Structure your ICO in a very ICO friendly domicile outside of the US and don't offer to US persons.
There’s no way to issue a passive investment (pooled in a managed common enterprise) to the public which is not presumably a security in every non-banana-republic jurisdiction in the world.
For example, here’s the relevant section of the German Security Trading Act.
Switzerland’s politicians and some banking officials are hobnobbing with ICOs (presumably because they’re been paid off somehow), but they’re starting to feel the heat (remember UBS got bitch slapped by the USA) and note that even lawyers there admit that ICOs could be securities and FINMA’s not responsible for securities regulation.
And especially if you’re asserting that ICOs are targeted to the unsophisticated, “joe six pack” n00bs.
If this changes or someone can show the legislative law, administrative law, or jurisprudence case law which states otherwise, then I’ll alter my stance.
I don’t believe the nation-states are going to abrogate their regulatory powers that protect the public against securities fraud and protections against inadequate disclosure.
Decentralized tokens such as Bitcoin which aren’t securities, can’t be regulated as securities. The governments can require payment of applicable taxes and even require reporting, but these aspects don’t cripple the token. Whereas, tokens issued as securities can become crippled by them being illegal for investors to buy and trade, given that investors must comply with capital gains (and other transfer) tax reporting requirements in their jurisdictions.
Although the tokens issued as securities could continue to be traded by those who for example who trade less than the thresholds for tax reporting, the big money won't be able to touch them.
If I realistically saw an uprising of 10s of millions of people that was prepared to defy the government, then I might change my stance. The bubble of people involved in ICOs is probably less than 100,000, and in any case, the number of those who are prepared to defy the government in their home jurisdiction is much, much smaller. Most people basically run and hide when TSHTF.
What I mean to say is that I’m not a government boot licker! But I’m being rational here in terms of planning.
Where are the Black Panthers and civil rights activists from the 1960s now? They got serious about establishing their nest egg and matured.
P.S. If my understanding changes, I’ll be sure to post an update comment to this blog.