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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
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.
Stephen Moore
3 years ago
Web 2 + Web 3 = Web 5.
Monkey jpegs and shitcoins have tarnished Web3's reputation. Let’s move on.
Web3 was called "the internet's future."
Well, 'crypto bros' shouted about it loudly.
As quickly as it arrived to be the next internet, it appears to be dead. It's had scandals, turbulence, and crashes galore:
Web 3.0's cryptocurrencies have crashed. Bitcoin's all-time high was $66,935. This month, Ethereum fell from $2130 to $1117. Six months ago, the cryptocurrency market peaked at $3 trillion. Worst is likely ahead.
Gas fees make even the simplest Web3 blockchain transactions unsustainable.
Terra, Luna, and other dollar pegs collapsed, hurting crypto markets. Celsius, a crypto lender backed by VCs and Canada's second-largest pension fund, and Binance, a crypto marketplace, have withheld money and coins. They're near collapse.
NFT sales are falling rapidly and losing public interest.
Web3 has few real-world uses, like most crypto/blockchain technologies. Web3's image has been tarnished by monkey profile pictures and shitcoins while failing to become decentralized (the whole concept is controlled by VCs).
The damage seems irreparable, leaving Web3 in the gutter.
Step forward our new saviour — Web5
Fear not though, as hero awaits to drag us out of the Web3 hellscape. Jack Dorsey revealed his plan to save the internet quickly.
Dorsey has long criticized Web3, believing that VC capital and silicon valley insiders have created a centralized platform. In a tweet that upset believers and VCs (he was promptly blocked by Marc Andreessen), Dorsey argued, "You don't own "Web3." VCs and LPs do. Their incentives prevent it. It's a centralized organization with a new name.
Dorsey announced Web5 on June 10 in a very Elon-like manner. Block's TBD unit will work on the project (formerly Square).
Web5's pitch is that users will control their own data and identity. Bitcoin-based. Sound familiar? The presentation pack's official definition emphasizes decentralization. Web5 is a decentralized web platform that enables developers to write decentralized web apps using decentralized identifiers, verifiable credentials, and decentralized web nodes, returning ownership and control over identity and data to individuals.
Web5 would be permission-less, open, and token-less. What that means for Earth is anyone's guess. Identity. Ownership. Blockchains. Bitcoin. Different.
Web4 appears to have been skipped, forever destined to wish it could have shown the world what it could have been. (It was probably crap.) As this iteration combines Web2 and Web3, simple math and common sense add up to 5. Or something.
Dorsey and his team have had this idea simmering for a while. Daniel Buchner, a member of Block's Decentralized Identity team, said, "We're finishing up Web5's technical components."
Web5 could be the project that decentralizes the internet. It must be useful to users and convince everyone to drop the countless Web3 projects, products, services, coins, blockchains, and websites being developed as I write this.
Web5 may be too late for Dorsey and the incoming flood of creators.
Web6 is planned!
The next months and years will be hectic and less stable than the transition from Web 1.0 to Web 2.0.
Web1 was around 1991-2004.
Web2 ran from 2004 to 2021. (though the Web3 term was first used in 2014, it only really gained traction years later.)
Web3 lasted a year.
Web4 is dead.
Silicon Valley billionaires are turning it into a startup-style race, each disrupting the next iteration until they crack it. Or destroy it completely.
Web5 won't last either.
Vivek Singh
3 years ago
A Warm Welcome to Web3 and the Future of the Internet
Let's take a look back at the internet's history and see where we're going — and why.
Tim Berners Lee had a problem. He was at CERN, the world's largest particle physics factory, at the time. The institute's stated goal was to study the simplest particles with the most sophisticated scientific instruments. The institute completed the LEP Tunnel in 1988, a 27 kilometer ring. This was Europe's largest civil engineering project (to study smaller particles — electrons).
The problem Tim Berners Lee found was information loss, not particle physics. CERN employed a thousand people in 1989. Due to team size and complexity, people often struggled to recall past project information. While these obstacles could be overcome, high turnover was nearly impossible. Berners Lee addressed the issue in a proposal titled ‘Information Management'.
When a typical stay is two years, data is constantly lost. The introduction of new people takes a lot of time from them and others before they understand what is going on. An emergency situation may require a detective investigation to recover technical details of past projects. Often, the data is recorded but cannot be found. — Information Management: A Proposal
He had an idea. Create an information management system that allowed users to access data in a decentralized manner using a new technology called ‘hypertext'.
To quote Berners Lee, his proposal was “vague but exciting...”. The paper eventually evolved into the internet we know today. Here are three popular W3C standards used by billions of people today:
(credit: CERN)
HTML (Hypertext Markup)
A web formatting language.
URI (Unique Resource Identifier)
Each web resource has its own “address”. Known as ‘a URL'.
HTTP (Hypertext Transfer Protocol)
Retrieves linked resources from across the web.
These technologies underpin all computer work. They were the seeds of our quest to reorganize information, a task as fruitful as particle physics.
Tim Berners-Lee would probably think the three decades from 1989 to 2018 were eventful. He'd be amazed by the billions, the inspiring, the novel. Unlocking innovation at CERN through ‘Information Management'.
The fictional character would probably need a drink, walk, and a few deep breaths to fully grasp the internet's impact. He'd be surprised to see a few big names in the mix.
Then he'd say, "Something's wrong here."
We should review the web's history before going there. Was it a success after Berners Lee made it public? Web1 and Web2: What is it about what we are doing now that so many believe we need a new one, web3?
Per Outlier Ventures' Jamie Burke:
Web 1.0 was read-only.
Web 2.0 was the writable
Web 3.0 is a direct-write web.
Let's explore.
Web1: The Read-Only Web
Web1 was the digital age. We put our books, research, and lives ‘online'. The web made information retrieval easier than any filing cabinet ever. Massive amounts of data were stored online. Encyclopedias, medical records, and entire libraries were put away into floppy disks and hard drives.
In 2015, the web had around 305,500,000,000 pages of content (280 million copies of Atlas Shrugged).
Initially, one didn't expect to contribute much to this database. Web1 was an online version of the real world, but not yet a new way of using the invention.
One gets the impression that the web has been underutilized by historians if all we can say about it is that it has become a giant global fax machine. — Daniel Cohen, The Web's Second Decade (2004)
That doesn't mean developers weren't building. The web was being advanced by great minds. Web2 was born as technology advanced.
Web2: Read-Write Web
Remember when you clicked something on a website and the whole page refreshed? Is it too early to call the mid-2000s ‘the good old days'?
Browsers improved gradually, then suddenly. AJAX calls augmented CGI scripts, and applications began sending data back and forth without disrupting the entire web page. One button to ‘digg' a post (see below). Web experiences blossomed.
In 2006, Digg was the most active ‘Web 2.0' site. (Photo: Ethereum Foundation Taylor Gerring)
Interaction was the focus of new applications. Posting, upvoting, hearting, pinning, tweeting, liking, commenting, and clapping became a lexicon of their own. It exploded in 2004. Easy ways to ‘write' on the internet grew, and continue to grow.
Facebook became a Web2 icon, where users created trillions of rows of data. Google and Amazon moved from Web1 to Web2 by better understanding users and building products and services that met their needs.
Business models based on Software-as-a-Service and then managing consumer data within them for a fee have exploded.
Web2 Emerging Issues
Unbelievably, an intriguing dilemma arose. When creating this read-write web, a non-trivial question skirted underneath the covers. Who owns it all?
You have no control over [Web 2] online SaaS. People didn't realize this because SaaS was so new. People have realized this is the real issue in recent years.
Even if these organizations have good intentions, their incentive is not on the users' side.
“You are not their customer, therefore you are their product,” they say. With Laura Shin, Vitalik Buterin, Unchained
A good plot line emerges. Many amazing, world-changing software products quietly lost users' data control.
For example: Facebook owns much of your social graph data. Even if you hate Facebook, you can't leave without giving up that data. There is no ‘export' or ‘exit'. The platform owns ownership.
While many companies can pull data on you, you cannot do so.
On the surface, this isn't an issue. These companies use my data better than I do! A complex group of stakeholders, each with their own goals. One is maximizing shareholder value for public companies. Tim Berners-Lee (and others) dislike the incentives created.
“Show me the incentive and I will show you the outcome.” — Berkshire Hathaway's CEO
It's easy to see what the read-write web has allowed in retrospect. We've been given the keys to create content instead of just consume it. On Facebook and Twitter, anyone with a laptop and internet can participate. But the engagement isn't ours. Platforms own themselves.
Web3: The ‘Unmediated’ Read-Write Web
Tim Berners Lee proposed a decade ago that ‘linked data' could solve the internet's data problem.
However, until recently, the same principles that allowed the Web of documents to thrive were not applied to data...
The Web of Data also allows for new domain-specific applications. Unlike Web 2.0 mashups, Linked Data applications work with an unbound global data space. As new data sources appear on the Web, they can provide more complete answers.
At around the same time as linked data research began, Satoshi Nakamoto created Bitcoin. After ten years, it appears that Berners Lee's ideas ‘link' spiritually with cryptocurrencies.
What should Web 3 do?
Here are some quick predictions for the web's future.
Users' data:
Users own information and provide it to corporations, businesses, or services that will benefit them.
Defying censorship:
No government, company, or institution should control your access to information (1, 2, 3)
Connect users and platforms:
Create symbiotic rather than competitive relationships between users and platform creators.
Open networks:
“First, the cryptonetwork-participant contract is enforced in open source code. Their voices and exits are used to keep them in check.” Dixon, Chris (4)
Global interactivity:
Transacting value, information, or assets with anyone with internet access, anywhere, at low cost
Self-determination:
Giving you the ability to own, see, and understand your entire digital identity.
Not pull, push:
‘Push' your data to trusted sources instead of ‘pulling' it from others.
Where Does This Leave Us?
Change incentives, change the world. Nick Babalola
People believe web3 can help build a better, fairer system. This is not the same as equal pay or outcomes, but more equal opportunity.
It should be noted that some of these advantages have been discussed previously. Will the changes work? Will they make a difference? These unanswered questions are technical, economic, political, and philosophical. Unintended consequences are likely.
We hope Web3 is a more democratic web. And we think incentives help the user. If there’s one thing that’s on our side, it’s that open has always beaten closed, given a long enough timescale.
We are at the start.
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Will Lockett
3 years ago
The World Will Change With MIT's New Battery
It's cheaper, faster charging, longer lasting, safer, and better for the environment.
Batteries are the future. Next-gen and planet-saving technology, including solar power and EVs, require batteries. As these smart technologies become more popular, we find that our batteries can't keep up. Lithium-ion batteries are expensive, slow to charge, big, fast to decay, flammable, and not environmentally friendly. MIT just created a new battery that eliminates all of these problems. So, is this the battery of the future? Or is there a catch?
When I say entirely new, I mean it. This battery employs no currently available materials. Its electrodes are constructed of aluminium and pure sulfur instead of lithium-complicated ion's metals and graphite. Its electrolyte is formed of molten chloro-aluminate salts, not an organic solution with lithium salts like lithium-ion batteries.
How does this change in materials help?
Aluminum, sulfur, and chloro-aluminate salts are abundant, easy to acquire, and cheap. This battery might be six times cheaper than a lithium-ion battery and use less hazardous mining. The world and our wallets will benefit.
But don’t go thinking this means it lacks performance.
This battery charged in under a minute in tests. At 25 degrees Celsius, the battery will charge 25 times slower than at 110 degrees Celsius. This is because the salt, which has a very low melting point, is in an ideal state at 110 degrees and can carry a charge incredibly quickly. Unlike lithium-ion, this battery self-heats when charging and discharging, therefore no external heating is needed.
Anyone who's seen a lithium-ion battery burst might be surprised. Unlike lithium-ion batteries, none of the components in this new battery can catch fire. Thus, high-temperature charging and discharging speeds pose no concern.
These batteries are long-lasting. Lithium-ion batteries don't last long, as any iPhone owner can attest. During charging, metal forms a dendrite on the electrode. This metal spike will keep growing until it reaches the other end of the battery, short-circuiting it. This is why phone batteries only last a few years and why electric car range decreases over time. This new battery's molten salt slows deposition, extending its life. This helps the environment and our wallets.
These batteries are also energy dense. Some lithium-ion batteries have 270 Wh/kg energy density (volume and mass). Aluminum-sulfur batteries could have 1392 Wh/kg, according to calculations. They'd be 5x more energy dense. Tesla's Model 3 battery would weigh 96 kg instead of 480 kg if this battery were used. This would improve the car's efficiency and handling.
These calculations were for batteries without molten salt electrolyte. Because they don't reflect the exact battery chemistry, they aren't a surefire prediction.
This battery seems great. It will take years, maybe decades, before it reaches the market and makes a difference. Right?
Nope. The project's scientists founded Avanti to develop and market this technology.
So we'll soon be driving cheap, durable, eco-friendly, lightweight, and ultra-safe EVs? Nope.
This battery must be kept hot to keep the salt molten; otherwise, it won't work and will expand and contract, causing damage. This issue could be solved by packs that can rapidly pre-heat, but that project is far off.
Rapid and constant charge-discharge cycles make these batteries ideal for solar farms, homes, and EV charging stations. The battery is constantly being charged or discharged, allowing it to self-heat and maintain an ideal temperature.
These batteries aren't as sexy as those making EVs faster, more efficient, and cheaper. Grid batteries are crucial to our net-zero transition because they allow us to use more low-carbon energy. As we move away from fossil fuels, we'll need millions of these batteries, so the fact that they're cheap, safe, long-lasting, and environmentally friendly will be huge. Who knows, maybe EVs will use this technology one day. MIT has created another world-changing technology.
Woo
3 years ago
How To Launch A Business Without Any Risk
> Say Hello To The Lean-Hedge Model
People think starting a business requires significant debt and investment. Like Shark Tank, you need a world-changing idea. I'm not saying to avoid investors or brilliant ideas.
Investing is essential to build a genuinely profitable company. Think Apple or Starbucks.
Entrepreneurship is risky because many people go bankrupt from debt. As starters, we shouldn't do it. Instead, use lean-hedge.
Simply defined, you construct a cash-flow business to hedge against long-term investment-heavy business expenses.
What the “fx!$rench-toast” is the lean-hedge model?
When you start a business, your money should move down, down, down, then up when it becomes profitable.
Many people don't survive the business's initial losses and debt. What if, we created a cash-flow business BEFORE we started our Starbucks to hedge against its initial expenses?
Lean-hedge has two sections. Start a cash-flow business. A cash-flow business takes minimal investment and usually involves sweat and time.
Let’s take a look at some examples:
A Translation company
Personal portfolio website (you make a site then you do cold e-mail marketing)
FREELANCE (UpWork, Fiverr).
Educational business.
Infomarketing. (You design a knowledge-based product. You sell the info).
Online fitness/diet/health coaching ($50-$300/month, calls, training plan)
Amazon e-book publishing. (Medium writers do this)
YouTube, cash-flow channel
A web development agency (I'm a dev, but if you're not, a graphic design agency, etc.) (Sell your time.)
Digital Marketing
Online paralegal (A million lawyers work in the U.S).
Some dropshipping (Organic Tik Tok dropshipping, where you create content to drive traffic to your shopify store instead of spend money on ads).
(Disclaimer: My first two cash-flow enterprises, which were language teaching, failed terribly. My translation firm is now booming because B2B e-mail marketing is easy.)
Crossover occurs. Your long-term business starts earning more money than your cash flow business.
My cash-flow business (freelancing, translation) makes $7k+/month.
I’ve decided to start a slightly more investment-heavy digital marketing agency
Here are the anticipated business's time- and money-intensive investments:
($$$) Top Front-End designer's Figma/UI-UX design (in negotiation)
(Time): A little copywriting (I will do this myself)
($$) Creating an animated webpage with HTML (in negotiation)
Backend Development (Duration) (I'll carry out this myself using Laravel.)
Logo Design ($$)
Logo Intro Video for $
Video Intro (I’ll edit this myself with Premiere Pro)
etc.
Then evaluate product, place, price, and promotion. Consider promotion and pricing.
The lean-hedge model's point is:
Don't gamble. Avoid debt. First create a cash-flow project, then grow it steadily.
Check read my previous posts on “Nightmare Mode” (which teaches you how to make work as interesting as video games) and Why most people can't escape a 9-5 to learn how to develop a cash-flow business.
Michael Le
3 years ago
Union LA x Air Jordan 2 “Future Is Now” PREVIEW
With the help of Virgil Abloh and Union LA‘s Chris Gibbs, it's now clear that Jordan Brand intended to bring the Air Jordan 2 back in 2022.
The “Future Is Now” collection includes two colorways of MJ's second signature as well as an extensive range of apparel and accessories.
“We wanted to juxtapose what some futuristic gear might look like after being worn and patina'd,”
Union stated on the collaboration's landing page.
“You often see people's future visions that are crisp and sterile. We thought it would be cool to wear it in and make it organic...”
The classic co-branding appears on short-sleeve tees, hoodies, and sweat shorts/sweat pants, all lightly distressed at the hems and seams.
Also, a filtered black-and-white photo of MJ graces the adjacent long sleeves, labels stitch into the socks, and the Jumpman logo adorns the four caps.
Liner jackets and flight pants will also be available, adding reimagined militaria to a civilian ensemble.
The Union LA x Air Jordan 2 (Grey Fog and Rattan) shares many of the same beats. Vintage suedes show age, while perforations and detailing reimagine Bruce Kilgore's design for the future.
The “UN/LA” tag across the modified eye stays, the leather patch across the tongue, and the label that wraps over the lateral side of the collar complete the look.
The footwear will also include a Crater Slide in the “Grey Fog” color scheme.
BUYING
On 4/9 and 4/10 from 9am-3pm, Union LA will be giving away a pair of Air Jordan 2s at their La Brea storefront (110 S. LA BREA AVE. LA, CA 90036). The raffle is only open to LA County residents with a valid CA ID. You must enter by 11:59pm on 4/10 to win. Winners will be notified via email.