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

Jayden Levitt
3 years ago
The country of El Salvador's Bitcoin-obsessed president lost $61.6 million.
It’s only a loss if you sell, right?
Nayib Bukele proclaimed himself “the world’s coolest dictator”.
His jokes aren't clear.
El Salvador's 43rd president self-proclaimed “CEO of El Salvador” couldn't be less presidential.
His thin jeans, aviator sunglasses, and baseball caps like a cartel lord.
He's popular, though.
Bukele won 53% of the vote by fighting violent crime and opposition party corruption.
El Salvador's 6.4 million inhabitants are riding the cryptocurrency volatility wave.
They were powerless.
Their autocratic leader, a former Yamaha Motors salesperson and Bitcoin believer, wants to help 70% unbanked locals.
He intended to give the citizens a way to save money and cut the country's $200 million remittance cost.
Transfer and deposit costs.
This makes logical sense when the president’s theatrics don’t blind you.
El Salvador's Bukele revealed plans to make bitcoin legal tender.
Remittances total $5.9 billion (23%) of the country's expenses.
Anything that reduces costs could boost the economy.
The country’s unbanked population is staggering. Here’s the data by % of people who either have a bank account (Blue) or a mobile money account (Black).
According to Bukele, 46% of the population has downloaded the Chivo Bitcoin Wallet.
In 2021, 36% of El Salvadorans had bank accounts.
Large rural countries like Kenya seem to have resolved their unbanked dilemma.
An economy surfaced where village locals would sell, trade and store network minutes and data as a store of value.
Kenyan phone networks realized unbanked people needed a safe way to accumulate wealth and have an emergency fund.
96% of Kenyans utilize M-PESA, which doesn't require a bank account.
The software involves human agents who hang out with cash and a phone.
These people are like ATMs.
You offer them cash to deposit money in your mobile money account or withdraw cash.
In a country with a faulty banking system, cash availability and a safe place to deposit it are important.
William Jack and Tavneet Suri found that M-PESA brought 194,000 Kenyan households out of poverty by making transactions cheaper and creating a safe store of value.
Mobile money, a service that allows monetary value to be stored on a mobile phone and sent to other users via text messages, has been adopted by most Kenyan households. We estimate that access to the Kenyan mobile money system M-PESA increased per capita consumption levels and lifted 194,000 households, or 2% of Kenyan households, out of poverty.
The impacts, which are more pronounced for female-headed households, appear to be driven by changes in financial behaviour — in particular, increased financial resilience and saving. Mobile money has therefore increased the efficiency of the allocation of consumption over time while allowing a more efficient allocation of labour, resulting in a meaningful reduction of poverty in Kenya.
Currently, El Salvador has 2,301 Bitcoin.
At publication, it's worth $44 million. That remains 41% of Bukele's original $105.6 million.
Unknown if the country has sold Bitcoin, but Bukeles keeps purchasing the dip.
It's still falling.
This might be a fantastic move for the impoverished country over the next five years, if they can live economically till Bitcoin's price recovers.
The evidence demonstrates that a store of value pulls individuals out of poverty, but others say Bitcoin is premature.
You may regard it as an aggressive endeavor to front run the next wave of adoption, offering El Salvador a financial upside.

rekt
3 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.

Miguel Saldana
3 years ago
Crypto Inheritance's Catch-22
Security, privacy, and a strategy!
How to manage digital assets in worst-case scenarios is a perennial crypto concern. Since blockchain and bitcoin technology is very new, this hasn't been a major issue. Many early developers are still around, and many groups created around this technology are young and feel they have a lot of life remaining. This is why inheritance and estate planning in crypto should be handled promptly. As cryptocurrency's intrinsic worth rises, many people in the ecosystem are holding on to assets that might represent generational riches. With that much value, it's crucial to have a plan. Creating a solid plan entails several challenges.
the initial hesitation in coming up with a plan
The technical obstacles to ensuring the assets' security and privacy
the passing of assets from a deceased or incompetent person
Legal experts' lack of comprehension and/or understanding of how to handle and treat cryptocurrency.
This article highlights several challenges, a possible web3-native solution, and how to learn more.
The Challenge of Inheritance:
One of the biggest hurdles to inheritance planning is starting the conversation. As humans, we don't like to think about dying. Early adopters will experience crazy gains as cryptocurrencies become more popular. Creating a plan is crucial if you wish to pass on your riches to loved ones. Without a plan, the technical and legal issues I barely mentioned above would erode value by requiring costly legal fees and/or taxes, and you could lose everything if wallets and assets are not distributed appropriately (associated with the private keys). Raising awareness of the consequences of not having a plan should motivate people to make one.
Controlling Change:
Having an inheritance plan for your digital assets is crucial, but managing the guts and bolts poses a new set of difficulties. Privacy and security provided by maintaining your own wallet provide different issues than traditional finances and assets. Traditional finance is centralized (say a stock brokerage firm). You can assign another person to handle the transfer of your assets. In crypto, asset transfer is reimagined. One may suppose future transaction management is doable, but the user must consent, creating an impossible loop.
I passed away and must send a transaction to the person I intended to deliver it to.
I have to confirm or authorize the transaction, but I'm dead.
In crypto, scheduling a future transaction wouldn't function. To transfer the wallet and its contents, we'd need the private keys and/or seed phrase. Minimizing private key exposure is crucial to protecting your crypto from hackers, social engineering, and phishing. People have lost private keys after utilizing Life Hack-type tactics to secure them. People that break and hide their keys, lose them, or make them unreadable won't help with managing and/or transferring. This will require a derived solution.
Legal Challenges and Implications
Unlike routine cryptocurrency transfers and transactions, local laws may require special considerations. Even in the traditional world, estate/inheritance taxes, how assets will be split, and who executes the will must be considered. Many lawyers aren't crypto-savvy, which complicates the matter. There will be many hoops to jump through to safeguard your crypto and traditional assets and give them to loved ones.
Knowing RUFADAA/UFADAA, depending on your state, is vital for Americans. UFADAA offers executors and trustees access to online accounts (which crypto wallets would fall into). RUFADAA was changed to limit access to the executor to protect assets. RUFADAA outlines how digital assets are administered following death and incapacity in the US.
A Succession Solution
Having a will and talking about who would get what is the first step to having a solution, but using a Dad Mans Switch is a perfect tool for such unforeseen circumstances. As long as the switch's controller has control, nothing happens. Losing control of the switch initiates a state transition.
Subway or railway operations are examples. Modern control systems need the conductor to hold a switch to keep the train going. If they can't, the train stops.
Enter Sarcophagus
Sarcophagus is a decentralized dead man's switch built on Ethereum and Arweave. Sarcophagus allows actors to maintain control of their possessions even while physically unable to do so. Using a programmable dead man's switch and dual encryption, anything can be kept and passed on. This covers assets, secrets, seed phrases, and other use cases to provide authority and control back to the user and release trustworthy services from this work. Sarcophagus is built on a decentralized, transparent open source codebase. Sarcophagus is there if you're unprepared.
You might also like

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
Post visual content
Tweet consistently
Socialize
Spread your @name everywhere.
Use existing customers
Promote followers
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.
Post visual content
97% of Twitter users focus on images, so incorporating media can help your Tweets stand out. Visuals and videos make content more engaging and memorable.
Tweet often
Your audience should expect regular content updates. Plan your ideas and tweet during crucial seasons and events with a content calendar.
Socialize
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.
Use existing customers
Emails can be used to find existing Twitter clients. Upload your email contacts and follow your customers on Twitter to start a dialogue.
Promote followers
Run a followers campaign to boost your organic growth. Followers campaigns promote your account to a particular demographic, and you only pay when someone follows you.
Consider short campaigns to enhance momentum or an always-on campaign to gain new followers.
Increasing your brand's Twitter followers takes effort and experimentation, but the payback is huge.
👋 Follow me on twitter

Tim Denning
2 years ago
One of the biggest publishers in the world offered me a book deal, but I don't feel deserving of it.
My ego is so huge it won't fit through the door.
I don't know how I feel about it. I should be excited. Many of you have this exact dream to publish a book with a well-known book publisher and get a juicy advance.
Let me dissect how I'm thinking about it to help you.
How it happened
An email comes in. A generic "can we put a backlink on your website and get a freebie" email.
Almost deleted it.
Then I noticed the logo. It seemed shady. I found the URL. Check. I searched the employee's LinkedIn. Legit. I avoided middlemen. Check.
Mixed feelings. LinkedIn hasn't valued my writing for years. I'm just a guy in an unironed t-shirt whose content they sell advertising against.
They get big dollars. I get $0 and a few likes, plus some email subscribers.
Still, I felt adrenaline for hours.
I texted a few friends to see how they felt. I wrapped them.
Messages like "No shocker. You're entertaining online." I didn't like praises, so I blushed.
The thrill faded after hours. Who knows?
Most authors desire this chance.
"You entitled piece of crap, Denning!"
You may think so. Okay. My job is to stand on the internet and get bananas thrown at me.
I approached writing backwards. More important than a book deal was a social media audience converted to an email list.
Romantic authors think backward. They hope a fantastic book will land them a deal and an audience.
Rarely occurs. So I never pursued it. It's like permission-seeking or the lottery.
Not being a professional writer, I've never written a good book. I post online for fun and to express my opinions.
Writing is therapeutic. I overcome mental illness and rebuilt my life this way. Without blogging, I'd be dead.
I've always dreamed of staying alive and doing something I love, not getting a book contract. Writing is my passion. I'm a winner without a book deal.
Why I was given a book deal
You may assume I received a book contract because of my views or follows. Nope.
They gave me a deal because they like my writing style. I've heard this for eight years.
Several authors agree. One asked me to improve their writer's voice.
Takeaway: highlight your writer's voice.
What if they discover I'm writing incompetently?
An edited book is published. It's edited.
I need to master writing mechanics, thus this concerns me. I need help with commas and sentence construction.
I must learn verb, noun, and adjective. Seriously.
Writing a book may reveal my imposter status to a famous publisher. Imagine the email
"It happened again. He doesn't even know how to spell. He thinks 'less' is the correct word, not 'fewer.' Are you sure we should publish his book?"
Fears stink.
I'm capable of blogging. Even listicles. So what?
Writing for a major publisher feels advanced.
I only blog. I'm good at listicles. Digital media executives have criticized me for this.
It is allegedly clickbait.
Or it is following trends.
Alternately, growth hacking.
Never. I learned copywriting to improve my writing.
Apple, Amazon, and Tesla utilize copywriting to woo customers. Whoever thinks otherwise is the wisest person in the room.
Old-schoolers loathe copywriters.
Their novels sell nothing.
They assume their elitist version of writing is better and that the TikTok generation will invest time in random writing with no subheadings and massive walls of text they can't read on their phones.
I'm terrified of book proposals.
My friend's book proposal suggestion was contradictory and made no sense.
They told him to compose another genre. This book got three Amazon reviews. Is that a good model?
The process disappointed him. I've heard other book proposal horror stories. Tim Ferriss' book "The 4-Hour Workweek" was criticized.
Because he has thick skin, his book came out. He wouldn't be known without that.
I hate book proposals.
An ongoing commitment
Writing a book is time-consuming.
I appreciate time most. I want to focus on my daughter for the next few years. I can't recreate her childhood because of a book.
No idea how parents balance kids' goals.
My silly face in a bookstore. Really?
Genuine thought.
I don't want my face in bookstores. I fear fame. I prefer anonymity.
I want to purchase a property in a bad Australian area, then piss off and play drums. Is bookselling worth it?
Are there even bookstores anymore?
(Except for Ryan Holiday's legendary Painted Porch Bookshop in Texas.)
What's most important about books
Many were duped.
Tweets and TikTok hopscotch vids are their future. Short-form content creates devoted audiences that buy newsletter subscriptions.
Books=depth.
Depth wins (if you can get people to buy your book). Creating a book will strengthen my reader relationships.
It's cheaper than my classes, so more people can benefit from my life lessons.
A deeper justification for writing a book
Mind wandered.
If I write this book, my daughter will follow it. "Look what you can do, love, when you ignore critics."
That's my favorite.
I'll be her best leader and teacher. If her dad can accomplish this, she can too.
My kid can read my book when I'm gone to remember her loving father.
Last paragraph made me cry.
The positive
This book thing might make me sound like Karen.
The upside is... Building in public, like I have with online writing, attracts the right people.
Proof-of-work over proposals, beautiful words, or huge aspirations. If you want a book deal, try writing online instead of the old manner.
Next steps
No idea.
I'm a rural Aussie. Writing a book in the big city is intimidating. Will I do it? Lots to think about. Right now, some level of reflection and gratitude feels most appropriate.
Sometimes when you don't feel worthy, it gives you the greatest lessons. That's how I feel about getting offered this book deal.
Perhaps you can relate.

CyberPunkMetalHead
2 years ago
Why Bitcoin NFTs Are Incomprehensible yet Likely Here to Stay
I'm trying to understand why Bitcoin NFTs aren't ready.
Ordinals, a new Bitcoin protocol, has been controversial. NFTs can be added to Bitcoin transactions using the protocol. They are not tokens or fungible. Bitcoin NFTs are transaction metadata. Yes. They're not owned.
In January, the Ordinals protocol allowed data like photos to be directly encoded onto sats, the smallest units of Bitcoin worth 0.00000001 BTC, on the Bitcoin blockchain. Ordinals does not need a sidechain or token like other techniques. The Ordinals protocol has encoded JPEG photos, digital art, new profile picture (PFP) projects, and even 1993 DOOM onto the Bitcoin network.
Ordinals inscriptions are permanent digital artifacts preserved on the Bitcoin blockchain. It differs from Ethereum, Solana, and Stacks NFT technologies that allow smart contract creators to change information. Ordinals store the whole image or content on the blockchain, not just a link to an external server, unlike centralized databases, which can change the linked image, description, category, or contract identifier.
So far, more than 50,000 ordinals have been produced on the Bitcoin blockchain, and some of them have already been sold for astronomical amounts. The Ethereum-based CryptoPunks NFT collection spawned Ordinal Punk. Inscription 620 sold for 9.5 BTC, or $218,000, the most.
Segwit and Taproot, two important Bitcoin blockchain updates, enabled this. These protocols store transaction metadata, unlike Ethereum, where the NFT is the token. Bitcoin's NFT is a sat's transaction details.
What effects do ordinary values and NFTs have on the Bitcoin blockchain?
Ordinals will likely have long-term effects on the Bitcoin Ecosystem since they store, transact, and compute more data.
Charges Ordinals introduce scalability challenges. The Bitcoin network has limited transaction throughput and increased fees during peak demand. NFTs could make network transactions harder and more expensive. Ordinals currently occupy over 50% of block space, according to Glassnode.
One of the protocols that supported Ordinals Taproot has also seen a huge uptick:
Taproot use increases block size and transaction costs.
This could cause network congestion but also support more L2s with Ordinals-specific use cases. Dune info here.
Storage Needs The Bitcoin blockchain would need to store more data to store NFT data directly. Since ordinals were introduced, blocksize has tripled from 0.7mb to over 2.2mb, which could increase storage costs and make it harder for nodes to join the network.
Use Case Diversity On the other hand, NFTs on the Bitcoin blockchain could broaden Bitcoin's use cases beyond storage and payment. This could expand Bitcoin's user base. This is two-sided. Bitcoin was designed to be trustless, decentralized, peer-to-peer money.
Chain to permanently store NFTs as ordinals will change everything.
Popularity rise This new use case will boost Bitcoin appeal, according to some. This argument fails since Bitcoin is the most popular cryptocurrency. Popularity doesn't require a new use case. Cryptocurrency adoption boosts Bitcoin. It need not compete with Ethereum or provide extra benefits to crypto investors. If there was a need for another chain that supports NFTs (there isn't), why would anyone choose the slowest and most expensive network? It appears contradictory and unproductive.
Nonetheless, holding an NFT on the Bitcoin blockchain is more secure than any other blockchain, but this has little utility.
Bitcoin NFTs are undoubtedly controversial. NFTs are strange and perhaps harmful to Bitcoin's mission. If Bitcoin NFTs are here to stay, I hope a sidechain or rollup solution will take over and leave the base chain alone.
:max_bytes(150000):strip_icc():gifv():format(webp)/reiff_headshot-5bfc2a60c9e77c00519a70bd.jpg)