Howey Test and Cryptocurrencies: 'Every ICO Is a Security'
What Is the Howey Test?
To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts."
The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.
Understanding the Howey Test
The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land.
The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.
This established four criteria for determining an investment contract. Investing contract:
- An investment of money
- n a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.
Howey Test and Cryptocurrencies
Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.
The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test.
Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."
For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.
These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."
Special Considerations
If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register.
In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry.
Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities.
SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'
Howey Test FAQs
How Do You Determine If Something Is a Security?
The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.
Why Is Bitcoin Not a Security?
Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.
Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities.
A Security Defined by the SEC
In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.
The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:
- An investment contract's existence
- The formation of a common enterprise
- The issuer's profit promise
- Third-party promotion of the offering
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More on Web3 & Crypto

Protos
3 years ago
StableGains lost $42M in Anchor Protocol.
StableGains lost millions of dollars in customer funds in Anchor Protocol without telling its users. The Anchor Protocol offered depositors 19-20% APY before its parent ecosystem, Terra LUNA, lost tens of billions of dollars in market capitalization as LUNA fell below $0.01 and its stablecoin (UST) collapsed.
A Terra Research Forum member raised the alarm. StableGains changed its homepage and Terms and Conditions to reflect how it mitigates risk, a tacit admission that it should have done so from the start.
StableGains raised $600,000 in YCombinator's W22 batch. Moonfire, Broom Ventures, and Goodwater Capital invested $3 million more.
StableGains' 15% yield product attracted $42 million in deposits. StableGains kept most of its deposits in Anchor's UST pool earning 19-20% APY, kept one-quarter of the interest as a management fee, and then gave customers their promised 15% APY. It lost almost all customer funds when UST melted down. It changed withdrawal times, hurting customers.
- StableGains said de-pegging was unlikely. According to its website, 1 UST can be bought and sold for $1 of LUNA. LUNA became worthless, and Terra shut down its blockchain.
- It promised to diversify assets across several stablecoins to reduce the risk of one losing its $1 peg, but instead kept almost all of them in one basket.
- StableGains promised withdrawals in three business days, even if a stablecoin needed time to regain its peg. StableGains uses Coinbase for deposits and withdrawals, and customers receive the exact amount of USDC requested.
StableGains scrubs its website squeaky clean
StableGains later edited its website to say it only uses the "most trusted and tested stablecoins" and extended withdrawal times from three days to indefinite time "in extreme cases."
Previously, USDC, TerraUST (UST), and Dai were used (DAI). StableGains changed UST-related website content after the meltdown. It also removed most references to DAI.
Customers noticed a new clause in the Terms and Conditions denying StableGains liability for withdrawal losses. This new clause would have required customers to agree not to sue before withdrawing funds, avoiding a class-action lawsuit.
Customers must sign a waiver to receive a refund.
Erickson Kramer & Osborne law firm has asked StableGains to preserve all internal documents on customer accounts, marketing, and TerraUSD communications. The firm has not yet filed a lawsuit.
Thousands of StableGains customers lost an estimated $42 million.
Celsius Network customers also affected
CEL used Terra LUNA's Anchor Protocol. Celsius users lost money in the crypto market crash and UST meltdown. Many held CEL and LUNA as yielding deposits.
CEO Alex Mashinsky accused "unknown malefactors" of targeting Celsius Network without evidence. Celsius has not publicly investigated this claim as of this article's publication.
CEL fell before UST de-pegged. On June 2, 2021, it reached $8.01. May 19's close: $0.82.
When some Celsius Network users threatened to leave over token losses, Mashinsky replied, "Leave if you don't think I'm sincere and working harder than you, seven days a week."
Celsius Network withdrew $500 million from Anchor Protocol, but smaller holders had trouble.
Read original article here
Scott Hickmann
3 years ago
YouTube
This is a YouTube video:

Tim Denning
2 years ago
The Dogecoin millionaire mysteriously disappeared.
The American who bought a meme cryptocurrency.
Cryptocurrency is the financial underground.
I love it. But there’s one thing I hate: scams. Over the last few years the Dogecoin cryptocurrency saw massive gains.
Glauber Contessoto overreacted. He shared his rags-to-riches cryptocurrency with the media.
He's only wealthy on paper. No longer Dogecoin millionaire.
Here's what he's doing now. It'll make you rethink cryptocurrency investing.
Strange beginnings
Glauber once had a $36,000-a-year job.
He grew up poor and wanted to make his mother proud. Tesla was his first investment. He bought GameStop stock after Reddit boosted it.
He bought whatever was hot.
He was a young investor. Memes, not research, influenced his decisions.
Elon Musk (aka Papa Elon) began tweeting about Dogecoin.
Doge is a 2013 cryptocurrency. One founder is Australian. He insists it's funny.
He was shocked anyone bought it LOL.
Doge is a Shiba Inu-themed meme. Now whenever I see a Shiba Inu, I think of Doge.
Elon helped drive up the price of Doge by talking about it in 2020 and 2021 (don't take investment advice from Elon; he's joking and gaslighting you).
Glauber caved. He invested everything in Doge. He borrowed from family and friends. He maxed out his credit card to buy more Doge. Yuck.
Internet dubbed him a genius. Slumdog millionaire and The Dogefather were nicknames. Elon pumped Doge on social media.
Good times.
From $180,000 to $1,000,000+
TikTok skyrocketed Doge's price.
Reddit fueled up. Influencers recommended buying Doge because of its popularity. Glauber's motto:
Scared money doesn't earn.
Glauber was no broke ass anymore.
His $180,000 Dogecoin investment became $1M. He championed investing. He quit his dumb job like a rebellious millennial.
A puppy dog meme captivated the internet.
Rise and fall
Whenever I invest in anything I ask myself “what utility does this have?”
Dogecoin is useless.
You buy it for the cute puppy face and hope others will too, driving up the price. All cryptocurrencies fell in 2021's second half.
Central banks raised interest rates, and inflation became a pain.
Dogecoin fell more than others. 90% decline.
Glauber’s Dogecoin is now worth $323K. Still no sales. His dog god is unshakeable. Confidence rocks. Dogecoin millionaire recently said...
“I should have sold some.”
Yes, sir.
He now avoids speculative cryptocurrencies like Dogecoin and focuses on Bitcoin and Ethereum.
I've long said this. Starbucks is building on Ethereum.
It's useful. Useful. Developers use Ethereum daily. Investing makes you wiser over time, like the Dogecoin millionaire.
When risk b*tch slaps you, humility follows, as it did for me when I lost money.
You have to lose money to make money. Few understand.
Dogecoin's omissions
You might be thinking Dogecoin is crap.
I'll take a contrarian stance. Dogecoin does nothing, but it has a strong community. Dogecoin dominates internet memes.
It's silly.
Not quite. The message of crypto that many people forget is that it’s a change in business model.
Businesses create products and services, then advertise to find customers. Crypto Web3 works backwards. A company builds a fanbase but sells them nothing.
Once the community reaches MVC (minimum viable community), a business can be formed.
Community members are relational versus transactional. They're invested in a cause and care about it (typically ownership in the business via crypto).
In this new world, Dogecoin has the most important feature.
Summary
While Dogecoin does have a community I still dislike it.
It's all shady. Anything Elon Musk recommends is a bad investment (except SpaceX & Tesla are great companies).
Dogecoin Millionaire has wised up and isn't YOLOing into more dog memes.
Don't follow the crowd or the hype. Investing is a long-term sport based on fundamentals and research.
Since Ethereum's inception, I've spent 10,000 hours researching.
Dogecoin will be the foundation of something new, like Pets.com at the start of the dot-com revolution. But I doubt Doge will boom.
Be safe!
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Dani Herrera
3 years ago
What prevents companies from disclosing salary information?
Yes, salary details ought to be mentioned in job postings. Recruiters and candidates both agree, so why doesn't it happen?
The short answer is “Unfortunately, it’s not the Recruiter’s decision”. The longer answer is well… A LOT.
Starting in November 2022, NYC employers must include salary ranges in job postings. It should have started in May, but companies balked.
I'm thrilled about salary transparency. This decision will promote fair, inclusive, and equitable hiring practices, and I'm sure other states will follow suit. Good news!
Candidates, recruiters, and ED&I practitioners have advocated for pay transparency for years. Why the opposition?
Let's quickly review why companies have trouble sharing salary bands.
💰 Pay Parity
Many companies and leaders still oppose pay parity. Yes, even in 2022.
💰 Pay Equity
Many companies believe in pay parity and have reviewed their internal processes and systems to ensure equality.
However, Pay Equity affects who gets roles/promotions/salary raises/bonuses and when. Enter the pay gap!
💰Pay Transparency and its impact on Talent Retention
Sharing salary bands with external candidates (and the world) means current employees will have access to that information, which is one of the main reasons companies don't share salary data.
If a company has Pay Parity and Pay Equity issues, they probably have a Pay Transparency policy as well.
Sharing salary information with external candidates without ensuring current employees understand their own salary bands and how promotions/raises are decided could impact talent retention strategies.
This information should help clarify recent conversations.

Waleed Rikab, PhD
2 years ago
The Enablement of Fraud and Misinformation by Generative AI What You Should Understand
Recent investigations have shown that generative AI can boost hackers and misinformation spreaders.
Since its inception in late November 2022, OpenAI's ChatGPT has entertained and assisted many online users in writing, coding, task automation, and linguistic translation. Given this versatility, it is maybe unsurprising but nonetheless regrettable that fraudsters and mis-, dis-, and malinformation (MDM) spreaders are also considering ChatGPT and related AI models to streamline and improve their operations.
Malign actors may benefit from ChatGPT, according to a WithSecure research. ChatGPT promises to elevate unlawful operations across many attack channels. ChatGPT can automate spear phishing attacks that deceive corporate victims into reading emails from trusted parties. Malware, extortion, and illicit fund transfers can result from such access.
ChatGPT's ability to simulate a desired writing style makes spear phishing emails look more genuine, especially for international actors who don't speak English (or other languages like Spanish and French).
This technique could let Russian, North Korean, and Iranian state-backed hackers conduct more convincing social engineering and election intervention in the US. ChatGPT can also create several campaigns and various phony online personas to promote them, making such attacks successful through volume or variation. Additionally, image-generating AI algorithms and other developing techniques can help these efforts deceive potential victims.
Hackers are discussing using ChatGPT to install malware and steal data, according to a Check Point research. Though ChatGPT's scripts are well-known in the cyber security business, they can assist amateur actors with little technical understanding into the field and possibly develop their hacking and social engineering skills through repeated use.
Additionally, ChatGPT's hacking suggestions may change. As a writer recently indicated, ChatGPT's ability to blend textual and code-based writing might be a game-changer, allowing the injection of innocent content that would subsequently turn out to be a malicious script into targeted systems. These new AI-powered writing- and code-generation abilities allow for unique cyber attacks, regardless of viability.
OpenAI fears ChatGPT usage. OpenAI, Georgetown University's Center for Security and Emerging Technology, and Stanford's Internet Observatory wrote a paper on how AI language models could enhance nation state-backed influence operations. As a last resort, the authors consider polluting the internet with radioactive or misleading data to ensure that AI language models produce outputs that other language models can identify as AI-generated. However, the authors of this paper seem unaware that their "solution" might cause much worse MDM difficulties.
Literally False News
The public argument about ChatGPTs content-generation has focused on originality, bias, and academic honesty, but broader global issues are at stake. ChatGPT can influence public opinion, troll individuals, and interfere in local and national elections by creating and automating enormous amounts of social media material for specified audiences.
ChatGPT's capacity to generate textual and code output is crucial. ChatGPT can write Python scripts for social media bots and give diverse content for repeated posts. The tool's sophistication makes it irrelevant to one's language skills, especially English, when writing MDM propaganda.
I ordered ChatGPT to write a news piece in the style of big US publications declaring that Ukraine is on the verge of defeat in its fight against Russia due to corruption, desertion, and exhaustion in its army. I also gave it a fake reporter's byline and an unidentified NATO source's remark. The outcome appears convincing:
Worse, terrible performers can modify this piece to make it more credible. They can edit the general's name or add facts about current wars. Furthermore, such actors can create many versions of this report in different forms and distribute them separately, boosting its impact.
In this example, ChatGPT produced a news story regarding (fictional) greater moviegoer fatality rates:
Editing this example makes it more plausible. Dr. Jane Smith, the putative author of the medical report, might be replaced with a real-life medical person or a real victim of this supposed medical hazard.
Can deceptive texts be found? Detecting AI text is behind AI advancements. Minor AI-generated text alterations can upset these technologies.
Some OpenAI individuals have proposed covert methods to watermark AI-generated literature to prevent its abuse. AI models would create information that appears normal to humans but would follow a cryptographic formula that would warn other machines that it was AI-made. However, security experts are cautious since manually altering the content interrupts machine and human detection of AI-generated material.
How to Prepare
Cyber security and IT workers can research and use generative AI models to fight spear fishing and extortion. Governments may also launch MDM-defence projects.
In election cycles and global crises, regular people may be the most vulnerable to AI-produced deceit. Until regulation or subsequent technical advances, individuals must recognize exposure to AI-generated fraud, dating scams, other MDM activities.
A three-step verification method of new material in suspicious emails or social media posts can help identify AI content and manipulation. This three-step approach asks about the information's distribution platform (is it reliable? ), author (is the reader familiar with them? ), and plausibility given one's prior knowledge of the topic.
Consider a report by a trusted journalist that makes shocking statements in their typical manner. AI-powered fake news may be released on an unexpected platform, such as a newly created Facebook profile. However, if it links to a known media source, it is more likely to be real.
Though hard and subjective, this verification method may be the only barrier against manipulation for now.
AI language models:
How to Recognize an AI-Generated Article ChatGPT, the popular AI-powered chatbot, can and likely does generate medium.com-style articles.
AI-Generated Text Detectors Fail. Do This. Online tools claim to detect ChatGPT output. Even with superior programming, I tested some of these tools. pub
Why Original Writers Matter Despite AI Language Models Creative writers may never be threatened by AI language models.

Edward Williams
2 years ago
I currently manage 4 profitable online companies. I find all the generic advice and garbage courses very frustrating. The only advice you need is this.
This is for young entrepreneurs, especially in tech.
People give useless success advice on TikTok and Reddit. Early risers, bookworms, etc. Entrepreneurship courses. Work hard and hustle.
False. These aren't successful traits.
I mean, organization is good. As someone who founded several businesses and now works at a VC firm, I find these tips to be clichés.
Based on founding four successful businesses and working with other successful firms, here's my best actionable advice:
1. Choose a sector or a niche and become an expert in it.
This is more generic than my next tip, but it's a must-do that's often overlooked. Become an expert in the industry or niche you want to enter. Discover everything.
Buy (future) competitors' products. Understand consumers' pain points. Market-test. Target keyword combos. Learn technical details.
The most successful businesses I've worked with were all formed by 9-5 employees. They knew the industry's pain points. They started a business targeting these pain points.
2. Choose a niche or industry crossroads to target.
How do you choose an industry or niche? What if your industry is too competitive?
List your skills and hobbies. Randomness is fine. Find an intersection between two interests or skills.
Say you build websites well. You like cars.
Web design is a *very* competitive industry. Cars and web design?
Instead of web design, target car dealers and mechanics. Build a few fake demo auto mechanic websites, then cold call shops with poor websites. Verticalize.
I've noticed a pattern:
Person works in a particular industry for a corporation.
Person gains expertise in the relevant industry.
Person quits their job and launches a small business to address a problem that their former employer was unwilling to address.
I originally posted this on Reddit and it seemed to have taken off so I decided to share it with you all.
Focus on the product. When someone buys from you, you convince them the product's value exceeds the price. It's not fair and favors the buyer.
Creating a superior product or service will win. Narrowing this helps you outcompete others.
You may be their only (lucky) option.
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