SEC crypto guidance offers improvements but lacks clarity

The SEC and CFTC have issued joint guidance aiming to clarify how securities laws apply to digital assets, marking an improvement from previous approaches. While acknowledging that most digital assets are not investment contracts themselves, the guidance remains unclear on when a digital asset sale becomes subject to securities laws. Attorneys argue the SEC missed an opportunity to clearly reject its prior "regulation by enforcement" stance and the broad interpretation of the Howey test. The new details provide some guardrails but still leave significant room for interpretation regarding investment contracts and secondary market trading.