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

Chris
2 years ago
What the World's Most Intelligent Investor Recently Said About Crypto
Cryptoshit. This thing is crazy to buy.
Charlie Munger is revered and powerful in finance.
Munger, vice chairman of Berkshire Hathaway, is noted for his wit, no-nonsense attitude to investment, and ability to spot promising firms and markets.
Munger's crypto views have upset some despite his reputation as a straight shooter.
“There’s only one correct answer for intelligent people, just totally avoid all the people that are promoting it.” — Charlie Munger
The Munger Interview on CNBC (4:48 secs)
This Monday, CNBC co-anchor Rebecca Quick interviewed Munger and brought up his 2007 statement, "I'm not allowed to have an opinion on this subject until I can present the arguments against my viewpoint better than the folks who are supporting it."
Great investing and life advice!
If you can't explain the opposing reasons, you're not informed enough to have an opinion.
In today's world, it's important to grasp both sides of a debate before supporting one.
Rebecca inquired:
Does your Wall Street Journal article on banning cryptocurrency apply? If so, would you like to present the counterarguments?
Mungers reply:
I don't see any viable counterarguments. I think my opponents are idiots, hence there is no sensible argument against my position.
Consider his words.
Do you believe Munger has studied both sides?
He said, "I assume my opponents are idiots, thus there is no sensible argument against my position."
This is worrisome, especially from a guy who once encouraged studying both sides before forming an opinion.
Munger said:
National currencies have benefitted humanity more than almost anything else.
Hang on, I think we located the perpetrator.
Munger thinks crypto will replace currencies.
False.
I doubt he studied cryptocurrencies because the name is deceptive.
He misread a headline as a Dollar destroyer.
Cryptocurrencies are speculations.
Like Tesla, Amazon, Apple, Google, Microsoft, etc.
Crypto won't replace dollars.
In the interview with CNBC, Munger continued:
“I’m not proud of my country for allowing this crap, what I call the cryptoshit. It’s worthless, it’s no good, it’s crazy, it’ll do nothing but harm, it’s anti-social to allow it.” — Charlie Munger
Not entirely inaccurate.
Daily cryptos are established solely to pump and dump regular investors.
Let's get into Munger's crypto aversion.
Rat poison is bitcoin.
Munger famously dubbed Bitcoin rat poison and a speculative bubble that would implode.
Partially.
But the bubble broke. Since 2021, the market has fallen.
Scam currencies and NFTs are being eliminated, which I like.
Whoa.
Why does Munger doubt crypto?
Mungers thinks cryptocurrencies has no intrinsic value.
He worries about crypto fraud and money laundering.
Both are valid issues.
Yet grouping crypto is intellectually dishonest.
Ethereum, Bitcoin, Solana, Chainlink, Flow, and Dogecoin have different purposes and values (not saying they’re all good investments).
Fraudsters who hurt innocents will be punished.
Therefore, complaining is useless.
Why not stop it? Repair rather than complain.
Regrettably, individuals today don't offer solutions.
Blind Areas for Mungers
As with everyone, Mungers' bitcoin views may be impacted by his biases and experiences.
OK.
But Munger has always advocated classic value investing and may be wary of investing in an asset outside his expertise.
Mungers' banking and insurance investments may influence his bitcoin views.
Could a coworker or acquaintance have told him crypto is bad and goes against traditional finance?
Right?
Takeaways
Do you respect Charlie Mungers?
Yes and no, like any investor or individual.
To understand Mungers' bitcoin beliefs, you must be critical.
Mungers is a successful investor, but his views about bitcoin should be considered alongside other viewpoints.
Munger’s success as an investor has made him an influencer in the space.
Influence gives power.
He controls people's thoughts.
Munger's ok. He will always be heard.
I'll do so cautiously.

Yusuf Ibrahim
3 years ago
How to sell 10,000 NFTs on OpenSea for FREE (Puppeteer/NodeJS)
So you've finished your NFT collection and are ready to sell it. Except you can't figure out how to mint them! Not sure about smart contracts or want to avoid rising gas prices. You've tried and failed with apps like Mini mouse macro, and you're not familiar with Selenium/Python. Worry no more, NodeJS and Puppeteer have arrived!
Learn how to automatically post and sell all 1000 of my AI-generated word NFTs (Nakahana) on OpenSea for FREE!
My NFT project — Nakahana |
NOTE: Only NFTs on the Polygon blockchain can be sold for free; Ethereum requires an initiation charge. NFTs can still be bought with (wrapped) ETH.
If you want to go right into the code, here's the GitHub link: https://github.com/Yusu-f/nftuploader
Let's start with the knowledge and tools you'll need.
What you should know
You must be able to write and run simple NodeJS programs. You must also know how to utilize a Metamask wallet.
Tools needed
- NodeJS. You'll need NodeJs to run the script and NPM to install the dependencies.
- Puppeteer – Use Puppeteer to automate your browser and go to sleep while your computer works.
- Metamask – Create a crypto wallet and sign transactions using Metamask (free). You may learn how to utilize Metamask here.
- Chrome – Puppeteer supports Chrome.
Let's get started now!
Starting Out
Clone Github Repo to your local machine. Make sure that NodeJS, Chrome, and Metamask are all installed and working. Navigate to the project folder and execute npm install. This installs all requirements.
Replace the “extension path” variable with the Metamask chrome extension path. Read this tutorial to find the path.
Substitute an array containing your NFT names and metadata for the “arr” variable and the “collection_name” variable with your collection’s name.
Run the script.
After that, run node nftuploader.js.
Open a new chrome instance (not chromium) and Metamask in it. Import your Opensea wallet using your Secret Recovery Phrase or create a new one and link it. The script will be unable to continue after this but don’t worry, it’s all part of the plan.
Next steps
Open your terminal again and copy the route that starts with “ws”, e.g. “ws:/localhost:53634/devtools/browser/c07cb303-c84d-430d-af06-dd599cf2a94f”. Replace the path in the connect function of the nftuploader.js script.
const browser = await puppeteer.connect({ browserWSEndpoint: "ws://localhost:58533/devtools/browser/d09307b4-7a75-40f6-8dff-07a71bfff9b3", defaultViewport: null });
Rerun node nftuploader.js. A second tab should open in THE SAME chrome instance, navigating to your Opensea collection. Your NFTs should now start uploading one after the other! If any errors occur, the NFTs and errors are logged in an errors.log file.
Error Handling
The errors.log file should show the name of the NFTs and the error type. The script has been changed to allow you to simply check if an NFT has already been posted. Simply set the “searchBeforeUpload” setting to true.
We're done!
If you liked it, you can buy one of my NFTs! If you have any concerns or would need a feature added, please let me know.
Thank you to everyone who has read and liked. I never expected it to be so popular.

Miguel Saldana
3 years ago
Crypto Inheritance's Catch-22
Security, privacy, and a strategy!
How to manage digital assets in worst-case scenarios is a perennial crypto concern. Since blockchain and bitcoin technology is very new, this hasn't been a major issue. Many early developers are still around, and many groups created around this technology are young and feel they have a lot of life remaining. This is why inheritance and estate planning in crypto should be handled promptly. As cryptocurrency's intrinsic worth rises, many people in the ecosystem are holding on to assets that might represent generational riches. With that much value, it's crucial to have a plan. Creating a solid plan entails several challenges.
the initial hesitation in coming up with a plan
The technical obstacles to ensuring the assets' security and privacy
the passing of assets from a deceased or incompetent person
Legal experts' lack of comprehension and/or understanding of how to handle and treat cryptocurrency.
This article highlights several challenges, a possible web3-native solution, and how to learn more.
The Challenge of Inheritance:
One of the biggest hurdles to inheritance planning is starting the conversation. As humans, we don't like to think about dying. Early adopters will experience crazy gains as cryptocurrencies become more popular. Creating a plan is crucial if you wish to pass on your riches to loved ones. Without a plan, the technical and legal issues I barely mentioned above would erode value by requiring costly legal fees and/or taxes, and you could lose everything if wallets and assets are not distributed appropriately (associated with the private keys). Raising awareness of the consequences of not having a plan should motivate people to make one.
Controlling Change:
Having an inheritance plan for your digital assets is crucial, but managing the guts and bolts poses a new set of difficulties. Privacy and security provided by maintaining your own wallet provide different issues than traditional finances and assets. Traditional finance is centralized (say a stock brokerage firm). You can assign another person to handle the transfer of your assets. In crypto, asset transfer is reimagined. One may suppose future transaction management is doable, but the user must consent, creating an impossible loop.
I passed away and must send a transaction to the person I intended to deliver it to.
I have to confirm or authorize the transaction, but I'm dead.
In crypto, scheduling a future transaction wouldn't function. To transfer the wallet and its contents, we'd need the private keys and/or seed phrase. Minimizing private key exposure is crucial to protecting your crypto from hackers, social engineering, and phishing. People have lost private keys after utilizing Life Hack-type tactics to secure them. People that break and hide their keys, lose them, or make them unreadable won't help with managing and/or transferring. This will require a derived solution.
Legal Challenges and Implications
Unlike routine cryptocurrency transfers and transactions, local laws may require special considerations. Even in the traditional world, estate/inheritance taxes, how assets will be split, and who executes the will must be considered. Many lawyers aren't crypto-savvy, which complicates the matter. There will be many hoops to jump through to safeguard your crypto and traditional assets and give them to loved ones.
Knowing RUFADAA/UFADAA, depending on your state, is vital for Americans. UFADAA offers executors and trustees access to online accounts (which crypto wallets would fall into). RUFADAA was changed to limit access to the executor to protect assets. RUFADAA outlines how digital assets are administered following death and incapacity in the US.
A Succession Solution
Having a will and talking about who would get what is the first step to having a solution, but using a Dad Mans Switch is a perfect tool for such unforeseen circumstances. As long as the switch's controller has control, nothing happens. Losing control of the switch initiates a state transition.
Subway or railway operations are examples. Modern control systems need the conductor to hold a switch to keep the train going. If they can't, the train stops.
Enter Sarcophagus
Sarcophagus is a decentralized dead man's switch built on Ethereum and Arweave. Sarcophagus allows actors to maintain control of their possessions even while physically unable to do so. Using a programmable dead man's switch and dual encryption, anything can be kept and passed on. This covers assets, secrets, seed phrases, and other use cases to provide authority and control back to the user and release trustworthy services from this work. Sarcophagus is built on a decentralized, transparent open source codebase. Sarcophagus is there if you're unprepared.
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CyberPunkMetalHead
2 years ago
Why Bitcoin NFTs Are Incomprehensible yet Likely Here to Stay
I'm trying to understand why Bitcoin NFTs aren't ready.
Ordinals, a new Bitcoin protocol, has been controversial. NFTs can be added to Bitcoin transactions using the protocol. They are not tokens or fungible. Bitcoin NFTs are transaction metadata. Yes. They're not owned.
In January, the Ordinals protocol allowed data like photos to be directly encoded onto sats, the smallest units of Bitcoin worth 0.00000001 BTC, on the Bitcoin blockchain. Ordinals does not need a sidechain or token like other techniques. The Ordinals protocol has encoded JPEG photos, digital art, new profile picture (PFP) projects, and even 1993 DOOM onto the Bitcoin network.
Ordinals inscriptions are permanent digital artifacts preserved on the Bitcoin blockchain. It differs from Ethereum, Solana, and Stacks NFT technologies that allow smart contract creators to change information. Ordinals store the whole image or content on the blockchain, not just a link to an external server, unlike centralized databases, which can change the linked image, description, category, or contract identifier.
So far, more than 50,000 ordinals have been produced on the Bitcoin blockchain, and some of them have already been sold for astronomical amounts. The Ethereum-based CryptoPunks NFT collection spawned Ordinal Punk. Inscription 620 sold for 9.5 BTC, or $218,000, the most.
Segwit and Taproot, two important Bitcoin blockchain updates, enabled this. These protocols store transaction metadata, unlike Ethereum, where the NFT is the token. Bitcoin's NFT is a sat's transaction details.
What effects do ordinary values and NFTs have on the Bitcoin blockchain?
Ordinals will likely have long-term effects on the Bitcoin Ecosystem since they store, transact, and compute more data.
Charges Ordinals introduce scalability challenges. The Bitcoin network has limited transaction throughput and increased fees during peak demand. NFTs could make network transactions harder and more expensive. Ordinals currently occupy over 50% of block space, according to Glassnode.
One of the protocols that supported Ordinals Taproot has also seen a huge uptick:
Taproot use increases block size and transaction costs.
This could cause network congestion but also support more L2s with Ordinals-specific use cases. Dune info here.
Storage Needs The Bitcoin blockchain would need to store more data to store NFT data directly. Since ordinals were introduced, blocksize has tripled from 0.7mb to over 2.2mb, which could increase storage costs and make it harder for nodes to join the network.
Use Case Diversity On the other hand, NFTs on the Bitcoin blockchain could broaden Bitcoin's use cases beyond storage and payment. This could expand Bitcoin's user base. This is two-sided. Bitcoin was designed to be trustless, decentralized, peer-to-peer money.
Chain to permanently store NFTs as ordinals will change everything.
Popularity rise This new use case will boost Bitcoin appeal, according to some. This argument fails since Bitcoin is the most popular cryptocurrency. Popularity doesn't require a new use case. Cryptocurrency adoption boosts Bitcoin. It need not compete with Ethereum or provide extra benefits to crypto investors. If there was a need for another chain that supports NFTs (there isn't), why would anyone choose the slowest and most expensive network? It appears contradictory and unproductive.
Nonetheless, holding an NFT on the Bitcoin blockchain is more secure than any other blockchain, but this has little utility.
Bitcoin NFTs are undoubtedly controversial. NFTs are strange and perhaps harmful to Bitcoin's mission. If Bitcoin NFTs are here to stay, I hope a sidechain or rollup solution will take over and leave the base chain alone.

Scott Stockdale
3 years ago
A Day in the Life of Lex Fridman Can Help You Hit 6-Month Goals
The Lex Fridman podcast host has interviewed Elon Musk.
Lex is a minimalist YouTuber. His videos are sloppy. Suits are his trademark.
In a video, he shares a typical day. I've smashed my 6-month goals using its ideas.
Here's his schedule.
Morning Mantra
Not woo-woo. Lex's mantra reflects his practicality.
Four parts.
Rulebook
"I remember the game's rules," he says.
Among them:
Sleeping 6–8 hours nightly
1–3 times a day, he checks social media.
Every day, despite pain, he exercises. "I exercise uninjured body parts."
Visualize
He imagines his day. "Like Sims..."
He says three things he's grateful for and contemplates death.
"Today may be my last"
Objectives
Then he visualizes his goals. He starts big. Five-year goals.
Short-term goals follow. Lex says they're year-end goals.
Near but out of reach.
Principles
He lists his principles. Assertions. His goals.
He acknowledges his cliche beliefs. Compassion, empathy, and strength are key.
Here's my mantra routine:
Four-Hour Deep Work
Lex begins a four-hour deep work session after his mantra routine. Today's toughest.
AI is Lex's specialty. His video doesn't explain what he does.
Clearly, he works hard.
Before starting, he has water, coffee, and a bathroom break.
"During deep work sessions, I minimize breaks."
He's distraction-free. Phoneless. Silence. Nothing. Any loose ideas are typed into a Google doc for later. He wants to work.
"Just get the job done. Don’t think about it too much and feel good once it’s complete." — Lex Fridman
30-Minute Social Media & Music
After his first deep work session, Lex rewards himself.
10 minutes on social media, 20 on music. Upload content and respond to comments in 10 minutes. 20 minutes for guitar or piano.
"In the real world, I’m currently single, but in the music world, I’m in an open relationship with this beautiful guitar. Open relationship because sometimes I cheat on her with the acoustic." — Lex Fridman
Two-hour exercise
Then exercise for two hours.
Daily runs six miles. Then he chooses how far to go. Run time is an hour.
He does bodyweight exercises. Every minute for 15 minutes, do five pull-ups and ten push-ups. It's David Goggins-inspired. He aims for an hour a day.
He's hungry. Before running, he takes a salt pill for electrolytes.
He'll then take a one-minute cold shower while listening to cheesy songs. Afterward, he might eat.
Four-Hour Deep Work
Lex's second work session.
He works 8 hours a day.
Again, zero distractions.
Eating
The video's meal doesn't look appetizing, but it's healthy.
It's ground beef with vegetables. Cauliflower is his "ground-floor" veggie. "Carrots are my go-to party food."
Lex's keto diet includes 1800–2000 calories.
He drinks a "nutrient-packed" Atheltic Greens shake and takes tablets. It's:
One daily tablet of sodium.
Magnesium glycinate tablets stopped his keto headaches.
Potassium — "For electrolytes"
Fish oil: healthy joints
“So much of nutrition science is barely a science… I like to listen to my own body and do a one-person, one-subject scientific experiment to feel good.” — Lex Fridman
Four-hour shallow session
This work isn't as mentally taxing.
Lex planned to:
Finish last session's deep work (about an hour)
Adobe Premiere podcasting (about two hours).
Email-check (about an hour). Three times a day max. First, check for emergencies.
If he's sick, he may watch Netflix or YouTube documentaries or visit friends.
“The possibilities of chaos are wide open, so I can do whatever the hell I want.” — Lex Fridman
Two-hour evening reading
Nonstop work.
Lex ends the day reading academic papers for an hour. "Today I'm skimming two machine learning and neuroscience papers"
This helps him "think beyond the paper."
He reads for an hour.
“When I have a lot of energy, I just chill on the bed and read… When I’m feeling tired, I jump to the desk…” — Lex Fridman
Takeaways
Lex's day-in-the-life video is inspiring.
He has positive energy and works hard every day.
Schedule:
Mantra Routine includes rules, visualizing, goals, and principles.
Deep Work Session #1: Four hours of focus.
10 minutes social media, 20 minutes guitar or piano. "Music brings me joy"
Six-mile run, then bodyweight workout. Two hours total.
Deep Work #2: Four hours with no distractions. Google Docs stores random thoughts.
Lex supplements his keto diet.
This four-hour session is "open to chaos."
Evening reading: academic papers followed by fiction.
"I value some things in life. Work is one. The other is loving others. With those two things, life is great." — Lex Fridman

Caleb Naysmith
3 years ago
Ads Coming to Medium?
Could this happen?
Medium isn't like other social media giants. It wasn't a dot-com startup that became a multi-trillion-dollar social media firm. It launched in 2012 but didn't gain popularity until later. Now, it's one of the largest sites by web traffic, but it's still little compared to most. Most of Medium's traffic is external, but they don't run advertisements, so it's all about memberships.
Medium isn't profitable, but they don't disclose how terrible the problem is. Most of the $163 million they raised has been spent or used for acquisitions. If the money turns off, Medium can't stop paying its writers since the site dies. Writers must be paid, but they can't substantially slash payment without hurting the platform. The existing model needs scale to be viable and has a low ceiling. Facebook and other free social media platforms are struggling to retain users. Here, you must pay to appreciate it, and it's bad for writers AND readers. If I had the same Medium stats on YouTube, I'd make thousands of dollars a month.
Then what? Medium has tried to monetize by offering writers a cut of new members, but that's unsustainable. People-based growth is limited. Imagine recruiting non-Facebook users and getting them to pay to join. Some may, but I'd rather write.
Alternatives:
Donation buttons
Tiered subscriptions ($5, $10, $25, etc.)
Expanding content
and these may be short-term fixes, but they're not as profitable as allowing ads. Advertisements can pay several dollars per click and cents every view. If you get 40,000 views a month like me, that's several thousand instead of a few hundred. Also, Medium would have enough money to split ad revenue with writers, who would make more. I'm among the top 6% of Medium writers. Only 6% of Medium writers make more than $100, and I made $500 with 35,000 views last month. Compared to YouTube, the top 1% of Medium authors make a lot. Mr. Beast and PewDiePie make MILLIONS a month, yet top Medium writers make tens of thousands. Sure, paying 3 or 4 people a few grand, or perhaps tens of thousands, will keep them around. What if great authors leveraged their following to go huge on YouTube and abandoned Medium? If people use Medium to get successful on other platforms, Medium will be continuously cycling through authors and paying them to stay.
Ads might make writing on Medium more profitable than making videos on YouTube because they could preserve the present freemium model and pay users based on internal views. The $5 might be ad-free.
Consider: Would you accept Medium ads? A $5 ad-free version + pay-as-you-go, etc. What are your thoughts on this?
Original post available here
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