I think a good argument can be made that a law restricting the sale of non-registered securities to wealthy ("accredited") investors and excluding poor people violates the Equal Protection clause of the 14th Amendment. (And, although the 14th Amendment applies only to the states, the Supreme Court has held in Bolling v. Sharpe (1954) that the same principle operates against the federal government via the Due Process clause of the 5th Amendment.)
I just recently saw the SEC secretary say that ico’s are not illegal if they were to be done roughly behind closed doors, so to speak.
Meaning, don’t spam to the world your ico address and be diligent as to who you’re talking to about potential investments.
The SEC secretary wants a fine line distinction between a “private” and “public” raising of money. He’s right to point that all icos (besides filecoin) are trying to be considered as “private” while publicly share their address and don’t discern who sends in funds.
Cryotpkitty is under the current existing Ethereum network. Like how you can still buy bitcoin. ICO are initial coin offerings, so it's an investment before the actual coin is released and on the market.
I've skimmed the SEC documents Reg A, Reg S, Reg D, Reg CF they are all nonsensical when it comes to raising capital with crypto.