[dcolkitt]

There's literally nothing in existing law that identifies tangibility as a specific criteria for what constitutes a security and what constitutes a commodity. In fact both the CFTC and SEC are specifically on record as saying Bitcoin constitutes a commodity. And obviously Bitcoin is as intangible as it gets.

[unyttigfjelltol]

The Howey test's 4th prong refers to the value being derived from the work of others. When we're talking about a "commodity" that is intangible with no real-world application, function or value, respectfully those attributes are suggestive that the value derives from the "work of others." Maybe you and I and the SEC don't necessarily know the scope of the enterprise, but useless bits and bytes don't generally acquire value spontaneously so if one of them like ... XRP ... suddenly goes to the moon ... it certainly is suggestive because there's no other reasonable explanation.