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. 

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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"Web 3.0" is a trendy buzzword with a vague definition. Everyone agrees it has to do with a blockchain-based internet evolution, but what is it?

Yet, the meaning and prospects for Web3 have become hot topics in crypto communities. Big corporations use the term to gain a foothold in the space while avoiding the negative connotations of “crypto.”

But it can't be evaluated without a definition.

Among those criticizing Web3's vagueness is Cobie:

“Even the crypto community is split on whether Bitcoin is Web3,” he adds.

The phrase was coined by an early crypto thinker, and the community has had years to figure out what it means. Many ideologies and commercial realities have driven reverse engineering.

Web3 is becoming clearer as a concept. It contains ideas. It was probably coined by Ethereum co-founder Gavin Wood in 2014. His definition of Web3 included “trustless transactions” as part of its tech stack. Wood founded the Web3 Foundation and the Polkadot network, a Web3 alternative future.

The 2013 Ethereum white paper had previously allowed devotees to imagine a DAO, for example.

Web3 now has concepts like decentralized autonomous organizations, sovereign digital identity, censorship-free data storage, and data divided by multiple servers. They intertwine discussions about the “Web3” movement and its viability.

These ideas are linked by Cobie's initial Web3 definition. A key component of Web3 should be “ownership of value” for one's own content and data.

Noting that “late-stage capitalism greedcorps that make you buy a fractionalized micropayment NFT on Cardano to operate your electric toothbrush” may build the new web, he notes that “crypto founders are too rich to care anymore.”

Very Important

Many critics of Web3 claim it isn't practical or achievable. Web3 critics like Moxie Marlinspike (creator of sslstrip and Signal/TextSecure) can never see people running their own servers. Early in January, he argued that protocols are more difficult to create than platforms.

While this is true, some projects, like the file storage protocol IPFS, allow users to choose which jurisdictions their data is shared between.

But full decentralization is a difficult problem. Suhaza, replying to Moxie, said:

So, here are the questions: Web3: Is it a go? Is it truly decentralized?

Web3 history is shaped by Web2 failure.

This is the story of how the Internet was turned upside down...

Then came the vision. Everyone can create content for free. Decentralized open-source believers like Tim Berners-Lee popularized it.

Real-world data trade-offs for content creation and pricing.

A giant Wikipedia page married to a giant Craig's List. No ads, no logins, and a private web carve-up. For free usage, you give up your privacy and data to the algorithmic targeted advertising of Web 2.

Our data is centralized and savaged by giant corporations. Data localization rules and geopolitical walls like China's Great Firewall further fragment the internet.

The decentralized Web3 reflects Berners-original Lee's vision: "No permission is required from a central authority to post anything... there is no central controlling node and thus no single point of failure." Now he runs Solid, a Web3 data storage startup.

So Web3 starts with decentralized servers and data privacy.

Web3 begins with decentralized storage.

Data decentralization is a key feature of the Web3 tech stack. Web2 has closed databases. Large corporations like Facebook, Google, and others go to great lengths to collect, control, and monetize data. We want to change it.

Amazon, Google, Microsoft, Alibaba, and Huawei, according to Gartner, currently control 80% of the global cloud infrastructure market. Web3 wants to change that.

Decentralization enlarges power structures by giving participants a stake in the network. Users own data on open encrypted networks in Web3. This area has many projects.

Apps like Filecoin and IPFS have led the way. Data is replicated across multiple nodes in Web3 storage providers like Filecoin.

But the new tech stack and ideology raise many questions.

Giving users control over their data

According to Ryan Kris, COO of Verida, his “Web3 vision” is “empowering people to control their own data.”

Verida targets SDKs that address issues in the Web3 stack: identity, messaging, personal storage, and data interoperability.

A big app suite? “Yes, but it's a frontier technology,” he says. They are currently building a credentialing system for decentralized health in Bermuda.

By empowering individuals, how will Web3 create a fairer internet? Kris, who has worked in telecoms, finance, cyber security, and blockchain consulting for decades, admits it is difficult:

“The viability of Web3 raises some good business questions,” he adds. “How can users regain control over centralized personal data? How are startups motivated to build products and tools that support this transition? How are existing Web2 companies encouraged to pivot to a Web3 business model to compete with market leaders?

Kris adds that new technologies have regulatory and practical issues:

Each project has varying degrees of decentralization. The diehards say DApps that use centralized storage are no longer “Web3” companies. But fully decentralized technology is hard to build.

Web2.5?

Some argue that we're actually building Web2.5 businesses, which are crypto-native but not fully decentralized. This is vital. For example, the NFT may be on a blockchain, but it is linked to centralized data repositories like OpenSea. A server failure could result in data loss.

However, according to Apollo Capital crypto analyst David Angliss, OpenSea is “not exactly community-led”. Also in 2021, much to the chagrin of crypto enthusiasts, OpenSea tried and failed to list on the Nasdaq.

This is where Web2.5 is defined.

“Web3 isn't a crypto segment. “Anything that uses a blockchain for censorship resistance is Web3,” Angliss tells us.

“Web3 gives users control over their data and identity. This is not possible in Web2.”

“Web2 is like feudalism, with walled-off ecosystems ruled by a few. For example, an honest user owned the Instagram account “Meta,” which Facebook rebranded and then had to make up a reason to suspend. Not anymore with Web3. If I buy ‘Ethereum.ens,' Ethereum cannot take it away from me.”

Angliss uses OpenSea as a Web2.5 business example. Too decentralized, i.e. censorship resistant, can be unprofitable for a large company like OpenSea. For example, OpenSea “enables NFT trading”. But it also stopped the sale of stolen Bored Apes.”

Web3 (or Web2.5, depending on the context) has been described as a new way to privatize internet.

“Being in the crypto ecosystem doesn't make it Web3,” Angliss says. The biggest risk is centralized closed ecosystems rather than a growing Web3.

LooksRare and OpenDAO are two community-led platforms that are more decentralized than OpenSea. LooksRare has even been “vampire attacking” OpenSea, indicating a Web3 competitor to the Web2.5 NFT king could find favor.

The addition of a token gives these new NFT platforms more options for building customer loyalty. For example, OpenSea charges a fee that goes nowhere. Stakeholders of LOOKS tokens earn 100% of the trading fees charged by LooksRare on every basic sale.

Maybe Web3's time has come.

So whose data is it?

Continuing criticisms of Web3 platforms' decentralization may indicate we're too early. Users want to own and store their in-game assets and NFTs on decentralized platforms like the Metaverse and play-to-earn games. Start-ups like Arweave, Sia, and Aleph.im  propose an alternative.

To be truly decentralized, Web3 requires new off-chain models that sidestep cloud computing and Web2.5.

“Arweave and Sia emerged as formidable competitors this year,” says the Messari Report. They seek to reduce the risk of an NFT being lost due to a data breach on a centralized server.

Aleph.im, another Web3 cloud competitor, seeks to replace cloud computing with a service network. It is a decentralized computing network that supports multiple blockchains by retrieving and encrypting data.

“The Aleph.im network provides a truly decentralized alternative where it is most needed: storage and computing,” says Johnathan Schemoul, founder of Aleph.im. For reasons of consensus and security, blockchains are not designed for large storage or high-performance computing.

As a result, large data sets are frequently stored off-chain, increasing the risk for centralized databases like OpenSea

Aleph.im enables users to own digital assets using both blockchains and off-chain decentralized cloud technologies.

Aleph.im raised $10 million in mid-January 2022, and Ubisoft uses its network for NFT storage. This is the first time a big-budget gaming studio has given users this much control.

It also suggests Web3 could work as a B2B model, even if consumers aren't concerned about “decentralization.” Starting with gaming is common.

Can Tokenomics help Web3 adoption?

Web3 consumer adoption is another story. The average user may not be interested in all this decentralization talk. Still, how much do people value privacy over convenience? Can tokenomics solve the privacy vs. convenience dilemma?

Holon Global Investments' Jonathan Hooker tells us that human internet behavior will change. “Do you own Bitcoin?” he asks in his Web3 explanation. How does it feel to own and control your own sovereign wealth? Then:

“The business model must find what that person values,” he says. Putting their own health records on centralized systems they don't control?

“How vital are those medical records to that person at a critical time anywhere in the world? Filecoin and IPFS can help.”

Web3 adoption depends on NFT storage competition. A free off-chain storage of NFT metadata and assets was launched by Filecoin in April 2021.

Denationalization and blockchain technology have significant implications for data ownership and compensation for lending, staking, and using data. 

Tokenomics can change human behavior, but many people simply sign into Web2 apps using a Facebook API without hesitation. Our data is already owned by Google, Baidu, Tencent, and Facebook (and its parent company Meta). Is it too late to recover?

Maybe. “Data is like fruit, it starts out fresh but ages,” he says. "Big Tech's data on us will expire."

Web3 founder Kris agrees with Hooker that “value for data is the issue, not privacy.” People accept losing their data privacy, so tokenize it. People readily give up data, so why not pay for it?

"Personalized data offering is valuable in personalization. “I will sell my social media data but not my health data.”

Purists and mass consumer adoption struggle with key management.

Others question data tokenomics' optimism. While acknowledging its potential, Box founder Aaron Levie questioned the viability of Web3 models in a Tweet thread:

“Why? Because data almost always works in an app. A product and APIs that moved quickly to build value and trust over time.”

Levie contends that tokenomics may complicate matters. In addition to community governance and tokenomics, Web3 ideals likely add a new negotiation vector.

“These are hard problems about human coordination, not software or blockchains,”. Using a Facebook API is simple. The business model and user interface are crucial.

For example, the crypto faithful have a common misconception about logging into Web3. It goes like this: Web 1 had usernames and passwords. Web 2 uses Google, Facebook, or Twitter APIs, while Web 3 uses your wallet. Pay with Ethereum on MetaMask, for example.

But Levie is correct. Blockchain key management is stressed in this meme. Even seasoned crypto enthusiasts have heart attacks, let alone newbies.

Web3 requires a better user experience, according to Kris, the company's founder. “How does a user recover keys?”

And at this point, no solution is likely to be completely decentralized. So Web3 key management can be improved. ”The moment someone loses control of their keys, Web3 ceases to exist.”

That leaves a major issue for Web3 purists. Put this one in the too-hard basket.

Is 2022 the Year of Web3?

Web3 must first solve a number of issues before it can be mainstreamed. It must be better and cheaper than Web2.5, or have other significant advantages.

Web3 aims for scalability without sacrificing decentralization protocols. But decentralization is difficult and centralized services are more convenient.

Ethereum co-founder Vitalik Buterin himself stated recently"

This is why (centralized) Binance to Binance transactions trump Ethereum payments in some places because they don't have to be verified 12 times."

“I do think a lot of people care about decentralization, but they're not going to take decentralization if decentralization costs $8 per transaction,” he continued.

“Blockchains need to be affordable for people to use them in mainstream applications... Not for 2014 whales, but for today's users."

For now, scalability, tokenomics, mainstream adoption, and decentralization believers seem to be holding Web3 hostage.

Much like crypto's past.

But stay tuned.

The new Bitcoin Academy will teach Jay-Marcy Z's Houses neighbors "What is Cryptocurrency."
Jay-Z grew up in Brooklyn's Marcy Houses. The rapper and Block CEO Jack Dorsey are giving back to his hometown by creating the Bitcoin Academy.

The Bitcoin Academy will offer online and in-person classes, including "What is Money?" and "What is Blockchain?"
The program will provide participants with a mobile hotspot and a small amount of Bitcoin for hands-on learning.

Students will receive dinner and two evenings of instruction until early September. The Shawn Carter Foundation will help with on-the-ground instruction.

Jay-Z and Dorsey announced the program Thursday morning. It will begin at Marcy Houses but may be expanded.

Crypto Blockchain Plug and Black Bitcoin Billionaire, which has received a grant from Block, will teach the classes.

Jay-Z, Dorsey reunite

Jay-Z and Dorsey have previously worked together to promote a Bitcoin and crypto-based future.

In 2021, Dorsey's Block (then Square) acquired the rapper's streaming music service Tidal, which they propose using for NFT distribution.

Dorsey and Jay-Z launched an endowment in 2021 to fund Bitcoin development in Africa and India.

Dorsey is funding the new Bitcoin Academy out of his own pocket (as is Jay-Z), but he's also pushed crypto-related charitable endeavors at Block, including a $5 million fund backed by corporate Bitcoin interest.

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What is PFOF?

PFOF is a brokerage firm's compensation for directing orders to different parties for trade execution. The brokerage firm receives fractions of a penny per share for directing the order to a market maker.

Each optionable stock could have thousands of contracts, so market makers dominate options trades. Order flow payments average less than $0.50 per option contract.

Order Flow Payments (PFOF) Explained

The proliferation of exchanges and electronic communication networks has complicated equity and options trading (ECNs) Ironically, Bernard Madoff, the Ponzi schemer, pioneered pay-for-order-flow.

In a December 2000 study on PFOF, the SEC said, "Payment for order flow is a method of transferring trading profits from market making to brokers who route customer orders to specialists for execution."

Given the complexity of trading thousands of stocks on multiple exchanges, market making has grown. Market makers are large firms that specialize in a set of stocks and options, maintaining an inventory of shares and contracts for buyers and sellers. Market makers are paid the bid-ask spread. Spreads have narrowed since 2001, when exchanges switched to decimals. A market maker's ability to play both sides of trades is key to profitability.

Benefits, requirements

A broker receives fees from a third party for order flow, sometimes without a client's knowledge. This invites conflicts of interest and criticism. Regulation NMS from 2005 requires brokers to disclose their policies and financial relationships with market makers.

Your broker must tell you if it's paid to send your orders to specific parties. This must be done at account opening and annually. The firm must disclose whether it participates in payment-for-order-flow and, upon request, every paid order. Brokerage clients can request payment data on specific transactions, but the response takes weeks.

Order flow payments save money. Smaller brokerage firms can benefit from routing orders through market makers and getting paid. This allows brokerage firms to send their orders to another firm to be executed with other orders, reducing costs. The market maker or exchange benefits from additional share volume, so it pays brokerage firms to direct traffic.

Retail investors, who lack bargaining power, may benefit from order-filling competition. Arrangements to steer the business in one direction invite wrongdoing, which can erode investor confidence in financial markets and their players.

Pay-for-order-flow criticism

It has always been controversial. Several firms offering zero-commission trades in the late 1990s routed orders to untrustworthy market makers. During the end of fractional pricing, the smallest stock spread was $0.125. Options spreads widened. Traders found that some of their "free" trades cost them a lot because they weren't getting the best price.

The SEC then studied the issue, focusing on options trades, and nearly decided to ban PFOF. The proliferation of options exchanges narrowed spreads because there was more competition for executing orders. Options market makers said their services provided liquidity. In its conclusion, the report said, "While increased multiple-listing produced immediate economic benefits to investors in the form of narrower quotes and effective spreads, these improvements have been muted with the spread of payment for order flow and internalization." 

The SEC allowed payment for order flow to continue to prevent exchanges from gaining monopoly power. What would happen to trades if the practice was outlawed was also unclear. SEC requires brokers to disclose financial arrangements with market makers. Since then, the SEC has watched closely.

2020 Order Flow Payment

Rule 605 and Rule 606 show execution quality and order flow payment statistics on a broker's website. Despite being required by the SEC, these reports can be hard to find. The SEC mandated these reports in 2005, but the format and reporting requirements have changed over the years, most recently in 2018.

Brokers and market makers formed a working group with the Financial Information Forum (FIF) to standardize order execution quality reporting. Only one retail brokerage (Fidelity) and one market maker remain (Two Sigma Securities). FIF notes that the 605/606 reports "do not provide the level of information that allows a retail investor to gauge how well a broker-dealer fills a retail order compared to the NBBO (national best bid or offer’) at the time the order was received by the executing broker-dealer."

In the first quarter of 2020, Rule 606 reporting changed to require brokers to report net payments from market makers for S&P 500 and non-S&P 500 equity trades and options trades. Brokers must disclose payment rates per 100 shares by order type (market orders, marketable limit orders, non-marketable limit orders, and other orders).

Richard Repetto, Managing Director of New York-based Piper Sandler & Co., publishes a report on Rule 606 broker reports. Repetto focused on Charles Schwab, TD Ameritrade, E-TRADE, and Robinhood in Q2 2020. Repetto reported that payment for order flow was higher in the second quarter than the first due to increased trading activity, and that options paid more than equities.

Repetto says PFOF contributions rose overall. Schwab has the lowest options rates, while TD Ameritrade and Robinhood have the highest. Robinhood had the highest equity rating. Repetto assumes Robinhood's ability to charge higher PFOF reflects their order flow profitability and that they receive a fixed rate per spread (vs. a fixed rate per share by the other brokers).

Robinhood's PFOF in equities and options grew the most quarter-over-quarter of the four brokers Piper Sandler analyzed, as did their implied volumes. All four brokers saw higher PFOF rates.

TD Ameritrade took the biggest income hit when cutting trading commissions in fall 2019, and this report shows they're trying to make up the shortfall by routing orders for additional PFOF. Robinhood refuses to disclose trading statistics using the same metrics as the rest of the industry, offering only a vague explanation on their website.

Summary

Payment for order flow has become a major source of revenue as brokers offer no-commission equity (stock and ETF) orders. For retail investors, payment for order flow poses a problem because the brokerage may route orders to a market maker for its own benefit, not the investor's.

Infrequent or small-volume traders may not notice their broker's PFOF practices. Frequent traders and those who trade larger quantities should learn about their broker's order routing system to ensure they're not losing out on price improvement due to a broker prioritizing payment for order flow.

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