Based on what the SEC has already said and done, and given the reality of these tokens and ICO’s, it seems highly unlikely that they will support the non-securities argument. I realize that some think that they won’t be ruled securities by sheer force of wanting that to be so, or think they can take the money and run. To those people I’d refer the history of the SEC, which describes an orginazatiom which can be glacially slow, and glacially inevitable.
EU will allow kickstarter-style equity crowdfunding from July 21st this year, up to €1M (accessible to general public, not just "accredited investors"), and - depending on a state - equity crowdfunding up onto €8M with minimal paperwork.
Plus, there are simplified rules for handling security tokens in some of the countries. If memory serves me right, setting a crypto exchange dealing with security tokens in Germany costs ~40k€ in license fees, and ~400k€ in all legal expenses. If you have it in one EU state, you're allowed to transact in all of them, and all the rest of the world too (US excluded).
Worth noting also, that unlike webtech, in fintech you can build a feasible business while banning US. It hurts, but it's doable - especially when US startups cannot compete :)
In fact as you can see, you don’t even need to be a US citizen or company. The SEC can take its time and when it has a mind to, just reach out and fuck up all of the cryptocurrencies they decide broke the rules, and do it retroactively. They have a ton of power, backed by the US and a number of treaties. If you’re in the EU, the SEC won’t even have to break a sweat.
This is in line with SEC Chairman Clayton's recent statement that tokens can start off as securities but become non-securities and vice versa .
In particular, refer to his example:
"If I have a laundry token for washing my clothes, that's not a security. But if I have a set of 10 laundry tokens and the laundromats are to be developed and those are offered to me as something I can use for the future and I'm buying them because I can sell them to next year's incoming class, that's a security. What we find in the regulatory world [is that] the use of a laundry token evolves over time. The use can evolve toward or away from a security."
In general, a solid framework for evaluating tokens that should count as securities vs. non-securities is the one put together by Coincenter, which is available here: