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Nathan Reiff

Nathan Reiff

3 years ago

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:

  1. An investment of money
  2. n a common enterprise
  3. With the expectation of profit
  4. 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

forkast

forkast

3 years ago

Three Arrows Capital collapse sends crypto tremors

Three Arrows Capital's Google search volume rose over 5,000%.

Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, filed for Chapter 15 bankruptcy last Friday to protect its U.S. assets from creditors.

  • Three Arrows filed for bankruptcy on July 1 in New York.

  • Three Arrows was ordered liquidated by a British Virgin Islands court last week after defaulting on a $670 million loan from Voyager Digital. Three days later, the Singaporean government reprimanded Three Arrows for spreading misleading information and exceeding asset limits.

  • Three Arrows' troubles began with Terra's collapse in May, after it bought US$200 million worth of Terra's LUNA tokens in February, co-founder Kyle Davies told the Wall Street Journal. Three Arrows has failed to meet multiple margin calls since then, including from BlockFi and Genesis.

  • Three Arrows Capital, founded by Kyle Davies and Su Zhu in 2012, manages $10 billion in crypto assets.

  • Bitcoin's price fell from US$20,600 to below US$19,200 after Three Arrows' bankruptcy petition. According to CoinMarketCap, BTC is now above US$20,000.

What does it mean?

Every action causes an equal and opposite reaction, per Newton's third law. Newtonian physics won't comfort Three Arrows investors, but future investors will thank them for their overconfidence.

Regulators are taking notice of crypto's meteoric rise and subsequent fall. Historically, authorities labeled the industry "high risk" to warn traditional investors against entering it. That attitude is changing. Regulators are moving quickly to regulate crypto to protect investors and prevent broader asset market busts.

The EU has reached a landmark deal that will regulate crypto asset sales and crypto markets across the 27-member bloc. The U.S. is close behind with a similar ruling, and smaller markets are also looking to improve safeguards.

For many, regulation is the only way to ensure the crypto industry survives the current winter.

Tim Denning

Tim Denning

3 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!

CyberPunkMetalHead

CyberPunkMetalHead

3 years ago

Developed an automated cryptocurrency trading tool for nearly a year before unveiling it this month.

Overview

I'm happy to provide this important update. We've worked on this for a year and a half, so I'm glad to finally write it. We named the application AESIR because we’ve love Norse Mythology. AESIR automates and runs trading strategies.

  • Volatility, technical analysis, oscillators, and other signals are currently supported by AESIR.

  • Additionally, we enhanced AESIR's ability to create distinctive bespoke signals by allowing it to analyze many indicators and produce a single signal.

  • AESIR has a significant social component that allows you to copy the best-performing public setups and use them right away.

Enter your email here to be notified when AEISR launches.

Views on algorithmic trading

First, let me clarify. Anyone who claims algorithmic trading platforms are money-printing plug-and-play devices is a liar. Algorithmic trading platforms are a collection of tools.

A trading algorithm won't make you a competent trader if you lack a trading strategy and yolo your funds without testing. It may hurt your trade. Test and alter your plans to account for market swings, but comprehend market signals and trends.

Status Report

Throughout closed beta testing, we've communicated closely with users to design a platform they want to use.

To celebrate, we're giving you free Aesir Viking NFTs and we cover gas fees.

Why use a trading Algorithm?

  • Automating a successful manual approach

  • experimenting with and developing solutions that are impossible to execute manually

One AESIR strategy lets you buy any cryptocurrency that rose by more than x% in y seconds.

AESIR can scan an exchange for coins that have gained more than 3% in 5 minutes. It's impossible to manually analyze over 1000 trading pairings every 5 minutes. Auto buy dips or DCA around a Dip

Sneak Preview

Here's the Leaderboard, where you can clone the best public settings.

As a tiny, self-funded team, we're excited to unveil our product. It's a beta release, so there's still more to accomplish, but we know where we stand.

If this sounds like a project that you might want to learn more about, you can sign up to our newsletter and be notified when AESIR launches.

Useful Links:

Join the Discord | Join our subreddit | Newsletter | Mint Free NFT

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Saskia Ketz

Saskia Ketz

2 years ago

I hate marketing for my business, but here's how I push myself to keep going

Start now.

Photo by Tim Douglas

When it comes to building my business, I’m passionate about a lot of things. I love creating user experiences that simplify branding essentials. I love creating new typefaces and color combinations to inspire logo designers. I love fixing problems to improve my product.

Business marketing isn't my thing.

This is shared by many. Many solopreneurs, like me, struggle to advertise their business and drive themselves to work on it.

Without a lot of promotion, no company will succeed. Marketing is 80% of developing a firm, and when you're starting out, it's even more. Some believe that you shouldn't build anything until you've begun marketing your idea and found enough buyers.

Marketing your business without marketing experience is difficult. There are various outlets and techniques to learn. Instead of figuring out where to start, it's easier to return to your area of expertise, whether that's writing, designing product features, or improving your site's back end. Right?

First, realize that your role as a founder is to market your firm. Being a founder focused on product, I rarely work on it.

Secondly, use these basic methods that have helped me dedicate adequate time and focus to marketing. They're all simple to apply, and they've increased my business's visibility and success.

1. Establish buckets for every task.

You've probably heard to schedule tasks you don't like. As simple as it sounds, blocking a substantial piece of my workday for marketing duties like LinkedIn or Twitter outreach, AppSumo customer support, or SEO has forced me to spend time on them.

Giving me lots of room to focus on product development has helped even more. Sure, this means scheduling time to work on product enhancements after my four-hour marketing sprint.

Screenshot of my calendar.

It also involves making space to store product inspiration and ideas throughout the day so I don't get distracted. This is like the advice to keep a notebook beside your bed to write down your insomniac ideas. I keep fonts, color palettes, and product ideas in folders on my desktop. Knowing these concepts won't be lost lets me focus on marketing in the moment. When I have limited time to work on something, I don't have to conduct the research I've been collecting, so I can get more done faster.

Screenshot of my folder for ”inspiration.”

2. Look for various accountability systems

Accountability is essential for self-discipline. To keep focused on my marketing tasks, I've needed various streams of accountability, big and little.

Accountability groups are great for bigger things. SaaS Camp, a sales outreach coaching program, is mine. We discuss marketing duties and results every week. This motivates me to do enough each week to be proud of my accomplishments. Yet hearing what works (or doesn't) for others gives me benchmarks for my own marketing outcomes and plenty of fresh techniques to attempt.

… say, I want to DM 50 people on Twitter about my product — I get that many Q-tips and place them in one pen holder on my desk.

The best accountability group can't watch you 24/7. I use a friend's simple method that shouldn't work (but it does). When I have a lot of marketing chores, like DMing 50 Twitter users about my product, That many Q-tips go in my desk pen holder. After each task, I relocate one Q-tip to an empty pen holder. When you have a lot of minor jobs to perform, it helps to see your progress. You might use toothpicks, M&Ms, or anything else you have a lot of.

Photo of my Q-tip system.

3. Continue to monitor your feedback loops

Knowing which marketing methods work best requires monitoring results. As an entrepreneur with little go-to-market expertise, every tactic I pursue is an experiment. I need to know how each trial is doing to maximize my time.

I placed Google and Facebook advertisements on hold since they took too much time and money to obtain Return. LinkedIn outreach has been invaluable to me. I feel that talking to potential consumers one-on-one is the fastest method to grasp their problem areas, figure out my messaging, and find product market fit.

Data proximity offers another benefit. Seeing positive results makes it simpler to maintain doing a work you don't like. Why every fitness program tracks progress.

Marketing's goal is to increase customers and revenues, therefore I've found it helpful to track those metrics and celebrate monthly advances. I provide these updates for extra accountability.

Finding faster feedback loops is also motivating. Marketing brings more clients and feedback, in my opinion. Product-focused founders love that feedback. Positive reviews make me proud that my product is benefitting others, while negative ones provide me with suggestions for product changes that can improve my business.

The best advice I can give a lone creator who's afraid of marketing is to just start. Start early to learn by doing and reduce marketing stress. Start early to develop habits and successes that will keep you going. The sooner you start, the sooner you'll have enough consumers to return to your favorite work.

Colin Faife

3 years ago

The brand-new USB Rubber Ducky is much riskier than before.

The brand-new USB Rubber Ducky is much riskier than before.

Corin Faife and Alex Castro

With its own programming language, the well-liked hacking tool may now pwn you.

With a vengeance, the USB Rubber Ducky is back.

This year's Def Con hacking conference saw the release of a new version of the well-liked hacking tool, and its author, Darren Kitchen, was on hand to explain it. We put a few of the new features to the test and discovered that the most recent version is riskier than ever.

WHAT IS IT?

The USB Rubber Ducky seems to the untrained eye to be an ordinary USB flash drive. However, when you connect it to a computer, the computer recognizes it as a USB keyboard and will accept keystroke commands from the device exactly like a person would type them in.

Kitchen explained to me, "It takes use of the trust model built in, where computers have been taught to trust a human, in that anything it types is trusted to the same degree as the user is trusted. And a computer is aware that clicks and keystrokes are how people generally connect with it.

The USB Rubber Ducky, a brainchild of Darren Kitchen Corin

Over ten years ago, the first Rubber Ducky was published, quickly becoming a hacker favorite (it was even featured in a Mr. Robot scene). Since then, there have been a number of small upgrades, but the most recent Rubber Ducky takes a giant step ahead with a number of new features that significantly increase its flexibility and capability.

WHERE IS ITS USE?

The options are nearly unlimited with the proper strategy.

The Rubber Ducky has already been used to launch attacks including making a phony Windows pop-up window to collect a user's login information or tricking Chrome into sending all saved passwords to an attacker's web server. However, these attacks lacked the adaptability to operate across platforms and had to be specifically designed for particular operating systems and software versions.

The nuances of DuckyScript 3.0 are described in a new manual. 

The most recent Rubber Ducky seeks to get around these restrictions. The DuckyScript programming language, which is used to construct the commands that the Rubber Ducky will enter into a target machine, receives a significant improvement with it. DuckyScript 3.0 is a feature-rich language that allows users to write functions, store variables, and apply logic flow controls, in contrast to earlier versions that were primarily limited to scripting keystroke sequences (i.e., if this... then that).

This implies that, for instance, the new Ducky can check to see if it is hooked into a Windows or Mac computer and then conditionally run code specific to each one, or it can disable itself if it has been attached to the incorrect target. In order to provide a more human effect, it can also generate pseudorandom numbers and utilize them to add a configurable delay between keystrokes.

The ability to steal data from a target computer by encoding it in binary code and transferring it through the signals intended to instruct a keyboard when the CapsLock or NumLock LEDs should light up is perhaps its most astounding feature. By using this technique, a hacker may plug it in for a brief period of time, excuse themselves by saying, "Sorry, I think that USB drive is faulty," and then take it away with all the credentials stored on it.

HOW SERIOUS IS THE RISK?

In other words, it may be a significant one, but because physical device access is required, the majority of people aren't at risk of being a target.

The 500 or so new Rubber Duckies that Hak5 brought to Def Con, according to Kitchen, were his company's most popular item at the convention, and they were all gone on the first day. It's safe to suppose that hundreds of hackers already possess one, and demand is likely to persist for some time.

Additionally, it has an online development toolkit that can be used to create attack payloads, compile them, and then load them onto the target device. A "payload hub" part of the website makes it simple for hackers to share what they've generated, and the Hak5 Discord is also busy with conversation and helpful advice. This makes it simple for users of the product to connect with a larger community.

It's too expensive for most individuals to distribute in volume, so unless your favorite cafe is renowned for being a hangout among vulnerable targets, it's doubtful that someone will leave a few of them there. To that end, if you intend to plug in a USB device that you discovered outside in a public area, pause to consider your decision.

WOULD IT WORK FOR ME?

Although the device is quite straightforward to use, there are a few things that could cause you trouble if you have no prior expertise writing or debugging code. For a while, during testing on a Mac, I was unable to get the Ducky to press the F4 key to activate the launchpad, but after forcing it to identify itself using an alternative Apple keyboard device ID, the problem was resolved.

From there, I was able to create a script that, when the Ducky was plugged in, would instantly run Chrome, open a new browser tab, and then immediately close it once more without requiring any action from the laptop user. Not bad for only a few hours of testing, and something that could be readily changed to perform duties other than reading technology news.

Nir Zicherman

Nir Zicherman

3 years ago

The Great Organizational Conundrum

Only two of the following three options can be achieved: consistency, availability, and partition tolerance

A DALL-E 2 generated “photograph of a teddy bear who is frustrated because it can’t finish a jigsaw puzzle”

Someone told me that growing from 30 to 60 is the biggest adjustment for a team or business.

I remember thinking, That's random. Each company is unique. I've seen teams of all types confront the same issues during development periods. With new enterprises starting every year, we should be better at navigating growing difficulties.

As a team grows, its processes and systems break down, requiring reorganization or declining results. Why always? Why isn't there a perfect scaling model? Why hasn't that been found?

The Three Things Productive Organizations Must Have

Any company should be efficient and productive. Three items are needed:

First, it must verify that no two team members have conflicting information about the roadmap, strategy, or any input that could affect execution. Teamwork is required.

Second, it must ensure that everyone can receive the information they need from everyone else quickly, especially as teams become more specialized (an inevitability in a developing organization). It requires everyone's accessibility.

Third, it must ensure that the organization can operate efficiently even if a piece is unavailable. It's partition-tolerant.

From my experience with the many teams I've been on, invested in, or advised, achieving all three is nearly impossible. Why a perfect organization model cannot exist is clear after analysis.

The CAP Theorem: What is it?

Eric Brewer of Berkeley discovered the CAP Theorem, which argues that a distributed data storage should have three benefits. One can only have two at once.

The three benefits are consistency, availability, and partition tolerance, which implies that even if part of the system is offline, the remainder continues to work.

This notion is usually applied to computer science, but I've realized it's also true for human organizations. In a post-COVID world, many organizations are hiring non-co-located staff as they grow. CAP Theorem is more important than ever. Growing teams sometimes think they can develop ways to bypass this law, dooming themselves to a less-than-optimal team dynamic. They should adopt CAP to maximize productivity.

Path 1: Consistency and availability equal no tolerance for partitions

Let's imagine you want your team to always be in sync (i.e., for someone to be the source of truth for the latest information) and to be able to share information with each other. Only division into domains will do.

Numerous developing organizations do this, especially after the early stage (say, 30 people) when everyone may wear many hats and be aware of all the moving elements. After a certain point, it's tougher to keep generalists aligned than to divide them into specialized tasks.

In a specialized, segmented team, leaders optimize consistency and availability (i.e. every function is up-to-speed on the latest strategy, no one is out of sync, and everyone is able to unblock and inform everyone else).

Partition tolerance suffers. If any component of the organization breaks down (someone goes on vacation, quits, underperforms, or Gmail or Slack goes down), productivity stops. There's no way to give the team stability, availability, and smooth operation during a hiccup.

Path 2: Partition Tolerance and Availability = No Consistency

Some businesses avoid relying too heavily on any one person or sub-team by maximizing availability and partition tolerance (the organization continues to function as a whole even if particular components fail). Only redundancy can do that. Instead of specializing each member, the team spreads expertise so people can work in parallel. I switched from Path 1 to Path 2 because I realized too much reliance on one person is risky.

What happens after redundancy? Unreliable. The more people may run independently and in parallel, the less anyone can be the truth. Lack of alignment or updated information can lead to people executing slightly different strategies. So, resources are squandered on the wrong work.

Path 3: Partition and Consistency "Tolerance" equates to "absence"

The third, least-used path stresses partition tolerance and consistency (meaning answers are always correct and up-to-date). In this organizational style, it's most critical to maintain the system operating and keep everyone aligned. No one is allowed to read anything without an assurance that it's up-to-date (i.e. there’s no availability).

Always short-lived. In my experience, a business that prioritizes quality and scalability over speedy information transmission can get bogged down in heavy processes that hinder production. Large-scale, this is unsustainable.

Accepting CAP

When two puzzle pieces fit, the third won't. I've watched developing teams try to tackle these difficulties, only to find, as their ancestors did, that they can never be entirely solved. Idealized solutions fail in reality, causing lost effort, confusion, and lower production.

As teams develop and change, they should embrace CAP, acknowledge there is a limit to productivity in a scaling business, and choose the best two-out-of-three path.