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

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

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.

Elnaz Sarraf
3 years ago
Why Bitcoin's Crash Could Be Good for Investors

The crypto market crashed in June 2022. Bitcoin and other cryptocurrencies hit their lowest prices in over a year, causing market panic. Some believe this crash will benefit future investors.
Before I discuss how this crash might help investors, let's examine why it happened. Inflation in the U.S. reached a 30-year high in 2022 after Russia invaded Ukraine. In response, the U.S. Federal Reserve raised interest rates by 0.5%, the most in almost 20 years. This hurts cryptocurrencies like Bitcoin. Higher interest rates make people less likely to invest in volatile assets like crypto, so many investors sold quickly.

The crypto market collapsed. Bitcoin, Ethereum, and Binance dropped 40%. Other cryptos crashed so hard they were delisted from almost every exchange. Bitcoin peaked in April 2022 at $41,000, but after the May interest rate hike, it crashed to $28,000. Bitcoin investors were worried. Even in bad times, this crash is unprecedented.
Bitcoin wasn't "doomed." Before the crash, LUNA was one of the top 5 cryptos by market cap. LUNA was trading around $80 at the start of May 2022, but after the rate hike?
Less than 1 cent. LUNA lost 99.99% of its value in days and was removed from every crypto exchange. Bitcoin's "crash" isn't as devastating when compared to LUNA.
Many people said Bitcoin is "due" for a LUNA-like crash and that the only reason it hasn't crashed is because it's bigger. Still false. If so, Bitcoin should be worth zero by now. We didn't. Instead, Bitcoin reached 28,000, then 29k, 30k, and 31k before falling to 18k. That's not the world's greatest recovery, but it shows Bitcoin's safety.
Bitcoin isn't falling constantly. It fell because of the initial shock of interest rates, but not further. Now, Bitcoin's value is more likely to rise than fall. Bitcoin's low price also attracts investors. They know what prices Bitcoin can reach with enough hype, and they want to capitalize on low prices before it's too late.

Bitcoin's crash was bad, but in a way it wasn't. To understand, consider 2021. In March 2021, Bitcoin surpassed $60k for the first time. Elon Musk's announcement in May that he would no longer support Bitcoin caused a massive crash in the crypto market. In May 2017, Bitcoin's price hit $29,000. Elon Musk's statement isn't worth more than the Fed raising rates. Many expected this big announcement to kill Bitcoin.

Not so. Bitcoin crashed from $58k to $31k in 2021. Bitcoin fell from $41k to $28k in 2022. This crash is smaller. Bitcoin's price held up despite tensions and stress, proving investors still believe in it. What happened after the initial crash in the past?
Bitcoin fell until mid-July. This is also something we’re not seeing today. After a week, Bitcoin began to improve daily. Bitcoin's price rose after mid-July. Bitcoin's price fluctuated throughout the rest of 2021, but it topped $67k in November. Despite no major changes, the peak occurred after the crash. Elon Musk seemed uninterested in crypto and wasn't likely to change his mind soon. What triggered this peak? Nothing, really. What really happened is that people got over the initial statement. They forgot.
Internet users have goldfish-like attention spans. People quickly forgot the crash's cause and were back investing in crypto months later. Despite the market's setbacks, more crypto investors emerged by the end of 2017. Who gained from these peaks? Bitcoin investors who bought low. Bitcoin not only recovered but also doubled its ROI. It was like a movie, and it shows us what to expect from Bitcoin in the coming months.
The current Bitcoin crash isn't as bad as the last one. LUNA is causing market panic. LUNA and Bitcoin are different cryptocurrencies. LUNA crashed because Terra wasn’t able to keep its peg with the USD. Bitcoin is unanchored. It's one of the most decentralized investments available. LUNA's distrust affected crypto prices, including Bitcoin, but it won't last forever.
This is why Bitcoin will likely rebound in the coming months. In 2022, people will get over the rise in interest rates and the crash of LUNA, just as they did with Elon Musk's crypto stance in 2021. When the world moves on to the next big controversy, Bitcoin's price will soar.
Bitcoin may recover for another reason. Like controversy, interest rates fluctuate. The Russian invasion caused this inflation. World markets will stabilize, prices will fall, and interest rates will drop.
Next, lower interest rates could boost Bitcoin's price. Eventually, it will happen. The U.S. economy can't sustain such high interest rates. Investors will put every last dollar into Bitcoin if interest rates fall again.
Bitcoin has proven to be a stable investment. This boosts its investment reputation. Even if Ethereum dethrones Bitcoin as crypto king one day (or any other crypto, for that matter). Bitcoin may stay on top of the crypto ladder for a while. We'll have to wait a few months to see if any of this is true.
This post is a summary. Read the full article here.
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MartinEdic
2 years ago
Russia Through the Windows: It's Very Bad
And why we must keep arming Ukraine
Russian expatriates write about horrific news from home.
Read this from Nadin Brzezinski. She's not a native English speaker, so there are grammar errors, but her tale smells true.
Terrible truth.
There's much more that reveals Russia's grim reality.
Non-leadership. Millions of missing supplies are presumably sold for profit, leaving untrained troops without food or gear. Missile attacks pause because they run out. Fake schemes to hold talks as a way of stalling while they scramble for solutions.
Street men were mobilized. Millions will be ground up to please a crazed despot. Fear, wrath, and hunger pull apart civilization.
It's the most dystopian story, but Ukraine is worse. Destruction of a society, country, and civilization. Only the invaders' corruption and incompetence save the Ukrainians.
Rochester, NY. My suburb had many Soviet-era Ukrainian refugees. Their kids were my classmates. Fifty years later, many are still my friends. I loved their food and culture. My town has 20,000 Ukrainians.
Grieving but determined. They don't quit. They won't quit. Russians are eternal enemies.
It's the Russian people's willingness to tolerate corruption, abuse, and stupidity by their leaders. They are paying. 65000 dead. Ruined economy. No freedom to speak. Americans do not appreciate that freedom as we should.
It lets me write/publish.
Russian friends are shocked. Many are here because their parents escaped Russian anti-semitism and authoritarian oppression. A Russian cultural legacy says a strongman's methods are admirable.
A legacy of a slavery history disguised as serfdom. Peasants and Princes.
Read Tolstoy. Then Anna Karenina. The main characters are princes and counts, whose leaders are incompetent idiots with wealth and power.
Peasants who die in their wars due to incompetence are nameless ciphers.
Sound familiar?

Cody Collins
2 years ago
The direction of the economy is as follows.
What quarterly bank earnings reveal
Big banks know the economy best. Unless we’re talking about a housing crisis in 2007…
Banks are crucial to the U.S. economy. The Fed, communities, and investments exchange money.
An economy depends on money flow. Banks' views on the economy can affect their decision-making.
Most large banks released quarterly earnings and forward guidance last week. Others were pessimistic about the future.
What Makes Banks Confident
Bank of America's profit decreased 30% year-over-year, but they're optimistic about the economy. Comparatively, they're bullish.
Who banks serve affects what they see. Bank of America supports customers.
They think consumers' future is bright. They believe this for many reasons.
The average customer has decent credit, unless the system is flawed. Bank of America's new credit card and mortgage borrowers averaged 771. New-car loan and home equity borrower averages were 791 and 797.
2008's housing crisis affected people with scores below 620.
Bank of America and the economy benefit from a robust consumer. Major problems can be avoided if individuals maintain spending.
Reasons Other Banks Are Less Confident
Spending requires income. Many companies, mostly in the computer industry, have announced they will slow or freeze hiring. Layoffs are frequently an indication of poor times ahead.
BOA is positive, but investment banks are bearish.
Jamie Dimon, CEO of JPMorgan, outlined various difficulties our economy could confront.
But geopolitical tension, high inflation, waning consumer confidence, the uncertainty about how high rates have to go and the never-before-seen quantitative tightening and their effects on global liquidity, combined with the war in Ukraine and its harmful effect on global energy and food prices are very likely to have negative consequences on the global economy sometime down the road.
That's more headwinds than tailwinds.
JPMorgan, which helps with mergers and IPOs, is less enthusiastic due to these concerns. Incoming headwinds signal drying liquidity, they say. Less business will be done.
Final Reflections
I don't think we're done. Yes, stocks are up 10% from a month ago. It's a long way from old highs.
I don't think the stock market is a strong economic indicator.
Many executives foresee a 2023 recession. According to the traditional definition, we may be in a recession when Q2 GDP statistics are released next week.
Regardless of criteria, I predict the economy will have a terrible year.
Weekly layoffs are announced. Inflation persists. Will prices return to 2020 levels if inflation cools? Perhaps. Still expensive energy. Ukraine's war has global repercussions.
I predict BOA's next quarter earnings won't be as bullish about the consumer's strength.

Julie Plavnik
3 years ago
Why the Creator Economy needs a Web3 upgrade
Looking back into the past can help you understand what's happening today and why.
"Creator economy" conjures up images of originality, sincerity, and passion. Where do Michelangelos and da Vincis push advancement with their gifts without battling for bread and proving themselves posthumously?
Creativity has been as long as humanity, but it's just recently become a new economic paradigm. We even talk about Web3 now.
Let's examine the creative economy's history to better comprehend it. What brought us here? Looking back can help you understand what's happening now.
No yawning, I promise 😉.
Creator Economy's history
Long, uneven transition to creator economy. Let's examine the economic and societal changes that led us there.
1. Agriculture to industry
Mid-18th-century Industrial Revolution led to shift from agriculture to manufacturing. The industrial economy lasted until World War II.
The industrial economy's principal goal was to provide more affordable, accessible commodities.
Unlike today, products were scarce and inaccessible.
To fulfill its goals, industrialization triggered enormous economic changes, moving power from agrarians to manufacturers. Industrialization brought hard work, rivalry, and new ideas connected to production and automation. Creative thinkers focused on that then.
It doesn't mean music, poetry, or painting had no place back then. They weren't top priority. Artists were independent. The creative field wasn't considered a different economic subdivision.
2. The consumer economy
Manufacturers produced more things than consumers desired after World War II. Stuff was no longer scarce.
The economy must make customers want to buy what the market offers.
The consumer economic paradigm supplanted the industrial one. Customers (or consumers) replaced producers as the new economic center.
Salesmen, marketing, and journalists also played key roles (TV, radio, newspapers, etc.). Mass media greatly boosted demand for goods, defined trends, and changed views regarding nearly everything.
Mass media also gave rise to pop culture, which focuses on mass-market creative products. Design, printing, publishing, multi-media, audio-visual, cinematographic productions, etc. supported pop culture.
The consumer paradigm generated creative occupations and activities, unlike the industrial economy. Creativity was limited by the need for wide appeal.
Most creators were corporate employees.
Creating a following and making a living from it were difficult.
Paul Saffo said that only journalists and TV workers were known. Creators who wished to be known relied on producers, publishers, and other gatekeepers. To win their favor was crucial. Luck was the best tactic.
3. The creative economy
Consumer economy was digitized in the 1990s. IT solutions transformed several economic segments. This new digital economy demanded innovative, digital creativity.
Later, states declared innovation a "valuable asset that creates money and jobs." They also introduced the "creative industries" and the "creative economy" (not creator!) and tasked themselves with supporting them. Australia and the UK were early adopters.
Individual skill, innovation, and intellectual property fueled the creative economy. Its span covered design, writing, audio, video material, etc. The creative economy required IT-powered activity.
The new challenge was to introduce innovations to most economic segments and meet demand for digital products and services.
Despite what the title "creative economy" may imply, it was primarily oriented at meeting consumer needs. It didn't provide inventors any new options to become entrepreneurs. Instead of encouraging innovators to flourish on their own, the creative economy emphasized "employment-based creativity."
4. The creator economy
Next, huge IT platforms like Google, Facebook, YouTube, and others competed with traditional mainstream media.
During the 2008 global financial crisis, these mediums surpassed traditional media. People relied on them for information, knowledge, and networking. That was a digital media revolution. The creator economy started there.
The new economic paradigm aimed to engage and convert clients. The creator economy allowed customers to engage, interact, and provide value, unlike the consumer economy. It gave them instruments to promote themselves as "products" and make money.
Writers, singers, painters, and other creators have a great way to reach fans. Instead of appeasing old-fashioned gatekeepers (producers, casting managers, publishers, etc.), they can use the platforms to express their talent and gain admirers. Barriers fell.
It's not only for pros. Everyone with a laptop and internet can now create.
2022 creator economy:
Since there is no academic description for the current creator economy, we can freestyle.
The current (or Web2) creator economy is fueled by interactive digital platforms, marketplaces, and tools that allow users to access, produce, and monetize content.
No entry hurdles or casting in the creative economy. Sign up and follow platforms' rules. Trick: A platform's algorithm aggregates your data and tracks you. This is the payment for participation.
The platforms offer content creation, design, and ad distribution options. This is platforms' main revenue source.
The creator economy opens many avenues for creators to monetize their work. Artists can now earn money through advertising, tipping, brand sponsorship, affiliate links, streaming, and other digital marketing activities.
Even if your content isn't digital, you can utilize platforms to promote it, interact and convert your audience, and more. No limits. However, some of your income always goes to a platform (well, a huge one).
The creator economy aims to empower online entrepreneurship by offering digital marketing tools and reducing impediments.
Barriers remain. They are just different. Next articles will examine these.
Why update the creator economy for Web3?
I could address this question by listing the present creator economy's difficulties that led us to contemplate a Web3 upgrade.
I don't think these difficulties are the main cause. The mentality shift made us see these challenges and understand there was a better reality without them.
Crypto drove this thinking shift. It promoted disintermediation, independence from third-party service providers, 100% data ownership, and self-sovereignty. Crypto has changed the way we view everyday things.
Crypto's disruptive mission has migrated to other economic segments. It's now called Web3. Web3's creator economy is unique.
Here's the essence of the Web3 economy:
Eliminating middlemen between creators and fans.
100% of creators' data, brand, and effort.
Business and money-making transparency.
Authentic originality above ad-driven content.
In the next several articles, I'll explain. We'll also discuss the creator economy and Web3's remedies.
Final thoughts
The creator economy is the organic developmental stage we've reached after all these social and economic transformations.
The Web3 paradigm of the creator economy intends to allow creators to construct their own independent "open economy" and directly monetize it without a third party.
If this approach succeeds, we may enter a new era of wealth creation where producers aren't only the products. New economies will emerge.
This article is a summary. To read the full post, click here.