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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
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More on Web3 & Crypto
Alex Bentley
3 years ago
Why Bill Gates thinks Bitcoin, crypto, and NFTs are foolish
Microsoft co-founder Bill Gates assesses digital assets while the bull is caged.
Bill Gates is well-respected.
Reasonably. He co-founded and led Microsoft during its 1980s and 1990s revolution.
After leaving Microsoft, Bill Gates pursued other interests. He and his wife founded one of the world's largest philanthropic organizations, Bill & Melinda Gates Foundation. He also supports immunizations, population control, and other global health programs.
When Gates criticized Bitcoin, cryptocurrencies, and NFTs, it made news.
Bill Gates said at the 58th Munich Security Conference...
“You have an asset class that’s 100% based on some sort of greater fool theory that somebody’s going to pay more for it than I do.”
Gates means digital assets. Like many bitcoin critics, he says digital coins and tokens are speculative.
And he's not alone. Financial experts have dubbed Bitcoin and other digital assets a "bubble" for a decade.
Gates also made fun of Bored Ape Yacht Club and NFTs, saying, "Obviously pricey digital photographs of monkeys will help the world."
Why does Bill Gates dislike digital assets?
According to Gates' latest comments, Bitcoin, cryptos, and NFTs aren't good ways to hold value.
Bill Gates is a better investor than Elon Musk.
“I’m used to asset classes, like a farm where they have output, or like a company where they make products,” Gates said.
The Guardian claimed in April 2021 that Bill and Melinda Gates owned the most U.S. farms. Over 242,000 acres of farmland.
The Gates couple has enough farmland to cover Hong Kong.
Bill Gates is a classic investor. He wants companies with an excellent track record, strong fundamentals, and good management. Or tangible assets like land and property.
Gates prefers the "old economy" over the "new economy"
Gates' criticism of Bitcoin and cryptocurrency ventures isn't surprising. These digital assets lack all of Gates's investing criteria.
Volatile digital assets include Bitcoin. Their costs might change dramatically in a day. Volatility scares risk-averse investors like Gates.
Gates has a stake in the old financial system. As Microsoft's co-founder, Gates helped develop a dominant tech company.
Because of his business, he's one of the world's richest men.
Bill Gates is invested in protecting the current paradigm.
He won't invest in anything that could destroy the global economy.
When Gates criticizes Bitcoin, cryptocurrencies, and NFTs, he's suggesting they're a hoax. These soapbox speeches are one way he protects his interests.
Digital assets aren't a bad investment, though. Many think they're the future.
Changpeng Zhao and Brian Armstrong are two digital asset billionaires. Two crypto exchange CEOs. Binance/Coinbase.
Digital asset revolution won't end soon.
If you disagree with Bill Gates and plan to invest in Bitcoin, cryptocurrencies, or NFTs, do your own research and understand the risks.
But don’t take Bill Gates’ word for it.
He’s just an old rich guy with a lot of farmland.
He has a lot to lose if Bitcoin and other digital assets gain global popularity.
This post is a summary. Read the full article here.
rekt
4 years ago
LCX is the latest CEX to have suffered a private key exploit.
The attack began around 10:30 PM +UTC on January 8th.
Peckshield spotted it first, then an official announcement came shortly after.
We’ve said it before; if established companies holding millions of dollars of users’ funds can’t manage their own hot wallet security, what purpose do they serve?
The Unique Selling Proposition (USP) of centralised finance grows smaller by the day.
The official incident report states that 7.94M USD were stolen in total, and that deposits and withdrawals to the platform have been paused.
LCX hot wallet: 0x4631018f63d5e31680fb53c11c9e1b11f1503e6f
Hacker’s wallet: 0x165402279f2c081c54b00f0e08812f3fd4560a05
Stolen funds:
- 162.68 ETH (502,671 USD)
- 3,437,783.23 USDC (3,437,783 USD)
- 761,236.94 EURe (864,840 USD)
- 101,249.71 SAND Token (485,995 USD)
- 1,847.65 LINK (48,557 USD)
- 17,251,192.30 LCX Token (2,466,558 USD)
- 669.00 QNT (115,609 USD)
- 4,819.74 ENJ (10,890 USD)
- 4.76 MKR (9,885 USD)
**~$1M worth of $LCX remains in the address, along with 611k EURe which has been frozen by Monerium.
The rest, a total of 1891 ETH (~$6M) was sent to Tornado Cash.**
Why can’t they keep private keys private?
Is it really that difficult for a traditional corporate structure to maintain good practice?
CeFi hacks leave us with little to say - we can only go on what the team chooses to tell us.
Next time, they can write this article themselves.
See below for a template.
Sam Bourgi
3 years ago
DAOs are legal entities in Marshall Islands.
The Pacific island state recognizes decentralized autonomous organizations.
The Republic of the Marshall Islands has recognized decentralized autonomous organizations (DAOs) as legal entities, giving collectively owned and managed blockchain projects global recognition.
The Marshall Islands' amended the Non-Profit Entities Act 2021 that now recognizes DAOs, which are blockchain-based entities governed by self-organizing communities. Incorporating Admiralty LLC, the island country's first DAO, was made possible thanks to the amendement. MIDAO Directory Services Inc., a domestic organization established to assist DAOs in the Marshall Islands, assisted in the incorporation.
The new law currently allows any DAO to register and operate in the Marshall Islands.
“This is a unique moment to lead,” said Bobby Muller, former Marshall Islands chief secretary and co-founder of MIDAO. He believes DAOs will help create “more efficient and less hierarchical” organizations.
A global hub for DAOs, the Marshall Islands hopes to become a global hub for DAO registration, domicile, use cases, and mass adoption. He added:
"This includes low-cost incorporation, a supportive government with internationally recognized courts, and a technologically open environment."
According to the World Bank, the Marshall Islands is an independent island state in the Pacific Ocean near the Equator. To create a blockchain-based cryptocurrency that would be legal tender alongside the US dollar, the island state has been actively exploring use cases for digital assets since at least 2018.
In February 2018, the Marshall Islands approved the creation of a new cryptocurrency, Sovereign (SOV). As expected, the IMF has criticized the plan, citing concerns that a digital sovereign currency would jeopardize the state's financial stability. They have also criticized El Salvador, the first country to recognize Bitcoin (BTC) as legal tender.
Marshall Islands senator David Paul said the DAO legislation does not pose the same issues as a government-backed cryptocurrency. “A sovereign digital currency is financial and raises concerns about money laundering,” . This is more about giving DAOs legal recognition to make their case to regulators, investors, and consumers.
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Josef Cruz
3 years ago
My friend worked in a startup scam that preys on slothful individuals.
He explained everything.
A drinking buddy confessed. Alexander. He says he works at a startup based on a scam, which appears too clever to be a lie.
Alexander (assuming he developed the story) or the startup's creator must have been a genius.
This is the story of an Internet scam that targets older individuals and generates tens of millions of dollars annually.
The business sells authentic things at 10% of their market value. This firm cannot be lucrative, but the entrepreneur has a plan: monthly subscriptions to a worthless service.
The firm can then charge the customer's credit card to settle the gap. The buyer must subscribe without knowing it. What's their strategy?
How does the con operate?
Imagine a website with a split homepage. On one page, the site offers an attractive goods at a ridiculous price (from 1 euro to 10% of the product's market worth).
Same product, but with a stupid monthly subscription. Business is unsustainable. They buy overpriced products and resell them too cheaply, hoping customers will subscribe to a useless service.
No customer will want this service. So they create another illegal homepage that hides the monthly subscription offer. After an endless scroll, a box says Yes, I want to subscribe to a service that costs x dollars per month.
Unchecking the checkbox bugs. When a customer buys a product on this page, he's enrolled in a monthly subscription. Not everyone should see it because it's illegal. So what does the startup do?
A page that varies based on the sort of website visitor, a possible consumer or someone who might be watching the startup's business
Startup technicians make sure the legal page is displayed when the site is accessed normally. Typing the web address in the browser, using Google, etc. The page crashes when buying a goods, preventing the purchase.
This avoids the startup from selling a product at a loss because the buyer won't subscribe to the worthless service and charge their credit card each month.
The illegal page only appears if a customer clicks on a Google ad, indicating interest in the offer.
Alexander says that a banker, police officer, or anyone else who visits the site (maybe for control) will only see a valid and buggy site as purchases won't be possible.
The latter will go to the site in the regular method (by typing the address in the browser, using Google, etc.) and not via an online ad.
Those who visit from ads are likely already lured by the site's price. They'll be sent to an illegal page that requires a subscription.
Laziness is humanity's secret weapon. The ordinary person ignores tiny monthly credit card charges. The subscription lasts around a year before the customer sees an unexpected deduction.
After-sales service (ASS) is useful in this situation.
After-sales assistance begins when a customer notices slight changes on his credit card, usually a year later.
The customer will search Google for the direct debit reference. How he'll complain to after-sales service.
It's crucial that ASS appears in the top 4/5 Google search results. This site must be clear, and offer chat, phone, etc., he argues.
The pigeon must be comforted after waking up. The customer learns via after-sales service that he subscribed to a service while buying the product, which justifies the debits on his card.
The customer will then clarify that he didn't intend to make the direct debits. The after-sales care professional will pretend to listen to the customer's arguments and complaints, then offer to unsubscribe him for free because his predicament has affected him.
In 99% of cases, the consumer is satisfied since the after-sales support unsubscribed him for free, and he forgets the debited amounts.
The remaining 1% is split between 0.99% who are delighted to be reimbursed and 0.01%. We'll pay until they're done. The customer should be delighted, not object or complain, and keep us beneath the radar (their situation is resolved, the rest, they don’t care).
It works, so we expand our thinking.
Startup has considered industrialization. Since this fraud is working, try another. Automate! So they used a site generator (only for product modifications), underpaid phone operators for after-sales service, and interns for fresh product ideas.
The company employed a data scientist. This has allowed the startup to recognize that specific customer profiles can be re-registered in the database and that it will take X months before they realize they're subscribing to a worthless service. Customers are re-subscribed to another service, then unsubscribed before realizing it.
Alexander took months to realize the deception and leave. Lawyers and others apparently threatened him and former colleagues who tried to talk about it.
The startup would have earned prizes and competed in contests. He adds they can provide evidence to any consumer group, media, police/gendarmerie, or relevant body. When I submitted my information to the FBI, I was told, "We know, we can't do much.", he says.
1eth1da
3 years ago
6 Rules to build a successful NFT Community in 2022
Too much NFT, Discord, and shitposting.
How do you choose?
How do you recruit more members to join your NFT project?
In 2021, a successful NFT project required:
Monkey/ape artwork
Twitter and Discord bot-filled
Roadmap overpromise
Goal was quick cash.
2022 and the years after will change that.
These are 6 Rules for a Strong NFT Community in 2022:
THINK LONG TERM
This relates to roadmap planning. Hype and dumb luck may drive NFT projects (ahem, goblins) but rarely will your project soar.
Instead, consider sustainability.
Plan your roadmap based on your team's abilities.
Do what you're already doing, but with NFTs, make it bigger and better.
You shouldn't copy a project's roadmap just because it was profitable.
This will lead to over-promising, team burnout, and an RUG NFT project.
OFFER VALUE
Building a great community starts with giving.
Why are musicians popular?
Because they offer entertainment for everyone, a random person becomes a fan, and more fans become a cult.
That's how you should approach your community.
TEAM UP
A great team helps.
An NFT project could have 3 or 2 people.
Credibility trumps team size.
Make sure your team can answer community questions, resolve issues, and constantly attend to them.
Don't overwork and burn out.
Your community will be able to recognize that you are trying too hard and give up on the project.
BUILD A GREAT PRODUCT
Bored Ape Yacht Club altered the NFT space.
Cryptopunks transformed NFTs.
Many others did, including Okay Bears.
What made them that way?
Because they answered a key question.
What is my NFT supposed to be?
Before planning art, this question must be answered.
NFTs can't be just jpegs.
What does it represent?
Is it a Metaverse-ready project?
What blockchain are you going to be using and why?
Set some ground rules for yourself. This helps your project's direction.
These questions will help you and your team set a direction for blockchain, NFT, and Web3 technology.
EDUCATE ON WEB3
The more the team learns about Web3 technology, the more they can offer their community.
Think tokens, metaverse, cross-chain interoperability and more.
BUILD A GREAT COMMUNITY
Several projects mistreat their communities.
They treat their community like "customers" and try to sell them NFT.
Providing Whitelists and giveaways aren't your only community-building options.
Think bigger.
Consider them family and friends, not wallets.
Consider them fans.
These are some tips to start your NFT project.
Erik Engheim
3 years ago
You Misunderstand the Russian Nuclear Threat
Many believe Putin is simply sabre rattling and intimidating us. They see no threat of nuclear war. We can send NATO troops into Ukraine without risking a nuclear war.
I keep reading that Putin is just using nuclear blackmail and that a strong leader will call the bluff. That, in my opinion, misunderstands the danger of sending NATO into Ukraine.
It assumes that once NATO moves in, Putin can either push the red nuclear button or not.
Sure, Putin won't go nuclear if NATO invades Ukraine. So we're safe? Can't we just move NATO?
No, because history has taught us that wars often escalate far beyond our initial expectations. One domino falls, knocking down another. That's why having clear boundaries is vital. Crossing a seemingly harmless line can set off a chain of events that are unstoppable once started.
One example is WWI. The assassin of Archduke Franz Ferdinand could not have known that his actions would kill millions. They couldn't have known that invading Serbia to punish them for not handing over the accomplices would start a world war. Every action triggered a counter-action, plunging Europe into a brutal and bloody war. Each leader saw their actions as limited, not realizing how they kept the dominos falling.
Nobody can predict the future, but it's easy to imagine how NATO intervention could trigger a chain of events leading to a total war. Let me suggest some outcomes.
NATO creates a no-fly-zone. In retaliation, Russia bombs NATO airfields. Russia may see this as a limited counter-move that shouldn't cause further NATO escalation. They think it's a reasonable response to force NATO out of Ukraine. Nobody has yet thought to use the nuke.
Will NATO act? Polish airfields bombed, will they be stuck? Is this an article 5 event? If so, what should be done?
It could happen. Maybe NATO sends troops into Ukraine to punish Russia. Maybe NATO will bomb Russian airfields.
Putin's response Is bombing Russian airfields an invasion or an attack? Remember that Russia has always used nuclear weapons for defense, not offense. But let's not panic, let's assume Russia doesn't go nuclear.
Maybe Russia retaliates by attacking NATO military bases with planes. Maybe they use ships to attack military targets. How does NATO respond? Will they fight Russia in Ukraine or escalate? Will they invade Russia or attack more military installations there?
Seen the pattern? As each nation responds, smaller limited military operations can grow in scope.
So far, the Russian military has shown that they begin with less brutal methods. As losses and failures increase, brutal means are used. Syria had the same. Assad used chemical weapons and attacked hospitals, schools, residential areas, etc.
A NATO invasion of Ukraine would cost Russia dearly. “Oh, this isn't looking so good, better pull out and finish this war,” do you think? No way. Desperate, they will resort to more brutal tactics. If desperate, Russia has a huge arsenal of ugly weapons. They have nerve agents, chemical weapons, and other nasty stuff.
What happens if Russia uses chemical weapons? What if Russian nerve agents kill NATO soldiers horribly? West calls for retaliation will grow. Will we invade Russia? Will we bomb them?
We are angry and determined to punish war criminal Putin, so NATO tanks may be heading to Moscow. We want vengeance for his chemical attacks and bombing of our cities.
Do you think the distance between that red nuclear button and Putin's finger will be that far once NATO tanks are on their way to Moscow?
We might avoid a nuclear apocalypse. A NATO invasion force or even Western cities may be used by Putin. Not as destructive as ICBMs. Putin may think we won't respond to tactical nukes with a full nuclear counterattack. Why would we risk a nuclear Holocaust by launching ICBMs on Russia?
Maybe. My point is that at every stage of the escalation, one party may underestimate the other's response. This war is spiraling out of control and the chances of a nuclear exchange are increasing. Nobody really wants it.
Fear, anger, and resentment cause it. If Putin and his inner circle decide their time is up, they may no longer care about the rest of the world. We saw it with Hitler. Hitler, seeing the end of his empire, ordered the destruction of Germany. Nobody should win if he couldn't. He wanted to destroy everything, including Paris.
In other words, the danger isn't what happens after NATO intervenes The danger is the potential chain reaction. Gambling has a psychological equivalent. It's best to exit when you've lost less. We humans are willing to take small risks for big rewards. To avoid losses, we are willing to take high risks. Daniel Kahneman describes this behavior in his book Thinking, Fast and Slow.
And so bettors who have lost a lot begin taking bigger risks to make up for it. We get a snowball effect. NATO involvement in the Ukraine conflict is akin to entering a casino and placing a bet. We'll start taking bigger risks as we start losing to Russian retaliation. That's the game's psychology.
It's impossible to stop. So will politicians and citizens from both Russia and the West, until we risk the end of human civilization.
You can avoid spiraling into ever larger bets in the Casino by drawing a hard line and declaring “I will not enter that Casino.” We're doing it now. We supply Ukraine. We send money and intelligence but don't cross that crucial line.
It's difficult to watch what happened in Bucha without demanding NATO involvement. What should we do? Of course, I'm not in charge. I'm a writer. My hope is that people will think about the consequences of the actions we demand. My hope is that you think ahead not just one step but multiple dominos.
More and more, we are driven by our emotions. We cannot act solely on emotion in matters of life and death. If we make the wrong choice, more people will die.
Read the original post here.