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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
Read original post.
More on Web3 & Crypto
CyberPunkMetalHead
2 years ago
I talked to ChatGPT about the adoption of cryptocurrencies.
OpenAI's ChatGPT is an amazing AI-powered chatbot. It can write poetry, fiction, and marketing ideas. I was impressed how well ChatGPT followed the interview, albeit there were a few classics “I’m afraid I can’t do that”.
Full interview below.
Me: I'm your interviewer. We'll discuss crypto. Thanks for being interviewed. What do you think about cryptocurrency?
CGPT: Cryptocurrency is an innovative technology that could transform money and financial activities. It might boost the efficiency and security of financial institutions and let consumers deal directly without banks. Cryptocurrency is still a new and untested technology with many unknowns and hurdles before it can be broadly accepted.
Me: Over 22,000 cryptocurrencies exist, and many have little use. We need how much cryptocurrencies?
CGPT: The appropriate quantity will rely on a multitude of factors, including each cryptocurrency's use cases, adoption rate, and market rivalry. Only a few cryptocurrencies will likely receive widespread adoption and be successful. Many existing cryptocurrencies may not survive since they can't deliver new or valued solutions or compete with more established cryptocurrencies.
Me: Will cryptocurrencies grow? What's next for worldwide adoption?
CGPT: It's hard to forecast the future of cryptocurrencies because the acceptance of new technologies is unpredictable. I believe cryptocurrencies will expand and acquire popularity in the future years. Regulatory ambiguity, security concerns, and scalability issues must be overcome for this to happen. Cryptocurrency companies and organizations must engage together with governments and authorities to address these obstacles and establish a growth-friendly climate. Continued innovation and improvement of the technology, including public education and awareness, will drive acceptance.
Me: Do bear markets affect bitcoin adoption?
CGPT: On the one hand, a bear market might induce uncertainty and hesitation among potential consumers. Bear markets can present opportunities for long-term investors who can acquire cryptocurrencies at cheaper prices and are more likely to hang onto their assets. A bear market can also test the tenacity and power of the underlying technology and community, which can boost long-term confidence and adoption. A bear market might have profound and nuanced effects on bitcoin adoption.
Me: What are some likely outcomes if Bitcoin reaches $100,000 by next year?
CGPT: If Bitcoin saw rapid growth, it would undoubtedly have repercussions for the cryptocurrency market and economy. Possible scenarios include increased public interest and awareness of cryptocurrency, a surge in demand for Bitcoin and other cryptocurrencies, and a growth in the cryptocurrency industry's market value. By shifting their focus and cash to the cryptocurrency market, investors and traders may also affect other asset classes, such as traditional equities and commodities. Governments and financial organizations may focus more on the cryptocurrency sector as they try to grasp Bitcoin's rapid rise.
Me: Will other countries accept crypto as currency?
CGPT: It's hard to say if additional governments will adopt cryptocurrencies as legal tender. Some countries have recognized the promise of bitcoin and are exploring its use, while others are cautious. Adoption of bitcoin as legal cash may vary by country, based on financial infrastructure, rules, and political atmosphere. As cryptocurrency technology evolves and becomes more accepted, more governments may embrace it as legal tender.
Me: Final question: will the recent cryptocurrency hacks affect long term adoption?
CGPT: Hacks might tarnish cryptocurrency's reputation and public faith in its security, the technology underpinning it is continually improving. Many cryptocurrency projects have developed strong security mechanisms to prevent hacks and other dangers, and these safeguards will undoubtedly improve over time. The decentralized nature of cryptocurrency makes it more resistant to attacks. Hacks and other security breaches are a concern, but they may not affect cryptocurrency adoption.
Vitalik
3 years ago
An approximate introduction to how zk-SNARKs are possible (part 1)
You can make a proof for the statement "I know a secret number such that if you take the word ‘cow', add the number to the end, and SHA256 hash it 100 million times, the output starts with 0x57d00485aa". The verifier can verify the proof far more quickly than it would take for them to run 100 million hashes themselves, and the proof would also not reveal what the secret number is.
In the context of blockchains, this has 2 very powerful applications: Perhaps the most powerful cryptographic technology to come out of the last decade is general-purpose succinct zero knowledge proofs, usually called zk-SNARKs ("zero knowledge succinct arguments of knowledge"). A zk-SNARK allows you to generate a proof that some computation has some particular output, in such a way that the proof can be verified extremely quickly even if the underlying computation takes a very long time to run. The "ZK" part adds an additional feature: the proof can keep some of the inputs to the computation hidden.
You can make a proof for the statement "I know a secret number such that if you take the word ‘cow', add the number to the end, and SHA256 hash it 100 million times, the output starts with 0x57d00485aa". The verifier can verify the proof far more quickly than it would take for them to run 100 million hashes themselves, and the proof would also not reveal what the secret number is.
In the context of blockchains, this has two very powerful applications:
- Scalability: if a block takes a long time to verify, one person can verify it and generate a proof, and everyone else can just quickly verify the proof instead
- Privacy: you can prove that you have the right to transfer some asset (you received it, and you didn't already transfer it) without revealing the link to which asset you received. This ensures security without unduly leaking information about who is transacting with whom to the public.
But zk-SNARKs are quite complex; indeed, as recently as in 2014-17 they were still frequently called "moon math". The good news is that since then, the protocols have become simpler and our understanding of them has become much better. This post will try to explain how ZK-SNARKs work, in a way that should be understandable to someone with a medium level of understanding of mathematics.
Why ZK-SNARKs "should" be hard
Let us take the example that we started with: we have a number (we can encode "cow" followed by the secret input as an integer), we take the SHA256 hash of that number, then we do that again another 99,999,999 times, we get the output, and we check what its starting digits are. This is a huge computation.
A "succinct" proof is one where both the size of the proof and the time required to verify it grow much more slowly than the computation to be verified. If we want a "succinct" proof, we cannot require the verifier to do some work per round of hashing (because then the verification time would be proportional to the computation). Instead, the verifier must somehow check the whole computation without peeking into each individual piece of the computation.
One natural technique is random sampling: how about we just have the verifier peek into the computation in 500 different places, check that those parts are correct, and if all 500 checks pass then assume that the rest of the computation must with high probability be fine, too?
Such a procedure could even be turned into a non-interactive proof using the Fiat-Shamir heuristic: the prover computes a Merkle root of the computation, uses the Merkle root to pseudorandomly choose 500 indices, and provides the 500 corresponding Merkle branches of the data. The key idea is that the prover does not know which branches they will need to reveal until they have already "committed to" the data. If a malicious prover tries to fudge the data after learning which indices are going to be checked, that would change the Merkle root, which would result in a new set of random indices, which would require fudging the data again... trapping the malicious prover in an endless cycle.
But unfortunately there is a fatal flaw in naively applying random sampling to spot-check a computation in this way: computation is inherently fragile. If a malicious prover flips one bit somewhere in the middle of a computation, they can make it give a completely different result, and a random sampling verifier would almost never find out.
It only takes one deliberately inserted error, that a random check would almost never catch, to make a computation give a completely incorrect result.
If tasked with the problem of coming up with a zk-SNARK protocol, many people would make their way to this point and then get stuck and give up. How can a verifier possibly check every single piece of the computation, without looking at each piece of the computation individually? There is a clever solution.
see part 2
Scott Hickmann
3 years ago
Welcome
Welcome to Integrity's Web3 community!
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Stephen Moore
3 years ago
Trading Volume on OpenSea Drops by 99% as the NFT Boom Comes to an End
Wasn't that a get-rich-quick scheme?
OpenSea processed $2.7 billion in NFT transactions in May 2021.
Fueled by a crypto bull run, rumors of unfathomable riches, and FOMO, Bored Apes, Crypto Punks, and other JPEG-format trash projects flew off the virtual shelves, snatched up by retail investors and celebrities alike.
Over a year later, those shelves are overflowing and warehouses are backlogged. Since March, I've been writing less. In May and June, the bubble was close to bursting.
Apparently, the boom has finally peaked.
This bubble has punctured, and deflation has begun. On Aug. 28, OpenSea processed $9.34 million.
From that euphoric high of $2.7 billion, $9.34 million represents a spectacular decline of 99%.
OpenSea contradicts the data. A trading platform spokeswoman stated the comparison is unfair because it compares the site's highest and lowest trading days. They're the perfect two data points to assess the drop. OpenSea chooses to use ETH volume measures, which ignore crypto's shifting price. Since January 2022, monthly ETH volume has dropped 140%, according to Dune.
Unconvincing counterargument.
Further OpenSea indicators point to declining NFT demand:
Since January 2022, daily user visits have decreased by 50%.
Daily transactions have decreased by 50% since the beginning of the year in the same manner.
Off-platform, the floor price of Bored Apes has dropped from 145 ETH to 77 ETH. (At $4,800, a reduction from $700,000 to $370,000). Google search data shows waning popular interest.
It is a trend that will soon vanish, just like laser eyes.
NFTs haven't moved since the new year. Eminem and Snoop Dogg can utilize their apes in music videos or as 3D visuals to perform at the VMAs, but the reality is that NFTs have lost their public appeal and the market is trying to regain its footing.
They've lost popularity because?
Breaking records. The technology still lacks genuine use cases a year and a half after being popular.
They're pricey prestige symbols that have made a few people rich through cunning timing or less-than-savory scams or rug pulling. Over $10.5 billion has been taken through frauds, most of which are NFT enterprises promising to be the next Bored Apes, according to Web3 is going wonderfully. As the market falls, many ordinary investors realize they purchased into a self-fulfilling ecosystem that's halted. Many NFTs are sold between owner-held accounts to boost their price, data suggests. Most projects rely on social media excitement to debut with a high price before the first owners sell and chuckle to the bank. When they don't, the initiative fails, leaving investors high and dry.
NFTs are fading like laser eyes. Most people pushing the technology don't believe in it or the future it may bring. No, they just need a Kool-Aid-drunk buyer.
Everybody wins. When your JPEGs are worth 99% less than when you bought them, you've lost.
When demand reaches zero, many will lose.
Jari Roomer
2 years ago
Three Simple Daily Practices That Will Immediately Double Your Output
Most productive people are habitual.
Early in the day, do important tasks.
In his best-selling book Eat That Frog, Brian Tracy advised starting the day with your hardest, most important activity.
Most individuals work best in the morning. Energy and willpower peak then.
Mornings are also ideal for memory, focus, and problem-solving.
Thus, the morning is ideal for your hardest chores.
It makes sense to do these things during your peak performance hours.
Additionally, your morning sets the tone for the day. According to Brian Tracy, the first hour of the workday steers the remainder.
After doing your most critical chores, you may feel accomplished, confident, and motivated for the remainder of the day, which boosts productivity.
Develop Your Essentialism
In Essentialism, Greg McKeown claims that trying to be everything to everyone leads to mediocrity and tiredness.
You'll either burn out, be spread too thin, or compromise your ideals.
Greg McKeown advises Essentialism:
Clarify what’s truly important in your life and eliminate the rest.
Eliminating non-essential duties, activities, and commitments frees up time and energy for what matters most.
According to Greg McKeown, Essentialists live by design, not default.
You'll be happier and more productive if you follow your essentials.
Follow these three steps to live more essentialist.
Prioritize Your Tasks First
What matters most clarifies what matters less. List your most significant aims and values.
The clearer your priorities, the more you can focus on them.
On Essentialism, McKeown wrote, The ultimate form of effectiveness is the ability to deliberately invest our time and energy in the few things that matter most.
#2: Set Your Priorities in Order
Prioritize your priorities, not simply know them.
“If you don’t prioritize your life, someone else will.” — Greg McKeown
Planning each day and allocating enough time for your priorities is the best method to become more purposeful.
#3: Practice saying "no"
If a request or demand conflicts with your aims or principles, you must learn to say no.
Saying no frees up space for our priorities.
Place Sleep Above All Else
Many believe they must forego sleep to be more productive. This is false.
A productive day starts with a good night's sleep.
Matthew Walker (Why We Sleep) says:
“Getting a good night’s sleep can improve cognitive performance, creativity, and overall productivity.”
Sleep helps us learn, remember, and repair.
Unfortunately, 35% of people don't receive the recommended 79 hours of sleep per night.
Sleep deprivation can cause:
increased risk of diabetes, heart disease, stroke, and obesity
Depression, stress, and anxiety risk are all on the rise.
decrease in general contentment
decline in cognitive function
To live an ideal, productive, and healthy life, you must prioritize sleep.
Follow these six sleep optimization strategies to obtain enough sleep:
Establish a nightly ritual to relax and prepare for sleep.
Avoid using screens an hour before bed because the blue light they emit disrupts the generation of melatonin, a necessary hormone for sleep.
Maintain a regular sleep schedule to control your body's biological clock (and optimizes melatonin production)
Create a peaceful, dark, and cool sleeping environment.
Limit your intake of sweets and caffeine (especially in the hours leading up to bedtime)
Regular exercise (but not right before you go to bed, because your body temperature will be too high)
Sleep is one of the best ways to boost productivity.
Sleep is crucial, says Matthew Walker. It's the key to good health and longevity.
Muthinja
3 years ago
Why don't you relaunch my startup projects?
Open to ideas or acquisitions
Failure is an unavoidable aspect of life, yet many recoil at the word.
I've worked on unrelated startup projects. This is a list of products I developed (often as the tech lead or co-founder) and why they failed to launch.
Chess Bet (Betting)
As a chess player who plays 5 games a day and has an ELO rating of 2100, I tried to design a chess engine to rival stockfish and Houdini.
While constructing my chess engine, my cofounder asked me about building a p2p chess betting app. Chess Bet. There couldn't be a better time.
Two people in different locations could play a staked game. The winner got 90% of the bet and we got 10%. The business strategy was clear, but our mini-launch was unusual.
People started employing the same cheat engines I mentioned, causing user churn and defaming our product.
It was the first programming problem I couldn't solve after building a cheat detection system based on player move strengths and prior games. Chess.com, the most famous online chess software, still suffers from this.
We decided to pivot because we needed an expensive betting license.
We relaunched as Chess MVP after deciding to focus on chess learning. A platform for teachers to create chess puzzles and teach content. Several chess students used our product, but the target market was too tiny.
We chose to quit rather than persevere or pivot.
BodaCare (Insure Tech)
‘BodaBoda’ in Swahili means Motorcycle. My Dad approached me in 2019 (when I was working for a health tech business) about establishing an Insurtech/fintech solution for motorbike riders to pay for insurance using SNPL.
We teamed up with an underwriter to market motorcycle insurance. Once they had enough premiums, they'd get an insurance sticker in the mail. We made it better by splitting the cover in two, making it more reasonable for motorcyclists struggling with lump-sum premiums.
Lack of capital and changing customer behavior forced us to close, with 100 motorcyclists paying 0.5 USD every day. Our unit econ didn't make sense, and CAC and retention capital only dug us deeper.
Circle (Social Networking)
Having learned from both product failures, I began to understand what worked and what didn't. While reading through Instagram, an idea struck me.
Suppose social media weren't virtual.
Imagine meeting someone on your way home. Like-minded person
People were excited about social occasions after covid restrictions were eased. Anything to escape. I just built a university student-popular experiences startup. Again, there couldn't be a better time.
I started the Android app. I launched it on Google Beta and oh my! 200 people joined in two days.
It works by signaling if people are in a given place and allowing users to IM in hopes of meeting up in near real-time. Playstore couldn't deploy the app despite its success in beta for unknown reasons. I appealed unsuccessfully.
My infrastructure quickly lost users because I lacked funding.
In conclusion
This essay contains many failures, some of which might have been avoided and others not, but they were crucial learning points in my startup path.
If you liked any idea, I have the source code on Github.
Happy reading until then!