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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
Read original post.
More on Web3 & Crypto
Yogesh Rawal
3 years ago
Blockchain to solve growing privacy challenges
Most online activity is now public. Businesses collect, store, and use our personal data to improve sales and services.
In 2014, Uber executives and employees were accused of spying on customers using tools like maps. Another incident raised concerns about the use of ‘FaceApp'. The app was created by a small Russian company, and the photos can be used in unexpected ways. The Cambridge Analytica scandal exposed serious privacy issues. The whole incident raised questions about how governments and businesses should handle data. Modern technologies and practices also make it easier to link data to people.
As a result, governments and regulators have taken steps to protect user data. The General Data Protection Regulation (GDPR) was introduced by the EU to address data privacy issues. The law governs how businesses collect and process user data. The Data Protection Bill in India and the General Data Protection Law in Brazil are similar.
Despite the impact these regulations have made on data practices, a lot of distance is yet to cover.
Blockchain's solution
Blockchain may be able to address growing data privacy concerns. The technology protects our personal data by providing security and anonymity. The blockchain uses random strings of numbers called public and private keys to maintain privacy. These keys allow a person to be identified without revealing their identity. Blockchain may be able to ensure data privacy and security in this way. Let's dig deeper.
Financial transactions
Online payments require third-party services like PayPal or Google Pay. Using blockchain can eliminate the need to trust third parties. Users can send payments between peers using their public and private keys without providing personal information to a third-party application. Blockchain will also secure financial data.
Healthcare data
Blockchain technology can give patients more control over their data. There are benefits to doing so. Once the data is recorded on the ledger, patients can keep it secure and only allow authorized access. They can also only give the healthcare provider part of the information needed.
The major challenge
We tried to figure out how blockchain could help solve the growing data privacy issues. However, using blockchain to address privacy concerns has significant drawbacks. Blockchain is not designed for data privacy. A ‘distributed' ledger will be used to store the data. Another issue is the immutability of blockchain. Data entered into the ledger cannot be changed or deleted. It will be impossible to remove personal data from the ledger even if desired.
MIT's Enigma Project aims to solve this. Enigma's ‘Secret Network' allows nodes to process data without seeing it. Decentralized applications can use Secret Network to use encrypted data without revealing it.
Another startup, Oasis Labs, uses blockchain to address data privacy issues. They are working on a system that will allow businesses to protect their customers' data.
Conclusion
Blockchain technology is already being used. Several governments use blockchain to eliminate centralized servers and improve data security. In this information age, it is vital to safeguard our data. How blockchain can help us in this matter is still unknown as the world explores the technology.
Yusuf Ibrahim
3 years ago
How to sell 10,000 NFTs on OpenSea for FREE (Puppeteer/NodeJS)
So you've finished your NFT collection and are ready to sell it. Except you can't figure out how to mint them! Not sure about smart contracts or want to avoid rising gas prices. You've tried and failed with apps like Mini mouse macro, and you're not familiar with Selenium/Python. Worry no more, NodeJS and Puppeteer have arrived!
Learn how to automatically post and sell all 1000 of my AI-generated word NFTs (Nakahana) on OpenSea for FREE!
My NFT project — Nakahana |
NOTE: Only NFTs on the Polygon blockchain can be sold for free; Ethereum requires an initiation charge. NFTs can still be bought with (wrapped) ETH.
If you want to go right into the code, here's the GitHub link: https://github.com/Yusu-f/nftuploader
Let's start with the knowledge and tools you'll need.
What you should know
You must be able to write and run simple NodeJS programs. You must also know how to utilize a Metamask wallet.
Tools needed
- NodeJS. You'll need NodeJs to run the script and NPM to install the dependencies.
- Puppeteer – Use Puppeteer to automate your browser and go to sleep while your computer works.
- Metamask – Create a crypto wallet and sign transactions using Metamask (free). You may learn how to utilize Metamask here.
- Chrome – Puppeteer supports Chrome.
Let's get started now!
Starting Out
Clone Github Repo to your local machine. Make sure that NodeJS, Chrome, and Metamask are all installed and working. Navigate to the project folder and execute npm install. This installs all requirements.
Replace the “extension path” variable with the Metamask chrome extension path. Read this tutorial to find the path.
Substitute an array containing your NFT names and metadata for the “arr” variable and the “collection_name” variable with your collection’s name.
Run the script.
After that, run node nftuploader.js.
Open a new chrome instance (not chromium) and Metamask in it. Import your Opensea wallet using your Secret Recovery Phrase or create a new one and link it. The script will be unable to continue after this but don’t worry, it’s all part of the plan.
Next steps
Open your terminal again and copy the route that starts with “ws”, e.g. “ws:/localhost:53634/devtools/browser/c07cb303-c84d-430d-af06-dd599cf2a94f”. Replace the path in the connect function of the nftuploader.js script.
const browser = await puppeteer.connect({ browserWSEndpoint: "ws://localhost:58533/devtools/browser/d09307b4-7a75-40f6-8dff-07a71bfff9b3", defaultViewport: null });
Rerun node nftuploader.js. A second tab should open in THE SAME chrome instance, navigating to your Opensea collection. Your NFTs should now start uploading one after the other! If any errors occur, the NFTs and errors are logged in an errors.log file.
Error Handling
The errors.log file should show the name of the NFTs and the error type. The script has been changed to allow you to simply check if an NFT has already been posted. Simply set the “searchBeforeUpload” setting to true.
We're done!
If you liked it, you can buy one of my NFTs! If you have any concerns or would need a feature added, please let me know.
Thank you to everyone who has read and liked. I never expected it to be so popular.
Jonathan Vanian
3 years ago
What is Terra? Your guide to the hot cryptocurrency
With cryptocurrencies like Bitcoin, Ether, and Dogecoin gyrating in value over the past few months, many people are looking at so-called stablecoins like Terra to invest in because of their more predictable prices.
Terraform Labs, which oversees the Terra cryptocurrency project, has benefited from its rising popularity. The company said recently that investors like Arrington Capital, Lightspeed Venture Partners, and Pantera Capital have pledged $150 million to help it incubate various crypto projects that are connected to Terra.
Terraform Labs and its partners have built apps that operate on the company’s blockchain technology that helps keep a permanent and shared record of the firm’s crypto-related financial transactions.
Here’s what you need to know about Terra and the company behind it.
What is Terra?
Terra is a blockchain project developed by Terraform Labs that powers the startup’s cryptocurrencies and financial apps. These cryptocurrencies include the Terra U.S. Dollar, or UST, that is pegged to the U.S. dollar through an algorithm.
Terra is a stablecoin that is intended to reduce the volatility endemic to cryptocurrencies like Bitcoin. Some stablecoins, like Tether, are pegged to more conventional currencies, like the U.S. dollar, through cash and cash equivalents as opposed to an algorithm and associated reserve token.
To mint new UST tokens, a percentage of another digital token and reserve asset, Luna, is “burned.” If the demand for UST rises with more people using the currency, more Luna will be automatically burned and diverted to a community pool. That balancing act is supposed to help stabilize the price, to a degree.
“Luna directly benefits from the economic growth of the Terra economy, and it suffers from contractions of the Terra coin,” Terraform Labs CEO Do Kwon said.
Each time someone buys something—like an ice cream—using UST, that transaction generates a fee, similar to a credit card transaction. That fee is then distributed to people who own Luna tokens, similar to a stock dividend.
Who leads Terra?
The South Korean firm Terraform Labs was founded in 2018 by Daniel Shin and Kwon, who is now the company’s CEO. Kwon is a 29-year-old former Microsoft employee; Shin now heads the Chai online payment service, a Terra partner. Kwon said many Koreans have used the Chai service to buy goods like movie tickets using Terra cryptocurrency.
Terraform Labs does not make money from transactions using its crypto and instead relies on outside funding to operate, Kwon said. It has raised $57 million in funding from investors like HashKey Digital Asset Group, Divergence Digital Currency Fund, and Huobi Capital, according to deal-tracking service PitchBook. The amount raised is in addition to the latest $150 million funding commitment announced on July 16.
What are Terra’s plans?
Terraform Labs plans to use Terra’s blockchain and its associated cryptocurrencies—including one pegged to the Korean won—to create a digital financial system independent of major banks and fintech-app makers. So far, its main source of growth has been in Korea, where people have bought goods at stores, like coffee, using the Chai payment app that’s built on Terra’s blockchain. Kwon said the company’s associated Mirror trading app is experiencing growth in China and Thailand.
Meanwhile, Kwon said Terraform Labs would use its latest $150 million in funding to invest in groups that build financial apps on Terra’s blockchain. He likened the scouting and investing in other groups as akin to a “Y Combinator demo day type of situation,” a reference to the popular startup pitch event organized by early-stage investor Y Combinator.
The combination of all these Terra-specific financial apps shows that Terraform Labs is “almost creating a kind of bank,” said Ryan Watkins, a senior research analyst at cryptocurrency consultancy Messari.
In addition to cryptocurrencies, Terraform Labs has a number of other projects including the Anchor app, a high-yield savings account for holders of the group’s digital coins. Meanwhile, people can use the firm’s associated Mirror app to create synthetic financial assets that mimic more conventional ones, like “tokenized” representations of corporate stocks. These synthetic assets are supposed to be helpful to people like “a small retail trader in Thailand” who can more easily buy shares and “get some exposure to the upside” of stocks that they otherwise wouldn’t have been able to obtain, Kwon said. But some critics have said the U.S. Securities and Exchange Commission may eventually crack down on synthetic stocks, which are currently unregulated.
What do critics say?
Terra still has a long way to go to catch up to bigger cryptocurrency projects like Ethereum.
Most financial transactions involving Terra-related cryptocurrencies have originated in Korea, where its founders are based. Although Terra is becoming more popular in Korea thanks to rising interest in its partner Chai, it’s too early to say whether Terra-related currencies will gain traction in other countries.
Terra’s blockchain runs on a “limited number of nodes,” said Messari’s Watkins, referring to the computers that help keep the system running. That helps reduce latency that may otherwise slow processing of financial transactions, he said.
But the tradeoff is that Terra is less “decentralized” than other blockchain platforms like Ethereum, which is powered by thousands of interconnected computing nodes worldwide. That could make Terra less appealing to some blockchain purists.
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Cory Doctorow
2 years ago
The downfall of the Big Four accounting companies is just one (more) controversy away.
Economic mutual destruction.
Multibillion-dollar corporations never bothered with an independent audit, and they all lied about their balance sheets.
It's easy to forget that the Big Four accounting firms are lousy fraud enablers. Just because they sign off on your books doesn't mean you're not a hoax waiting to erupt.
This is *crazy* Capitalism depends on independent auditors. Rich folks need to know their financial advisers aren't lying. Rich folks usually succeed.
No accounting. EY, KPMG, PWC, and Deloitte make more money consulting firms than signing off on their accounts.
The Big Four sign off on phony books because failing to make friends with unscrupulous corporations may cost them consulting contracts.
The Big Four are the only firms big enough to oversee bankruptcy when they sign off on fraudulent books, as they did for Carillion in 2018. All four profited from Carillion's bankruptcy.
The Big Four are corrupt without any consequences for misconduct. Who can forget when KPMG's top management was fined millions for helping auditors cheat on ethics exams?
Consulting and auditing conflict. Consultants help a firm cover its evil activities, such as tax fraud or wage theft, whereas auditors add clarity to a company's finances. The Big Four make more money from cooking books than from uncooking them, thus they are constantly embroiled in scandals.
If a major scandal breaks, it may bring down the entire sector and substantial parts of the economy. Jim Peterson explains system risk for The Dig.
The Big Four are voluntary private partnerships where accountants invest their time, reputations, and money. If a controversy threatens the business, partners who depart may avoid scandal and financial disaster.
When disaster looms, each partner should bolt for the door, even if a disciplined stay-and-hold posture could weather the storm. This happened to Arthur Andersen during Enron's collapse, and a 2006 EU report recognized the risk to other corporations.
Each partner at a huge firm knows how much dirty laundry they've buried in the company's garden, and they have well-founded suspicions about what other partners have buried, too. When someone digs, everyone runs.
If a firm confronts substantial litigation damages or enforcement penalties, it could trigger the collapse of one of the Big Four. That would be bad news for the firm's clients, who would have trouble finding another big auditor.
Most of the world's auditing capacity is concentrated in four enormous, brittle, opaque, compromised organizations. If one of them goes bankrupt, the other three won't be able to take on its clients.
Peterson: Another collapse would strand many of the world's large public businesses, leaving them unable to obtain audit views for their securities listings and regulatory compliance.
Count Down: The Past, Present, and Uncertain Future of the Big Four Accounting Firms is in its second edition.
https://www.emerald.com/insight/publication/doi/10.1108/9781787147003
Camilla Dudley
3 years ago
How to gain Twitter followers: A 101 Guide
No wonder brands use Twitter to reach their audience. 53% of Twitter users buy new products first.
Twitter growth does more than make your brand look popular. It helps clients trust your business. It boosts your industry standing. It shows clients, prospects, and even competitors you mean business.
How can you naturally gain Twitter followers?
Share useful information
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Spread your @name everywhere.
Use existing customers
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Share useful information
Twitter users join conversations and consume material. To build your followers, make sure your material appeals to them and gives value, whether it's sales, product lessons, or current events.
Use Twitter Analytics to learn what your audience likes.
Explore popular topics by utilizing relevant keywords and hashtags. Check out this post on how to use Twitter trends.
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Tweet often
Your audience should expect regular content updates. Plan your ideas and tweet during crucial seasons and events with a content calendar.
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Twitter connects people. Do more than tweet. Follow industry leaders. Retweet influencers, engage with thought leaders, and reply to mentions and customers to boost engagement.
Micro-influencers can promote your brand or items. They can help you gain new audiences' trust.
Spread your @name everywhere.
Maximize brand exposure. Add a follow button on your website, link to it in your email signature and newsletters, and promote it on business cards or menus.
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Emails can be used to find existing Twitter clients. Upload your email contacts and follow your customers on Twitter to start a dialogue.
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Increasing your brand's Twitter followers takes effort and experimentation, but the payback is huge.
👋 Follow me on twitter
Ben Carlson
3 years ago
Bear market duration and how to invest during one
Bear markets don't last forever, but that's hard to remember. Jamie Cullen's illustration
A bear market is a 20% decline from peak to trough in stock prices.
The S&P 500 was down 24% from its January highs at its low point this year. Bear market.
The U.S. stock market has had 13 bear markets since WWII (including the current one). Previous 12 bear markets averaged –32.7% losses. From peak to trough, the stock market averaged 12 months. The average time from bottom to peak was 21 months.
In the past seven decades, a bear market roundtrip to breakeven has averaged less than three years.
Long-term averages can vary widely, as with all historical market data. Investors can learn from past market crashes.
Historical bear markets offer lessons.
Bear market duration
A bear market can cost investors money and time. Most of the pain comes from stock market declines, but bear markets can be long.
Here are the longest U.S. stock bear markets since World war 2:
Stock market crashes can make it difficult to break even. After the 2008 financial crisis, the stock market took 4.5 years to recover. After the dotcom bubble burst, it took seven years to break even.
The longer you're underwater in the market, the more suffering you'll experience, according to research. Suffering can lead to selling at the wrong time.
Bear markets require patience because stocks can take a long time to recover.
Stock crash recovery
Bear markets can end quickly. The Corona Crash in early 2020 is an example.
The S&P 500 fell 34% in 23 trading sessions, the fastest bear market from a high in 90 years. The entire crash lasted one month. Stocks broke even six months after bottoming. Stocks rose 100% from those lows in 15 months.
Seven bear markets have lasted two years or less since 1945.
The 2020 recovery was an outlier, but four other bear markets have made investors whole within 18 months.
During a bear market, you don't know if it will end quickly or feel like death by a thousand cuts.
Recessions vs. bear markets
Many people believe the U.S. economy is in or heading for a recession.
I agree. Four-decade high inflation. Since 1945, inflation has exceeded 5% nine times. Each inflationary spike caused a recession. Only slowing economic demand seems to stop price spikes.
This could happen again. Stocks seem to be pricing in a recession.
Recessions almost always cause a bear market, but a bear market doesn't always equal a recession. In 1946, the stock market fell 27% without a recession in sight. Without an economic slowdown, the stock market fell 22% in 1966. Black Monday in 1987 was the most famous stock market crash without a recession. Stocks fell 30% in less than a week. Many believed the stock market signaled a depression. The crash caused no slowdown.
Economic cycles are hard to predict. Even Wall Street makes mistakes.
Bears vs. bulls
Bear markets for U.S. stocks always end. Every stock market crash in U.S. history has been followed by new all-time highs.
How should investors view the recession? Investing risk is subjective.
You don't have as long to wait out a bear market if you're retired or nearing retirement. Diversification and liquidity help investors with limited time or income. Cash and short-term bonds drag down long-term returns but can ensure short-term spending.
Young people with years or decades ahead of them should view this bear market as an opportunity. Stock market crashes are good for net savers in the future. They let you buy cheap stocks with high dividend yields.
You need discipline, patience, and planning to buy stocks when it doesn't feel right.
Bear markets aren't fun because no one likes seeing their portfolio fall. But stock market downturns are a feature, not a bug. If stocks never crashed, they wouldn't offer such great long-term returns.