The US Wants Crypto Innovation: So Why Is It Still Regulating with an Orange-Era Test?

The US Wants Crypto Innovation: So Why Is It Still Regulating with an Orange-Era Test?
  • The Howey test struggles to classify decentralized crypto networks and modern token designs.
  • Functional token utility should matter more than speculative trading expectations.

The United States financial regulatory landscape stands at a critical juncture. With the recent passage of key stablecoin legislation, the GENIUS Act in July 2025, and the ongoing, highly anticipated debate over comprehensive market structure bills like the CLARITY Act in early 2026, the nation is opening up to the crypto economy.

This momentum, coupled with a discernible shift in administrative posture from enforcement-heavy to innovation-friendly, signals a new era for digital assets.

Why the Howey Test No Longer Fits Crypto

The cornerstone of U.S. securities law, the 1946 Howey test, remains an anachronistic and ill-suited tool for the nuances of a rapidly evolving, often decentralized technological paradigm.

It is my firm opinion that relying solely on this decades-old precedent for a modern, multi-trillion-dollar global market is a fool’s errand that stifles innovation while failing to provide genuine investor protection. A new, crypto-centric framework is not just a regulatory desire; it is an economic necessity.

An Orange Grove Test Meets Decentralized Finance

The original Howey test, born from a dispute over orange groves in Florida, determines a security if there is an investment of money in a common enterprise with a reasonable expectation of profits derived solely from the efforts of others.

This framework, while flexible in its time, struggles to capture the essence of decentralized finance (DeFi), where the efforts of others are often distributed among countless, sometimes anonymous, participants, governed by immutable code rather than a central corporation.

The Securities and Exchange Commission (SEC) has attempted to modernize its application, most notably with 2025 guidance emphasizing the expectation of profit and issuer influence criteria. This still leaves a gaping chasm of uncertainty, particularly for projects aiming for true decentralization.

Legal Uncertainty and the Cost to Institutional Adoption

The current approach fosters an environment where an asset may be considered a security at launch but a commodity later. This legal gray area is what most institutional investors fear to tread, thus hindering mainstream adoption and keeping the U.S. from cementing its crypto capital status.

We need a bespoke instrument, a DeFi Howey, that provides the clear token taxonomy that regulators and builders alike desperately need. This new test must be built on the reality of distributed ledger technology (DLT), not shoehorned into an outdated agricultural precedent.

Toward a Crypto-Centric Regulatory Framework

Drawing on proposals such as Commissioner Hester Peirce’s safe harbor and the functional token taxonomy advanced by industry leaders, I propose a crypto-centric regulatory framework built around four core rules. The goal is to promote U.S. innovation while preserving investor protection.

Rule One: The Decentralization Threshold

A modern framework must establish a clear, verifiable standard for decentralization. Once a network or protocol meets this threshold, it should exit securities law oversight and fall under a commodity framework, likely overseen by the Commodity Futures Trading Commission (CFTC).

Rather than relying on vague claims of “no central party,” regulators should assess measurable factors such as token ownership dispersion, the number of independent validators, and the immutability of smart contracts.

For example, if no single entity, including the founding team, controls more than a defined share—such as 20%—of governance tokens or validation power, the project would qualify. This provides a predictable path from launch to decentralization, addressing one of the industry’s most persistent legal uncertainties.

Rule Two: Functional Utility Versus Speculative Intent

The framework should prioritize a token’s actual use within a live network over speculative expectations. Tokens that serve clear, consumptive purposes—such as paying network fees, accessing services, or participating in on-chain governance—should be treated differently from passive investment instruments.

This functional approach better reflects how crypto networks operate and reduces the risk of utility tokens being swept into securities litigation solely due to secondary-market trading behavior.

Rule Three: Transparency and On-Chain Disclosure

Investor protection should be achieved through standardized, on-chain disclosures rather than traditional prospectuses. Projects should provide machine-readable information on audits, token supply and distribution, governance structures, and material risks.

This “code is law, disclosure is compliance” model aligns with the transparency of public blockchains and builds on disclosure principles embedded in the CLARITY Act.

Rule Four: Intermediary Liability and Consumer Safeguards

Regulation should focus on centralized intermediaries where most retail users interact. The GENIUS Act sets a useful precedent through reserve requirements and AML obligations. Strong oversight of exchanges and service providers can protect consumers without constraining decentralized innovation.

A Narrow Window to Get Crypto Regulation Right

The U.S. is at a pivotal moment. The current legislative momentum offers a rare chance to get this right. By moving beyond the archaic limitations of the Howey test and embracing a bespoke, forward-thinking framework, we can provide the regulatory clarity the market craves, protect investors, and ensure America remains a global leader in the digital financial revolution.

Sticking to the old ways in a new world is a path to irrelevance, and that is a price the U.S. economy cannot afford to pay.

 

Source: https://www.financemagnates.com/cryptocurrency/the-us-wants-crypto-innovation-so-why-is-it-still-regulating-with-an-orange-era-test/

Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.

Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.

An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.

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Is the EU Leading the Charge or Losing the Race in Regulating AI?

Is the EU Leading the Charge or Losing the Race in Regulating AI?

As I sit down to reflect on the European Union’s emerging AI regulatory framework, I can’t help but feel a mix of admiration and unease. The EU is charting a bold course, aiming to classify AI tools based on their potential risks and impose stricter rules on high-risk systems like self-driving cars and medical technologies, while giving more leeway to lower-risk applications like internal chatbots.

As someone who has spent years covering the intersection of technology and policy, I’ve seen the transformative power of innovation and the chaos that can ensue when it’s left unchecked. The EU’s approach feels like a necessary step toward ensuring AI remains trustworthy and aligned with human values, but I worry it might come at the cost of stifling the very creativity it seeks to protect. This isn’t just a European issue—it’s a global one, and the world is watching closely.

The EU’s AI Act, which took effect in August 2024, is a groundbreaking piece of legislation, the first of its kind to tackle AI governance on such a comprehensive scale. The European Commission has divided AI systems into four risk categories: unacceptable, high, limited, and minimal. High-risk systems, like those used in healthcare or law enforcement, face rigorous requirements, including mandatory safety checks and detailed documentation. For instance, AI tools in medical devices must meet strict standards to ensure they don’t endanger patients, a move that reflects the EU’s deep commitment to safeguarding fundamental rights, as outlined in the official documentation of the AI Act. On the other hand, lower-risk systems, such as chatbots used within companies, are subject to lighter regulations, allowing businesses to innovate without being bogged down by red tape. It’s a thoughtful, risk-based approach designed to strike a balance between fostering innovation and protecting citizens.

I can’t help but admire the EU’s ambition here. Growing up in a world where technology often seemed to outrun regulation, I’ve seen the consequences of letting innovation run wild—data breaches, biased algorithms, and the erosion of privacy. The EU’s General Data Protection Regulation (GDPR), implemented back in 2018, set a global standard for data privacy, inspiring similar laws in places like Brazil and California. Over 130 countries have adopted data protection laws influenced by the GDPR, proving that the EU has the power to shape global norms. The AI Act could follow in its footsteps, becoming the go-to model for AI regulation worldwide. For companies operating in or targeting the European market, compliance isn’t just a legal checkbox—it’s a strategic necessity. Getting ahead of these rules could save businesses from costly last-minute scrambles and bolster their reputation as ethical innovators.

But there’s a catch, and it’s a big one. Critics worry that the EU’s regulatory zeal could backfire, particularly for smaller companies and startups. The European Commission estimates that compliance costs for high-risk AI systems could amount to €400,000 per system, depending on the complexity and scale. For small and medium-sized enterprises (SMEs), which make up 99% of all businesses in the EU and employ nearly 100 million people, these costs could be dealbreakers. I’ve spoken to entrepreneurs who fear they’ll be priced out of the European market or forced to abandon their AI projects altogether. If regulations push these smaller players away, Europe risks losing its competitive edge in a global AI race that’s heating up fast.

And then there’s the broader global context. While the EU is busy crafting its regulatory masterpiece, other major players like the United States and China are taking very different paths. The U.S., under President Donald Trump, has embraced a more hands-off approach, relying on voluntary guidelines and industry self-regulation. Meanwhile, China is pouring resources into AI development, with companies like DeepSeek emerging as global leaders. Analysts estimate that AI technology could bring $600 billion annually for China’s economy, fuelled by government support and a regulatory environment that’s far less restrictive than the EU’s. The third Artificial Intelligence Action Summit in Paris, held in February, highlighted these stark contrasts, with world leaders and tech executives grappling with how to regulate AI without losing ground to less regulated markets. China’s DeepSeek app, for example, which can self-train on coding and math problems, has only intensified these concerns, raising questions about whether the EU’s approach might leave it playing catch-up.

The EU’s AI Act also comes at a time when the AI landscape is evolving rapidly, with trends like AI-driven search snippets and workplace automation reshaping industries. Take Google’s AI Overviews, for example. A 2024 analysis by Seer found that these snippets, which provide answers directly on the search page, are reducing click-through rates for many businesses. While this is great for users who get quick answers, it’s a headache for companies that rely on organic traffic. On the workplace front, McKinsey’s 2024 report, “Superagency in the Workplace,” argues that AI can boost productivity and creativity but only if companies invest in training employees to collaborate with these tools. The report found that organizations that prioritize people-centric AI strategies—offering practical training, clear communication, and ethical guidelines—saw productivity gains. These insights suggest that regulation alone isn’t enough; success depends on how well organizations and societies adapt to AI’s potential.

Yet, for all the challenges, there’s a compelling case to be made for the EU’s approach. Proponents argue that well-crafted regulations can build trust and encourage responsible development. The AI Act’s focus on transparency, such as requiring developers to disclose details about their training data, resonates with growing public demand for accountability. 68% of Europeans want government restrictions on AI, citing concerns about privacy, bias, and job displacement. By addressing these issues head-on, the EU could position itself as a global leader in ethical AI, attracting businesses and consumers who value trust and safety. And let’s not forget the EU’s track record with the GDPR, which showed that robust regulation can coexist with innovation if it’s done right—thoughtfully, collaboratively, and with a clear eye on the bigger picture, as evidenced by its widespread global influence.

So, where does that leave us? As I see it, the EU’s AI regulatory framework is a bold and necessary experiment, one that reflects the bloc’s commitment to putting people first in an increasingly tech-driven world. But its success hinges on finding the right balance—encouraging innovation without sacrificing accountability and protecting rights without stifling growth. For businesses, the message is clear: don’t wait to adapt. Staying informed and preparing early could make all the difference, both in terms of compliance and reputation. For the EU, the challenge is even greater: to lead with vision, flexibility, and a willingness to learn from the global AI race. As a journalist, I’m cautiously optimistic, but I’ll be watching closely to see whether this framework becomes the global benchmark it aspires to be—or a cautionary tale of good intentions gone awry.

 

 

Source: https://intpolicydigest.org/is-the-eu-leading-the-charge-or-losing-the-race-in-regulating-ai/

Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.

Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.

An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.

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Navigating the Murky Waters: The Philippines and Regulating Cryptocurrency

Navigating the Murky Waters: The Philippines and Regulating Cryptocurrency
The Philippines, a nation known for its vibrant culture and growing economy, is wading into the ever-evolving world of cryptocurrency. With the potential for both economic boon and lurking dangers, the Philippine government has set its sights on establishing a regulatory framework for cryptocurrencies by the end of 2024. This article will delve into the current state of cryptocurrency in the Philippines, explore the potential benefits and drawbacks of regulation, and offer a perspective on the path forward for this dynamic technology.

A Nation Embracing Crypto

The Philippines has emerged as a surprising leader in cryptocurrency adoption. According to a 2022 report by TripleA, a crypto research firm, 7 million Filipinos, or 6.13 of the total population, own some form of cryptocurrency.

This widespread adoption can be attributed to several factors. The Philippines has a large young population comfortable with technology, and Filipinos working abroad often use cryptocurrency for remittances, sending money back home faster and cheaper than traditional methods. Additionally, the lack of robust financial infrastructure in some areas makes cryptocurrency an attractive alternative for storing wealth and conducting transactions.

The Need for Regulation: Taming the Wild West

While the Philippines’ embrace of cryptocurrency is commendable, the current Wild West landscape poses significant challenges. The absence of regulations leaves investors vulnerable to scams, market manipulation, and hacking.

An article on Nikkei Asia reported that Philippines lacks digital literacy and cybercrime awareness and more than one-third of Filipinos surveyed had been scammed or encountered retail fraud online. In the same article, they mentioned about a study initiated by the Global Anti-Scam Alliance along with the tech security firm Gogolook based in Taiwan, gathered data from 20,000 individuals regarding their encounters with online shopping across various countries including Vietnam, China, Thailand, Hong Kong, Taiwan, Indonesia, South Korea, Japan, Malaysia, Singapore, and the Philippines. The Philippines reported the highest frequency of shopping scams, with a staggering 35.9% of respondents affected, outstripping China, which came in second at 27.2%. On the other end of the spectrum, South Korea registered the smallest percentage of such scams, with a mere 4.2% of participants reporting incidents.

The numbers of cryptocurrency scams can be worst as that lack public education. The anonymity associated with cryptocurrency transactions can facilitate money laundering and other criminal activities.

The Benefits of Regulation: Building a Sustainable Future

Regulation, if implemented thoughtfully, can usher in a new era for cryptocurrency in the Philippines. A well-defined regulatory framework would provide much-needed clarity and security for investors. Investors would be better protected from fraudulent activity, fostering trust and encouraging wider participation in the cryptocurrency market. Regulations could also establish Know Your Customer (KYC) and Anti-Money Laundering (AML) standards, deterring criminal activity and ensuring the integrity of the financial system.

In my humble opinion, regulators should focus on establishing clear guidelines for cryptocurrency exchanges and initial coin offerings (ICOs) while allowing for flexibility and adaptability in a rapidly evolving space. Additionally, the government should consider collaborating with industry experts and stakeholders to create a regulatory framework that is both effective and practical.

The Philippines can learn valuable lessons from countries that have already implemented cryptocurrency regulations. Singapore, for example, has established itself as a global hub for cryptocurrency by adopting a progressive regulatory approach. The Monetary Authority of Singapore (MAS) has issued licenses to cryptocurrency exchanges and implemented KYC/AML standards, creating a safe and secure environment for investors. Similarly, Japan has legalized cryptocurrency as a legal tender, providing a clear legal framework for its use.

The Road Ahead: Challenges and Opportunities

The Philippines faces several challenges in its quest to regulate cryptocurrency. One major hurdle is the lack of a comprehensive legal framework for digital assets. The government will need to define cryptocurrencies and establish clear rules for their issuance, trading, and use. Additionally, the Philippines needs to build capacity within its regulatory agencies to effectively oversee the cryptocurrency market.

Despite these challenges, the Philippines has a unique opportunity to become a leader in responsible cryptocurrency regulation. By striking a balance between investor protection and fostering innovation, the Philippines can create a regulatory framework that attracts businesses and investors while safeguarding its financial system.

A Personal Perspective: Embracing the Future with Caution

As a practitioner who has closely followed the development of cryptocurrency, I believe that its potential for positive change is undeniable. However, I also recognize the inherent risks associated with this nascent technology. Regulation, if implemented strategically, can be a powerful tool to harness the power of cryptocurrency for good. The Philippines has the opportunity to become a model for other nations by creating a regulatory framework that is both effective and forward-thinking. The journey ahead will not be easy, but the potential rewards are significant. By embracing innovation while safeguarding its citizens, the Philippines can navigate the murky waters of cryptocurrency and emerge as a leader in the digital age.

In Conclusion

In the quest to harness the transformative power of cryptocurrency, the Philippines stands at a pivotal crossroads. The nation’s journey towards establishing a comprehensive regulatory framework by the end of 2024 is not merely a bureaucratic endeavor but a strategic move to secure its place in the global financial landscape. The widespread adoption of cryptocurrency among Filipinos reflects a society that is both innovative and adaptive, yet the absence of regulation has left it vulnerable to the darker elements of the digital frontier.

The need for regulation is clear: to protect investors, to deter criminal activity, and to establish the Philippines as a reputable and secure environment for the burgeoning crypto economy. The benefits of such regulation are manifold, promising to bring stability, trust, and growth to a market that is currently akin to the Wild West. By learning from the successes and failures of other nations, the Philippines can craft a regulatory framework that is both robust and flexible, capable of evolving with the rapid pace of technological change.

As we look to the future, the Philippines’ approach to cryptocurrency regulation will undoubtedly serve as a case study for other nations grappling with similar challenges. With thoughtful regulation, the Philippines can mitigate the risks and unlock the full potential of this revolutionary technology. The journey will require diligence, collaboration, and a steadfast commitment to the principles of transparency and integrity. If successful, the Philippines will not only navigate the murky waters of cryptocurrency but also chart a course for others to follow, emerging as a beacon of progress in the digital age.

 

Source: https://www.benzinga.com/24/06/39338078/navigating-the-murky-waters-the-philippines-and-regulating-cryptocurrency

Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.

Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.

An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.

j j j