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University of Miami Business Law Review

Justin Henning

Document Type

Note

Abstract

With innovation always comes unknowns. Blockchain technology and crypto–assets are no different. Often times, innovators are so worried about getting their product to market or scaling at mass that they overlook the legal ramifications of their innovations. As Mark Zuckerberg infamously said, “move fast and break things.” Facebook was in no way alone in this style of innovation. However, with respect to crypto–assets, the SEC has stepped in and is attempting to prevent the “break things” aspect. One of the major issues relating to crypto–assets is that many people still do not understand what they are, or how the underlying technology works. At the moment, we do not know what to classify crypto– assets as: property, commodities, or something else .

If the SEC determines that crypto–assets are investment contracts, the regulation that follows is at risk of putting stranglehold on the underlying innovation and technology. It becomes an issue of balancing consumer protection and innovation for society. SEC v. W.J. Howey Co. laid out a pronged test to determine whether a transaction is an investment contract, subjecting it to securities laws. This note examines the Howey Test to explain why two popular crypto–assets, Bitcoin and Ethereum, are unlikely to satisfy the Howey Test, and briefly addresses the need for clarity in this area. }

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