“The regulatory landscape in the US is nebulous at best,” says Brandon Neal, the chief operating officer of Euler, a decentralized finance project. “It not only creates a lot of confusion in the industry and the public, but I think it potentially stifles innovation.”
To many securities law experts, however, there’s nothing nebulous about it. “You don’t run afoul of the SEC’s disclosure laws if you register and disclose,” says Roger Barton, managing partner of Barton LLP. “I believe the securities laws are clear enough. I don’t know that the SEC needs to create specific rules relative to crypto.”
It sounds intuitive that new technology requires new rules and regulations. But many securities lawyers believe the general approach exemplified by the Howey test is part of why US securities regulation has worked pretty well over the years. “The downside to providing clarity—and this is the reason we don’t define ‘fraud’ in the law either—is that as soon as you write down what the parameters are, you’ve given a road map for getting around it,” says Hilary Allen. “So the test needs to be flexible. The downside to that is there’s going to be some uncertainty in how it’s applied.”
Source: Crypto and the US Government Are Headed for a Decisive Showdown | WIRED
