on a state to state level, some additional regulations may apply.
With the absence of one definitive regulatory framework at the federal level, cryptocurrencies in the country fall into various categories, all of which must be considered.
In the US, Congress holds supreme power over federal regulatory agencies such as the CFTC and the Securities and Exchange Commission (SEC), enforcing them to comply with the laws it issues. Now that Congress is silent on the matter, each regulatory agency views cryptocurrency from its perspective, which is why it’s possible for different agencies to claim concurrent authority over the same actions… This means that US citizens must abide by the existing regulatory schemes of all the various agencies, even if they conflict.
The SEC: fights against ICOs and leans towards a “balanced approach”
The SEC, which regulates securities transactions, mostly considers crypto as securities. According to the 70 year old Howey Test[3], which the SEC applies to determine the purview of its jurisdiction, a security
