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SEC Issues Report Concluding DAO Tokens, a Digital Asset, Were Securities
- discombobulate 9y agoRemoved. I'm not from the US.
- vasilipupkin 9y agoI am not sure how that exempts anyone from anything. If you, as a Swiss company, issue tokens that are securities according to country X and sell them to citizens of country X without going through a securities offering, you are violating that country's securities laws and the fact that you are based in Switzerland I don't think is relevant
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- joeyspn 9y agoBOOM! the game just changed... > In light of the facts and circumstances, the agency has decided not to bring charges in this instance, or make findings of violations in the Report, but rather to caution the industry and market participants: the federal securities laws apply to those who offer and sell securities in the United States, regardless whether the issuing entity is a traditional company or a decentralized autonomous organization, regardless whether those securities are purchased using U.S. dollars or virtual currencies, and regardless whether they are distributed in certificated form or through distributed ledger technology.
- smokeyj 9y agoThis literally changes nothing. Regulated companies already knew what the findings would be. Unregulated companies still don't care.
- brucephillips 9y agoWhat is an "unregulated company"?
- empath75 9y agoCriminal enterprises.
- brucephillips 9y agoWhich are still regulated. They just flout the regulations.
- pishpash 9y agoThere are unregulated exchanges, usually small.
- binarymax 9y agoThis changes lots of things. You can't just open an DAO/ETH/BTC exchange, you need to be compliant with securities law and regulation. Those who operate as an exchange now but do not file the proper paperwork (which is expensive) should expect audits, fines, and shutdown.
- brucephillips 9y agoI don't think the findings unequivocally imply that ETH and BTC are securities. Or am I missing something?
- tannhauser23 9y agoIt's saying that companies raising money through ICOs are issuing securities in form of ownership tokens in their companies.
- brucephillips 9y ago
- Animats 9y agoYes. The SEC is indicating that they're not going to apply this retroactively. Any upcoming Initial Coin Offering to US persons, though, is in trouble. Like all the ones listed here.[1] [1] https://www.icoalert.com/ https://www.icoalert.com/
- modeless 9y agoI would not count on them not applying this retroactively. The DAO is safe (along with Bitcoin and Ethereum themselves) but everyone else is not. I've heard interviews with some ICO people and it's clear that they know what they're doing is legally questionable. They're doing it anyway because of the obscene amount of money on the table. The SEC will not look kindly on these people.
- hudon 9y agoAre we sure Ethereum is safe? Bitcoin never did a premined token sale but the Ethereum Foundation did, so it looks much more like theDAO than Bitcoin does.
- uncoder0 9y agoYeah this is my question... A lawyer that spoke @ Devcon 2 almost a year ago seemed to think Ether(ETH) did not pass the Howey test. http://www.ibtimes.co.uk/devcon-2-ethereum-may-pass-howey-test-us-securities-law-1582029 http://www.ibtimes.co.uk/devcon-2-ethereum-may-pass-howey-te...
- 52-6F-62 9y agoI think there might be a gotcha there. SEC rulings only apply to dealings within the United States. Being that Ethereum is [at least in general, if arguably not] decentralized, and largely pegged to a Canadian, and started in Switzerland it might not be so simple. The Ethereum Foundation itself is a Swiss nonprofit. Of course, it remains to be seen what this will turn into. Even if it comes crashing down in the United States, that has little effect on the viability in the rest of the world... especially as of late. I just wouldn't want to try and run an ICO in the US as a resident of the US!
- lossolo 9y agoThis changes nothing to most of the ICOs, most of them have information that they do not offer their tokens to US citizens.
- joosters 9y agoAre they obliged to check this, though? The only checks I've ever seen are making investors tick a box on a webpage to confirm that they aren't a US citizen. Is that good enough, or are these ICOs expected to do more thorough checking? Some ICOs have advertised their sales in the US, I wonder if the SEC will look on that as offering their tokens to US citizens, whatever the wording they put on their websites?
- qznc 9y agoThe price of ETH and various ICO was not affected at all. Most ETH volume is in Asia, so maybe they just don't care.
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- robbiet480 9y agoThis appears to only applies to ICOs that offer something that is like a security, such as the DAO, not voucher based ICOs like Primalbase or Storj EDIT: Added appears to since IANAL
- Kiro 9y agoCare to elaborate? What's the difference?
- laser 9y agoIANAL, but a security is profit-sharing/right to $-related things, like stocks and bonds. Tokens that are used to make purchases within applications/networks are not securities, for example in the Storj example above, tokens are bought to purchase storage, and there's no implication of organization profit-sharing or appreciation of value, etc. While some people may speculate on the growth of the network and purchase such tokens, their purpose is to purchase storage capacity from the network.
- brucephillips 9y ago> and there's no implication of organization profit-sharing or appreciation of value, etc. There is. These tokens are explicitly marketed on that basis.
- Animats 9y agoAssuming that would be unwise. In general, US securities laws cover anything that looks or works something like a security. There have been clever attempts to get around this before. They didn't work.[1] [1] https://en.wikipedia.org/wiki/SEC_v._W._J._Howey_Co https://en.wikipedia.org/wiki/SEC_v._W._J._Howey_Co.
- darawk 9y agoYou're right, but in the case of things like Storj and Sia, for instance, the ICO token is used to pay for the services offered by the network. What it really is, is a tradable pre-sale. It's as if you could trade the perks offered by a Kickstarter. I'm not sure if that would make it exempt or not, but it is an interesting legal question.
- dmitrygr 9y agoGood. This should help bring some sanity and accountability. they were both quite needed
- armenarmen 9y agoThere's no room for buyer beware? I mean c'mon. People participating in ICOs are still pretty sophisticated technically. Seems like we're regulating interactions between well informed consenting adults.
- vkou 9y agoHow familiar are you with the history of securities laws? Do you know why they were drafted? Every con artist in history has claimed that their mark knew what they were getting into.
- armenarmen 9y agoDAOs and the JOBS act for sure open up opportunities for crooks to do some "boiler-maker-esque" stuff. I cannot disagree with that. And I do not doubt that gullible people can be hoodwinked by bad people. I would say that fraud and property theft can be handled on a case by case basis. That protecting hypothetical gullible crypto enthusiasts at the expense of the entire industry and putting up huge legal barriers to entry is the wrong move.
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- xorcist 9y agoEvery one of these scams that have imploded, including the DAO itself, have had participants crying out for interventions. That should speak volumes about the amount of consent involved (and indeed the sophistication).
- Jabanga 9y ago
- Cshelton 9y agoThere was no doubt in my mind this was coming. Still waiting for them to come down hard on a company as an example. In this article it says they won't bring charges in this instance, meaning The DAO, however; if you have taken part in an unregistered sale of securities recently as a U.S. "company", you may want to seek legal advice on how to proceed right away. Maybe a deal can be made with the SEC for "ICO"'s that have occurred recently. Or you may be advised to leave the U.S., which may be the best option.
- memossy 9y agoThe main reason they didn't come down hard on the DAO is because of the hard fork..
- JumpCrisscross 9y ago> Or you may be advised to leave the U.S., which may be the best option If you were in the United States and/or sold securities to an American investor, the deed is done. Skipping town to avoid the SEC only serves to turn your potential civil liability into a foreign fugitive case.
- kensai 9y agoLook at the beating the market gets right now (as of 13 minutes after the news were posted). https://coinmarketcap.com https://coinmarketcap.com
- lgierth 9y agoIt looks more like the various coins have been going down all day today?
- Cshelton 9y agoTo be fair, the market was down around that much today already. The SEC article has had little to no effect as of yet. I also don't see it having much effect at all as all of those tokens are traded in secondary markets.
- jandrese 9y agoOr everybody who mattered already knew what was going to happen from their insider sources and were trading in advance of the announcement.
- Cshelton 9y agoI would consider holders of most tokens to be "dumb money"... they did not have an inside source to the SEC release...
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- cjbprime 9y agoIs selling an unregistered security on secondary markets more legal, or just less likely to be noticed?
- jhildings 9y agoNot really, this has nothing to do with ICOs but Bitcoin fork drama and BCC
- 9y ago
- m777z 9y agoI'm not terribly happy with the decision, though I can't say I'm surprised. I enjoy the drama of the Wild West that is Ethereum and the rest of the cryptocurrency ecosystem. Minimal regulation encourages innovation, while regulated markets can exist for people who want stability and certain guarantees to prevent fraud (or at least make it difficult). I wonder what would happen if financial regulations became more "optional". I.e. the SEC exists to provide guarantees if a given company wanted to get the SEC's seal of approval but does not enforce most regulations on entities that don't seek SEC approval (and thus investors would know such entities are riskier). I suppose eventually a "too big to fail" company would avoid regulation and consequently go under, and that would be the end of that.
- DennisP 9y agoIt might not change the overall ecosystem that much. Many companies doing ICOs are already locating themselves in friendlier jurisdictions, and making some effort to block U.S. contributors.
- isubkhankulov 9y agosecurities laws apply based on the investor's jurisdiction
- brucephillips 9y agoI imagine blocking U.S. contributors would significantly affect the ecosystem.
- DennisP 9y agoThey're already doing it. It's near impossible to do it effectively, if the contributor is comfortable interacting directly with smart contracts, but they're doing things like geoblocking their websites, making you click a box saying you're not in the U.S., etc.
- zazpowered 9y agoMost ICOs already try to block US contributors but it's usually only based on IP which can easily be gamed
- hellbanner 9y agoIn another thread commenters speculated that ICO hacks were coming from inside jobs.. does this new SEC report change how the government would handle that? Is fraud of securities different from fraud over imaginary coins now?
- isubkhankulov 9y agosecurities are property and property theft is a crime. even before this ruling, coins were treated as property.
- vkou 9y agoFraud is fraud, regardless of whether or not you're stealing securities, magical internet money, or baseball cards.
- ceejayoz 9y agoCertain types of fraud are still likely to garner more attention, particularly when there's a dedicated law enforcement organization tasked with it.
- hellbanner 9y agoAaand front page of HN, the very next day: https://news.ycombinator.com/item?id=14861925 https://news.ycombinator.com/item?id=14861925
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- wmf 9y agoThe SEC has already prosecuted a few Bitcoin-related fraud cases even though they don't regulate Bitcoin itself.
- EGreg 9y agoThis is a serious question to the lawyers on HN. In your non-advice way, can you tell us your opinion on the following? So given that now we have a serious precedent for considering all ICOs aa securities, what are the steps a company needs to take to make sure their ICO is legal under US LAW?? 1. Does it need to register the ICO somehow? If so, how exactly are the securities registered? 2.!What regulations apply now? Do the 1933 blue sky laws apply and Regulation D and the usual exceptions - including JOBS act crowdfunding provisions - apply? 3. Can anyone buy the ICO or does the company now need a private placement memorandum? 4. And even so, isn't the secondary market for the tokens constitute "transferring" of securities? What does a company need to make sure all that is legal, short of fulfilling all the reporting requirements of a Public company? Basically what happens now to all the ICOs done so far by companies like Brave? What are they going to do? Look at the title of this article and tell me - is it accurate? https://www.forbes.com/sites/laurashin/2017/05/18/want-to-hold-an-ico-coinlist-makes-it-easy-and-legal/amp/ https://www.forbes.com/sites/laurashin/2017/05/18/want-to-ho...
- iMuzz 9y ago> The SEC's Report of Investigation found that tokens offered and sold by a "virtual" organization known as "The DAO" were securities and therefore subject to the federal securities laws. The Report confirms that issuers of distributed ledger or blockchain technology-based securities must register offers and sales of such securities unless a valid exemption applies. > The agency has decided not to bring charges in this instance, or make findings of violations in the Report So they aren't going to bring charged to the creators of The Dao. What about the other dApp's based in the US that have already ICO'd (BAT, Augur etc.)? Also, if a company successfully files/gets approved by the SEC, does that mean that NASDAQ can now list tokens? AFAIK the SEC only cares about securities sold in the U.S. I'd imagine this incentivizes a lot of Token issuers to leave the U.S?
- Cshelton 9y agoThe SEC cares about U.S. citizens. If you marketed and/or sold to a U.S. investor, you are now under the SEC's jurisdiction. There are countries you can go to of course, but not many left. Grand Caymans... Switzerland is no longer a safe haven from U.S. jurisdiction either.
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- JumpCrisscross 9y ago> The SEC cares about U.S. citizens Residents. Noncitizen American residents are protected by the SEC. Though even that is a leaky boundary [1]. [1] http://clsbluesky.law.columbia.edu/2017/04/11/proskauer-rose-discusses-the-secs-extraterritorial-reach/ http://clsbluesky.law.columbia.edu/2017/04/11/proskauer-rose... Disclaimer: I am not a lawyer and this is not legal advice. Do not take legal advice from my Internet comments.
- rdlecler1 9y agoAnyone care to speculate on what this will do to ether/bitcoin values? Does this concentrate interest in the existing players?
- Fej 9y agoValue is going to dip. They are speculative. Investments. The big supporters of cryptocurrencies were under the delusion that they were exempt from financial regulations. Today the SEC reminded them that securities law applies to everyone. This makes it significantly harder to invest. Investors getting out will cause a drop in the coins' value.
- rdlecler1 9y agoIronically ether & bitcoin started dropping last night around midnight. Makes me wonder if any SEC folks were involved in insider trading. Anyone care to speculate on what this will do to ether/bitcoin values? Does this concentrate interest in the existing players or does it hurt demand and speculation therefore depressing prices?
- aaron-lebo 9y agoNothing especially strange in the price data, just the usual ups and downs. There's a downward trend as of about 14 hours ago, but good luck pinning that on insider trading. Woo $222 to $215. That could happen any day. These charts seem to be a Rorschach test, but: https://coinmarketcap.com/currencies/ethereum/ https://coinmarketcap.com/currencies/ethereum/ As far as what this will do, your best bet is to stock up on fortune cookies and astrology mags because they're probably about as informed as anything else on the matter. Preferably cookies, because at least you can eat those.
- m1k32h07 9y agoWhy isn't ETH crashing right now?
- cloakandswagger 9y agoBecause decentralized organizations like the DAO are only one of a multitude of different things you can implement with Ethereum.
- memossy 9y agoSEC clarifying some guidelines makes it easier to codify proper token sales like the upcoming filecoin one done by coinlist. Scam tokens were never going to be the big driver of Ethereum success, official acknowledgement of it as a valid platform was. This goes another step in that direction, particularly as it avoids clamping down on cryptocurrencies like Ethereum or Litecoin, which the IRS has deemed as property. Initiatives like the Ethereum Enterprise Alliance are also contributing, so the more respectable it appears, the higher the price is likely to go due to higher expected future utility value.
- mifeng 9y agoIf you read the actual report (https://www.sec.gov/litigation/investreport/34-81207.pdf https://www.sec.gov/litigation/investreport/34-81207.pdf), you may notice that the SEC is careful to apply securities law DAO specifically. In particular, they apply the security test: "did investors invest money with a reasonable expectation of profits derived from managerial efforts of others?" Since DAO was a wisdom-of-crowd VC fund, the answer is a clear YES. On the other hand, they are careful to say that other token sales MAY be securities but will be treated based on their specific facts and circumstances. My takeaway is that this doesn't change anything. The SEC is proceeding cautiously: applying securities law in clear-cut cases, "studying the effects" generally. It's also not a bad thing to comply with securities regulation. FileCoin is doing quite well selling only to accredited investors on CoinList.
- sillysaurus3 9y agoIs it still ok to use ICOs as as glorified Patreon or Kickstarter without worrying you'll run afoul of the securities laws? As long as no one is expecting profits from the tokens they buy from you. Where it gets strange is if your tokens are picked up by an exchange. What happens if someone buys your tokens with the expectation that they can sell them to someone else? Then the price of your tokens might rise, and they've made a profit. Does that count as expectation of profit?
- memossy 9y agoThey defined profits broadly in the scope of the release. Secondary sales have different rules.
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- 9y ago
- joshuaxls 9y agoThis is why we've built CoinList: https://coinlist.co https://coinlist.co We have seven years of experience running regulatory-compliant online fundraisings via AngelList. Now we're bringing that knowledge to ICOs.
- will_brown 9y agoWhen DAO originally made the HN Front page I made this comment [1] calling DAO snake oil and suggested people could lawfully operate their own "DAO" as an Investment Club LLC, specifically Investment Clubs can be exempt from securities laws [2] subject to the restrictions I outlined in my prior comment such as a limit of "100 tokens" (i.e. 100 members to make future investments). [1] https://news.ycombinator.com/item?id=11707497 https://news.ycombinator.com/item?id=11707497 [2] https://www.sec.gov/reportspubs/investor-publications/investorpubsinvclubhtm.html https://www.sec.gov/reportspubs/investor-publications/invest...
- Jabanga 9y agoIt's a decentralized and autonomous application. How could an autonomous application on the blockchain be an LLC?
- will_brown 9y agoI actually addressed this question a year and a half ago as well [1], where I defined the DAO as blockchain based Investment Club Software. In otherwords what you are calling the "autonomous application", that wouldn't be the LLC but the Software that manages the Investment Club LLC. Note: the Wikipedia article for "investment club software" that I originally linked to no longer appears to exist. [1] https://news.ycombinator.com/item?id=11711499 https://news.ycombinator.com/item?id=11711499
- Jabanga 9y agoSo it's the shareholders who are responsible for forming an LLC? How can they prevent non-members from becoming partners in the DAO, given the software is autonomous and has no permission controls?
- will_brown 9y agoFirst LLC's don't have "shareholders" the owners/equivalent of an LLC is a Member. The process would basically be as follows: Say you form an Investment Club LLC, you create a smart contract/ICO with up to 99 tokens, and purchasers of the ICO tokens become a "member" of the LLC. Thereafter, the Investment Club LLC members could create a smart contract/investment opportunity, but you would only be able to vote/invest if you are a token holder...you say there are no permission controls but this was exactly how the DAO was marketed to function, buy a Token for DAO and you could participate/vote on future DAO investment opportunities.
- kusmi 9y agoI don't understand exactly what this implies. If DAO is a C Corp, will it pay taxes on USD equivalent value of their coin holdings (150$ million going by the report?), or only on what they ultimately convert to USD? What if they use the coins to make purchases directly? If I own a C Corp, can I hide earnings in USD from being taxed by exchanging them for coins I make using some open source block chain?
- zallarak 9y agoI'm uncertain of how much value the SEC provides. Problems they fail to solve: * High brokerage fees * Poor-outcome annuities * Penny stock trading * Risky options trading Tokens are fraught with fraud, but the impetus for research is upon the individual. I fear that regulating this will stifle innovation with little benefit to end-consumers in terms of safety, because people will still get swindled out of their money by other legalized means.
- ilaksh 9y agoThe SEC should show that it protects everyone's rights and not just large firms with piles of cash to pay to them and to pay expensive lawyers. Otherwise we have to assume that this is largely about trying to tax things. The way they can do this is by making a real effort to update their technical, documentation, and regulatory programs. Is there a straightforward way to do an Edgar filing that doesn't require a bunch of training? Is there a web page that clearly lists the requirements for these types of securities in plain English? How much do the company registrations and filings actually cost? What is the basis for these costs? Because an ICO can be created at no cost. Are the excessive fees due to a lack of modernization or streamlining of the processes, or they simply bribes that line officials' pockets and protect the incumbent firms from poorly funded startups? In recent cases, how would fees and filings have actually protected anyone? Does the SEC have technical staff or software capable of evaluating Ethereum contracts for validity or safety? If not, how does their regulatory effort provide any benefit, except as an opportunity for them to collect a type of tax and make it harder for startups to compete with large firms where SEC officials have friends working?
- taysic 9y agoAre you genuinely asking what the value of the SEC is? I generally am pro low taxes but the crypto environment right now is so flush with scams that it explains itself
- siliconviking 9y agoPhilosopjically, why not let people make their own decisions?
- rficcaglia 9y agophilosophically, because the working "mass" (to quote Alexander Hamilton in the Federalist Papers, 68, I believe) would not have the leisure time to be informed enough to make sensible decisions. i came from a blue collar family where everyone worked 2 FT jobs to make ends meet and making savvy investment decisions was hardly possible. ignoring the lack of financial education and experience, a good sales scam promising you riches after your 16 hour workday with 4 hours of household chores still to do, kids screaming, and no hope in sight, can be highly effective. that said, look where the electoral college got us!! so philosophy and reality are different. in principle i agree, let people decide. in reality that leads to housing bubbles, global warming, donald trump...
- JohnJamesRambo 9y agoThis is wonderful news. The ICO world was a disgusting mess of ignorance and pyramid schemes.
- bitmapbrother 9y agoI was watching a YouTube video of a popular Ethereum blogger and he mentioned that one of his acquaintances was charged with tax evasion for not reporting his cryptocurrency income. This person thought he could just pay what he owed and be done with it. Unfortunately, it doesn't work like that. Once they catch you for tax evasion you'll pay whatever you owe in addition to facing tax evasion charges.
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- m1k32h07 9y agoWhy isn't etherium's price crashing right now? https://ethereumprice.org/ https://ethereumprice.org/
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- matthewbauer 9y agoThe sad thing is markets aren't rational at the end of the day.
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- williamle8300 9y agoYou can't change the thirst for freedom inborne in every man via laws. This will only make cryptocurrency slip more easily through their fingers and galvanize efforts to avoid oversight.
- prgmatic 9y agoWhat does this mean if you've bought or sold cryptocurrency within 2017?
- _delirium 9y agoThe only people directly affected are people who have offered an "initial coin offering" (ICO) of pre-mined coins from a new cryptocurrency, in the U.S., without registering the offering with the SEC. This ruling is looking at ICOs specifically, not just anyone who has bought or sold cryptocurrency.
- mrmcd 9y agoThe amount of delusion and denial in this thread is kind of hilarious. US securities laws aren't suspended because you sprinkled a bunch of magic libertarian crypto dust on everything.
- memossy 9y agoAs a hedge fund manager who just added a token to one of our projects (to help create a resource to combat extremism naturally), I wrote up my thoughts here: https://medium.com/ananas-blog/sec-on-icos-securities-are-securities-but-928d9862389f https://medium.com/ananas-blog/sec-on-icos-securities-are-se... A general rule of tokens is that if they promise a profit they are a scam and if they promise a share of profits a security. The closer they are to API keys the better in terms of non-securitability. It is likely that the token usage will gradually bifurcate between those that are "property" and scarce digital assets like Bitcoin (or rarepepes) and those that are API keys. For our charitable project we've tried to incorporate elements of both to create an interesting token economy to build a useful resource. Hopefully there will be more of these attempts, both registered as securities and that fall outside of this classification.
- kevinr 9y agoI dunno what y'all's problem is, the last ruling like this (from the IRS) meant I got to write $200 in Bitcoin losses off on my taxes.
- sauronlord 9y agoSEC and the financial world are being blindsided to what's happening right now. This is truly disruptive and no one knows what the fuck is going on. Crypto folks played it perfectly collectively over the past 4 years. It's now too late to squash the decentralization of trust and value transfer. Just a couple more years and governments, banks, insurance, and legal industries will find themselves in the same unfortunate position as taxi companies with Uber or the music industry with bittorrent. There I said it. Something people don't want to say for fear that we will "ruin it". But it's too late. I already prefer dealing in BTC and ETH and will not need to convert to fiat very often in about 5-10 years out.
- bluesign 9y agoSo to be security, - must have investment, - profit expectation, - this profit must come from efforts of others (management) - limited or none voting right So what is preventing digital currencies classified at securities?
- throwaway86328 9y agoIsn't it also illegal to buy unlicensed securities? Couldn't the SEC also prosecute individuals who simply bought into these as unaccredited investors? (I am not a lawyer)