Big data is the science that search and create ways to analyze and extract information from, data pools that are too large or very complex to be dealt with the traditional data-processing application software
I am very pleased to be able to join you, not least because of the theme of this year’s conference: Driving Recovery and Growth through Data Analytics. This theme brings together 2 issues that are very close to my heart – the recovery of the Australian economy from the pandemic and the critical role that investment in IT and data can play in sustaining that recovery. So I congratulate you on your choice of topic and I look forward to hearing your ideas.
The challenges facing us all are large. At the Reserve Bank, we are seeking to support the economic recovery and a stronger labour market that is consistent with achieving the inflation target. And most of you at this conference are seeking to find new ways of using data to help businesses and organisations innovate, compete and succeed.
These challenges are complementary. We will each be more successful if the other is successful. A stronger economy will provide businesses with the confidence and the resources to make the investments that are needed for our future. And conversely, our economy will be stronger because of your work, since the best decisions are those based on data, evidence and analysis. So our causes are linked.
I will come back to this idea, but first a few words about the economic recovery.
As a nation, we have responded very well to the pandemic. Australians have pulled together and been prepared to do what is necessary to contain the virus and support one another. Businesses have adapted quickly and innovated, with many making more progress on the digital front in a matter of months than they would have made in years. Governments also responded quickly and decisively, with extensive income support, increased spending on infrastructure and a large wage subsidy program. And monetary policy has also helped, reducing the cost of borrowing to historically low levels and supporting the supply of credit.
The result has been a quicker and stronger economic recovery than was expected. In the December quarter, GDP increased by 3.1 per cent and we are now within striking distance of the pre-pandemic level of GDP. The number of people in jobs has also almost returned to the level before the pandemic. Looking across the range of indicators, Australia is doing much better than most other advanced economies.
This, however, does not hide the fact that we still have a long way to go. The unemployment rate of 6.4 per cent is too high and the economy is operating well short of its capacity. Inflation and wages growth are also both lower than we would like. While we are expecting further progress to be made towards full employment and the inflation target, it is going to take some time before we reach our goals.
One piece of the recovery that is yet to click into gear is business investment. Understandably, last year many firms deferred their investment plans and sought to reduce risk on their balance sheets. Late in the year there was a welcome pick-up in investment in machinery and equipment, but there is still a long way to go to get back to the level of investment before the pandemic, which itself was low by historical standards. If we are to have a strong and durable recovery, it is important that the recovery in business investment continues and broadens.
Looking across the economy, there are investment needs and opportunities in many areas. The one I would like to focus on today is investment in IT, digitisation and data science. Investment in these areas is critical to lifting our nation’s productive capacity.
In many ways data is the new oil of the 21st century. Investing in data and our digital capability are critical to our future prosperity. These investments allow better decision making and a faster response to the changes in our economy and society. These investments are also crucial to organisations delivering the more personalised goods and services that many people are seeking.
There are opportunities for digital innovation in every sector of our economy. Almost every organisation needs a strong digital capability to perform well, to innovate and lift their productivity. Technology and data analysis also hold the keys to solving many of the great challenges of our times, including controlling the pandemic, dealing with climate change and responding to increasing cyber threats. This all means that the discussions you are having at this conference are really important.
If, as a nation, we are to capitalise on your work and the growing opportunities, we need to keep investing in the skills and knowledge of our people. This conference is a good example of this investment. Developing a strong digital workforce with skills in areas like predictive analytics, machine learning and artificial intelligence is just as important as investing in the hardware and software needed to support the digital economy. As part of our journey we also need to think about how our organisations function and make decisions, so that our people can work in more agile and flexible ways as they grapple with complex problems. It is by investing in both physical and human capital that we can boost our productivity, create employment and drive Australia’s future prosperity.
The importance of investing in the digital economy has been recognised by our governments. The Australian Government has a strong focus on this and is making additional investments in skills and training, streamlining regulatory processes and strengthening the nation’s cyber security. The consumer data right, to give consumers greater access to and control over their data, will also help. This access has started with open banking, which will make it easier for Australians to switch between financial institutions and access financial products that better suit their needs. In time, Australians will benefit from this being extended to other areas.
At the RBA, we are also investing significantly in digital infrastructure and data. The importance of this to us is reflected in the decision to make ‘harnessing the power of data’ one of our internal strategic focus areas for the next few years.
We view data as a strategic asset, and are investing in the processes, technology and people to enhance the value we get from data. We have established an enterprise data office with responsibility for data management, for ensuring that our staff have the right skills and that we are using leading data technologies and methods in our analysis. This includes the use of machine learning and ‘big data’.
We are seeing the benefits from this focus on data in our analysis of the economy and financial system. For example, the Bank’s staff use loan-level large datasets from securitisations to better understand developments in the market for housing loans and use detailed settlement data to measure bond market liquidity. They also use machine learning techniques to extract measures of sentiment from news articles as an economic indicator. And during the pandemic, we have been able to access and analyse a broader range of data to obtain real-time readings of economic conditions in a way that wasn’t possible in the past.
At the RBA, we also see the power of new technologies and data in our central banking operations. The RBA has played a significant role in building the New Payments Platform (NPP), a critical piece of national infrastructure, which enables us all to make fast payments on a 24/7 basis. As a provider of banking services to the Australian Government, the RBA has been working with its government banking clients as they modernise their payment systems using the NPP. As an example, Services Australia now routinely uses the NPP to make emergency welfare and disaster relief payments in real time to Australians in need. Payment messages through the NPP can also carry richer data, opening up opportunities for more efficient business processes and new digital services in the future. As an example of this, NPP will be able to support the adoption of e-invoicing, which will lower the cost of doing business.
Another example where technology and data are opening up new possibilities is in the area of digital currencies. The RBA is conducting research on the technologies and policy implications of a potential wholesale central bank digital currency. This could use distributed ledger technology to support the settlement of transactions in the interbank payment system. Some of this work is taking place in the RBA’s in-house Innovation Lab, where we are collaborating with external parties on a proof-of-concept. We look forward to sharing more details in due course.
The Bank and the Payments System Board are also strongly supportive of forms of digital identity that can be used in both the public and private sector. An effective system of digital identity is important in promoting competition, security and innovation in the digital economy. The Australian Government is also supporting digital identity services for conveniently and securely accessing government services online.
I would like to conclude by returning to the idea that the challenges facing the RBA and those of you attending this conference are complementary.
The RBA is doing what it can to support the recovery from the pandemic and will maintain that support until we have achieved our goals for full employment and inflation. A strong economy will make for a more conducive environment for investments in data and technology. Similarly, your investments in data, technology and human capital will help make the economy stronger and more dynamic. We need these investments to develop the industries of the future and to equip Australians with the skills needed for that future. Australia needs your ideas, your ingenuity and your energy so that organisations across our country can seize the opportunities that will help deliver our future prosperity.
I wish you the best for the conference and look forward to your insights on how we can best drive the recovery and growth through investment in data analytics.
The Monetary Authority of Singapore (MAS) today announced the successful conclusion of the first phase of the Veritas initiative which saw the development of the fairness assessment methodology in credit risk scoring and customer marketing.  These are the first two use cases to help financial institutions validate the fairness of their Artificial Intelligence and Data Analytics (AIDA) solutions according to the Fairness, Ethics, Accountability and Transparency (FEAT) principles. The Veritas Consortium,  comprising MAS and industry partners, also published whitepapers on the fairness assessment methodology and the open source code of these two use cases.
2 The two whitepapers detailed a five-part methodology to assess the application of the FEAT fairness principles in the two use cases. The methodology addresses the implementation challenges in the responsible use of AIDA, and provides an actionable approach for financial institutions to validate their AIDA solutions. The open source code of the two use cases has been made publicly available to help the wider AIDA community in adopting the fairness assessment methodology and spur industry development. These will benefit customers by improving the fairness of financial services delivered by AIDA systems.
3 This development marks a milestone for the Veritas initiative and paves the way for the next phase of work. Phase Two will look into developing the Ethics, Accountability and Transparency assessment methodology for the two use cases in Phase One. Phase Two will also include use cases for the insurance industry.
4 For the insurance use cases, the Veritas consortium will focus on the fairness assessment methodology for predictive underwriting, and develop the ethics and accountability assessment methodology for fraud detection:
Fairness is a key consideration in the course of underwriting for insurance companies. The Veritas consortium will focus on enhancing the fairness assessment methodology applicable to the predictive underwriting for life and health insurance products.
Fraud detection and identification of suspicious customer claims are key activities in claims processing by insurance companies. Traditional fraud detection is resource intensive and insurance companies can employ AIDA to enhance their fraud detection capabilities and efficiency.
5 Sopnendu Mohanty, Chief FinTech Officer, MAS, said, “Veritas Phase One enabled us to look into the fairness of artificial intelligence and data analytics systems in a more granular manner. It will improve the trustworthiness of AIDA significantly. We will continue our Veritas journey and aim to establish Singapore as a responsible artificial intelligence hub for the financial services in the near future.”
 Veritas, which is a part of Singapore’s National AI Strategy, aims to provide financial institutions with a verifiable way to incorporate the FEAT (Fairness, Ethics, Accountability and Transparency) principles into their AIDA solutions. Please see MAS’ media release on 13 November 2019 for details on Veritas, media release on 12 November 2018 on FEAT and media release on 28 May 2020 for details on the first phase of the Veritas initiative.
 The Veritas consortium has 25 members. Please refer to media release on 28 May 2020 for the full list of members for Phase One of Veritas and the annex for the full list of members for Phase Two of Veritas.
The current global happenings have transformed the long-standing business opportunity of digital transformation into necessity with cognitive technologies gaining increasing prominence. This however doesn’t mean that the challenges of emerging technologies have disappeared. Lack of trust and quality of data, as well as the dearth of adequate tools and talent still remain. In this fast-paced and challenging environment, leaders are put under extreme pressure with their urgent decisions resulting in long-lasting impacts. From the perspectives of AI experts and leaders, this event puts the spotlight on AI in 2021 – what we can expect from this technology in relation to our industries, businesses, societies and economies, and how leaders can navigate through the changes.
Event Speakers A handful of carefully selected global AI leaders and experts from different disciplinaries covering our subject from the broadest and deepest views possible.
Event Audience Our CognitiveVirtual online events usually gain over 1000 participants from over 80 countries. With our topic focusing on AI from the perspectives of business and society, we expect high interest in our event. Who would not want to know from the experts what the future holds for us after all?
Date & Time
Thursday, 17 December 2020 16:00 – 19:00 CEST 10:00 – 13:00 EDT
All sessions are held in English
By invitation and publicly available registration links
What to expect… and what not to This is a strictly non-sales event. Therefore, you can expect only content-focused panel discussions and keynotes, giving transparent insights into the global AI ecosystem. No BS Just Content.
Execution algorithms (EAs) – designed to buy or sell foreign exchange according to a set of user instructions – have contributed positively to FX market functioning.
As EAs change the way market participants access the FX market and how trades are executed, they also give rise to new challenges.
Central banks and market participants must have access to the necessary data, skills and tools to allow them to assess the opportunities and risks of evolving markets.
Execution algorithms – designed to buy or sell a predefined amount of foreign exchange according to a set of user instructions – have seen a rise in usage amid an increasingly decentralised and fragmented trading environment according to a report published today by the BIS Markets Committee.
The report examines the drivers and implications of the increase in EA usage in FX markets. It draws on a unique survey of 70 sophisticated market participants globally and extensive industry-wide outreach, and provides distinctive perspectives on the use of EAs, including by central banks.
Prepared by a study group led by Andréa M Maechler, Member of the Governing Board of the Swiss National Bank, it concludes that while EAs improve market functioning, they also create new challenges. In particular, they transfer execution risk from dealers to end users; contribute to changing liquidity dynamics and the underlying market structure; and raise the bar for market participants in accessing the data, skills and tools required to navigate this market successfully.
“The report provides an insightful stocktake of the growing use of FX execution algorithms by a broad range of participants in FX markets, and highlights both the benefits and the potential risks of such execution algorithms. This will help market participants gain a deeper understanding of such elements, which are becoming increasingly important in FX markets,” said Jacqueline Loh, Deputy Managing Director, Monetary Authority of Singapore, and Chair of the Markets Committee.
EAs may also create self-reinforcing loops and exacerbate sharp price moves, although initial observations from the Covid-19 pandemic suggest that these risks may be less acute than expected. Still, further research is needed.
“While the focus of the report is on the FX market, many of the findings are also of broader relevance to other fast-paced electronic markets experiencing similar trends. As those markets continue to evolve rapidly, access to high-quality data, novel skills and adequate tools becomes key in this context,” said Ms Maechler.
These issues require broad-based collaboration between the official and the private sectors. The Global Foreign Exchange Committee (GFXC) has already established workstreams on algorithmic trading and disclosures to examine them in detail.
William Hinman Director, Division of Corporation Finance
San Francisco, CA
June 14, 2018
Remarks at the Yahoo Finance All Markets Summit: Crypto
Thank you Andy. I am pleased to be here today. This event provides a great opportunity to address a topic that is the subject of considerable debate in the press and in the crypto-community – whether a digital asset offered as a security can, over time, become something other than a security.
To start, we should frame the question differently and focus not on the digital asset itself, but on the circumstances surrounding the digital asset and the manner in which it is sold. To that end, a better line of inquiry is: “Can a digital asset that was originally offered in a securities offering ever be later sold in a manner that does not constitute an offering of a security?” In cases where the digital asset represents a set of rights that gives the holder a financial interest in an enterprise, the answer is likely “no.” In these cases, calling the transaction an initial coin offering, or “ICO,” or a sale of a “token,” will not take it out of the purview of the U.S. securities laws.
But what about cases where there is no longer any central enterprise being invested in or where the digital asset is sold only to be used to purchase a good or service available through the network on which it was created? I believe in these cases the answer is a qualified “yes.” I would like to share my thinking with you today about the circumstances under which that could occur.
Before I turn to the securities law analysis, let me share what I believe may be most exciting about distributed ledger technology – that is, the potential to share information, transfer value, and record transactions in a decentralized digital environment. Potential applications include supply chain management, intellectual property rights licensing, stock ownership transfers and countless others. There is real value in creating applications that can be accessed and executed electronically with a public, immutable record and without the need for a trusted third party to verify transactions. Some people believe that this technology will transform e-commerce as we know it. There is excitement and a great deal of speculative interest around this new technology. Unfortunately, there also are cases of fraud. In many regards, it is still “early days.”
But I am not here to discuss the promise of technology – there are many in attendance and speaking here today that can do a much better job of that. I would like to focus on the application of the federal securities laws to digital asset transactions – that is how tokens and coins are being issued, distributed and sold. While perhaps a bit dryer than the promise of the blockchain, this topic is critical to the broader acceptance and use of these novel instruments.
I will begin by describing what I often see. Promoters, in order to raise money to develop networks on which digital assets will operate, often sell the tokens or coins rather than sell shares, issue notes or obtain bank financing. But, in many cases, the economic substance is the same as a conventional securities offering. Funds are raised with the expectation that the promoters will build their system and investors can earn a return on the instrument – usually by selling their tokens in the secondary market once the promoters create something of value with the proceeds and the value of the digital enterprise increases.
When we see that kind of economic transaction, it is easy to apply the Supreme Court’s “investment contract” test first announced in SEC v. Howey. That test requires an investment of money in a common enterprise with an expectation of profit derived from the efforts of others. And it is important to reflect on the facts of Howey. A hotel operator sold interests in a citrus grove to its guests and claimed it was selling real estate, not securities. While the transaction was recorded as a real estate sale, it also included a service contract to cultivate and harvest the oranges. The purchasers could have arranged to service the grove themselves but, in fact, most were passive, relying on the efforts of Howey-in-the-Hills Service, Inc. for a return. In articulating the test for an investment contract, the Supreme Court stressed: “Form [is] disregarded for substance and the emphasis [is] placed upon economic reality.” So the purported real estate purchase was found to be an investment contract – an investment in orange groves was in these circumstances an investment in a security.
Just as in the Howey case, tokens and coins are often touted as assets that have a use in their own right, coupled with a promise that the assets will be cultivated in a way that will cause them to grow in value, to be sold later at a profit. And, as in Howey – where interests in the groves were sold to hotel guests, not farmers – tokens and coins typically are sold to a wide audience rather than to persons who are likely to use them on the network.
In the ICOs I have seen, overwhelmingly, promoters tout their ability to create an innovative application of blockchain technology. Like in Howey, the investors are passive. Marketing efforts are rarely narrowly targeted to token users. And typically at the outset, the business model and very viability of the application is still uncertain. The purchaser usually has no choice but to rely on the efforts of the promoter to build the network and make the enterprise a success. At that stage, the purchase of a token looks a lot like a bet on the success of the enterprise and not the purchase of something used to exchange for goods or services on the network.
As an aside, you might ask, given that these token sales often look like securities offerings, why are the promoters choosing to package the investment as a coin or token offering? This is an especially good question if the network on which the token or coin will function is not yet operational. I think there can be a number of reasons. For a while, some believed such labeling might, by itself, remove the transaction from the securities laws. I think people now realize labeling an investment opportunity as a coin or token does not achieve that result. Second, this labeling might have been used to bring some marketing “sizzle” to the enterprise. That might still work to some extent, but the track record of ICOs is still being sorted out and some of that sizzle may now be more of a potential warning flare for investors.
Some may be attracted to a blockchain-mediated crowdfunding process. Digital assets can represent an efficient way to reach a global audience where initial purchasers have a stake in the success of the network and become part of a network where their participation adds value beyond their investment contributions. The digital assets are then exchanged – for some, to help find the market price for the new application; for others, to speculate on the venture. As I will discuss, whether a transaction in a coin or token on the secondary market amounts to an offer or sale of a security requires a careful and fact-sensitive legal analysis.
I believe some industry participants are beginning to realize that, in some circumstances, it might be easier to start a blockchain-based enterprise in a more conventional way. In other words, conduct the initial funding through a registered or exempt equity or debt offering and, once the network is up and running, distribute or offer blockchain-based tokens or coins to participants who need the functionality the network and the digital assets offer. This allows the tokens or coins to be structured and offered in a way where it is evident that purchasers are not making an investment in the development of the enterprise.
Returning to the ICOs I am seeing, strictly speaking, the token – or coin or whatever the digital information packet is called – all by itself is not a security, just as the orange groves in Howey were not. Central to determining whether a security is being sold is how it is being sold and the reasonable expectations of purchasers. When someone buys a housing unit to live in, it is probably not a security. But under certain circumstances, the same asset can be offered and sold in a way that causes investors to have a reasonable expectation of profits based on the efforts of others. For example, if the housing unit is offered with a management contract or other services, it can be a security. Similarly, when a CD, exempt from being treated as a security under Section 3 of the Securities Act, is sold as a part of a program organized by a broker who offers retail investors promises of liquidity and the potential to profit from changes in interest rates, the Gary Plastic case teaches us that the instrument can be part of an investment contract that is a security.
The same reasoning applies to digital assets. The digital asset itself is simply code. But the way it is sold – as part of an investment; to non-users; by promoters to develop the enterprise – can be, and, in that context, most often is, a security – because it evidences an investment contract. And regulating these transactions as securities transactions makes sense. The impetus of the Securities Act is to remove the information asymmetry between promoters and investors. In a public distribution, the Securities Act prescribes the information investors need to make an informed investment decision, and the promoter is liable for material misstatements in the offering materials. These are important safeguards, and they are appropriate for most ICOs. The disclosures required under the federal securities laws nicely complement the Howey investment contract element about the efforts of others. As an investor, the success of the enterprise – and the ability to realize a profit on the investment – turns on the efforts of the third party. So learning material information about the third party – its background, financing, plans, financial stake and so forth – is a prerequisite to making an informed investment decision. Without a regulatory framework that promotes disclosure of what the third party alone knows of these topics and the risks associated with the venture, investors will be uninformed and are at risk.
But this also points the way to when a digital asset transaction may no longer represent a security offering. If the network on which the token or coin is to function is sufficiently decentralized – where purchasers would no longer reasonably expect a person or group to carry out essential managerial or entrepreneurial efforts – the assets may not represent an investment contract. Moreover, when the efforts of the third party are no longer a key factor for determining the enterprise’s success, material information asymmetries recede. As a network becomes truly decentralized, the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult, and less meaningful.
And so, when I look at Bitcoin today, I do not see a central third party whose efforts are a key determining factor in the enterprise. The network on which Bitcoin functions is operational and appears to have been decentralized for some time, perhaps from inception. Applying the disclosure regime of the federal securities laws to the offer and resale of Bitcoin would seem to add little value. And putting aside the fundraising that accompanied the creation of Ether, based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions. And, as with Bitcoin, applying the disclosure regime of the federal securities laws to current transactions in Ether would seem to add little value. Over time, there may be other sufficiently decentralized networks and systems where regulating the tokens or coins that function on them as securities may not be required. And of course there will continue to be systems that rely on central actors whose efforts are a key to the success of the enterprise. In those cases, application of the securities laws protects the investors who purchase the tokens or coins.
I would like to emphasize that the analysis of whether something is a security is not static and does not strictly inhere to the instrument. Even digital assets with utility that function solely as a means of exchange in a decentralized network could be packaged and sold as an investment strategy that can be a security. If a promoter were to place Bitcoin in a fund or trust and sell interests, it would create a new security. Similarly, investment contracts can be made out of virtually any asset (including virtual assets), provided the investor is reasonably expecting profits from the promoter’s efforts.
Let me emphasize an earlier point: simply labeling a digital asset a “utility token” does not turn the asset into something that is not a security. I recognize that the Supreme Court has acknowledged that if someone is purchasing an asset for consumption only, it is likely not a security. But, the economic substance of the transaction always determines the legal analysis, not the labels. The oranges in Howey had utility. Or in my favorite example, the Commission warned in the late 1960s about investment contracts sold in the form of whisky warehouse receipts.Promoters sold the receipts to U.S. investors to finance the aging and blending processes of Scotch whisky. The whisky was real – and, for some, had exquisite utility. But Howey was not selling oranges and the warehouse receipts promoters were not selling whisky for consumption. They were selling investments, and the purchasers were expecting a return from the promoters’ efforts.
Promoters and other market participants need to understand whether transactions in a particular digital asset involve the sale of a security. We are happy to help promoters and their counsel work through these issues. We stand prepared to provide more formal interpretive or no-action guidance about the proper characterization of a digital asset in a proposed use. In addition, we recognize that there are numerous implications under the federal securities laws of a particular asset being considered a security. For example, our Divisions of Trading and Markets and Investment Management are focused on such issues as broker-dealer, exchange and fund registration, as well as matters of market manipulation, custody and valuation. We understand that market participants are working to make their services compliant with the existing regulatory framework, and we are happy to continue our engagement in this process.
What are some of the factors to consider in assessing whether a digital asset is offered as an investment contract and is thus a security? Primarily, consider whether a third party – be it a person, entity or coordinated group of actors – drives the expectation of a return. That question will always depend on the particular facts and circumstances, and this list is illustrative, not exhaustive:
Is there a person or group that has sponsored or promoted the creation and sale of the digital asset, the efforts of whom play a significant role in the development and maintenance of the asset and its potential increase in value?
Has this person or group retained a stake or other interest in the digital asset such that it would be motivated to expend efforts to cause an increase in value in the digital asset? Would purchasers reasonably believe such efforts will be undertaken and may result in a return on their investment in the digital asset?
Has the promoter raised an amount of funds in excess of what may be needed to establish a functional network, and, if so, has it indicated how those funds may be used to support the value of the tokens or to increase the value of the enterprise? Does the promoter continue to expend funds from proceeds or operations to enhance the functionality and/or value of the system within which the tokens operate?
Are purchasers “investing,” that is seeking a return? In that regard, is the instrument marketed and sold to the general public instead of to potential users of the network for a price that reasonably correlates with the market value of the good or service in the network?
Does application of the Securities Act protections make sense? Is there a person or entity others are relying on that plays a key role in the profit-making of the enterprise such that disclosure of their activities and plans would be important to investors? Do informational asymmetries exist between the promoters and potential purchasers/investors in the digital asset?
Do persons or entities other than the promoter exercise governance rights or meaningful influence?
While these factors are important in analyzing the role of any third party, there are contractual or technical ways to structure digital assets so they function more like a consumer item and less like a security. Again, we would look to the economic substance of the transaction, but promoters and their counsels should consider these, and other, possible features. This list is not intended to be exhaustive and by no means do I believe each and every one of these factors needs to be present to establish a case that a token is not being offered as a security. This list is meant to prompt thinking by promoters and their counsel, and start the dialogue with the staff – it is not meant to be a list of all necessary factors in a legal analysis.
Is token creation commensurate with meeting the needs of users or, rather, with feeding speculation?
Are independent actors setting the price or is the promoter supporting the secondary market for the asset or otherwise influencing trading?
Is it clear that the primary motivation for purchasing the digital asset is for personal use or consumption, as compared to investment? Have purchasers made representations as to their consumptive, as opposed to their investment, intent? Are the tokens available in increments that correlate with a consumptive versus investment intent?
Are the tokens distributed in ways to meet users’ needs? For example, can the tokens be held or transferred only in amounts that correspond to a purchaser’s expected use? Are there built-in incentives that compel using the tokens promptly on the network, such as having the tokens degrade in value over time, or can the tokens be held for extended periods for investment?
Is the asset marketed and distributed to potential users or the general public?
Are the assets dispersed across a diverse user base or concentrated in the hands of a few that can exert influence over the application?
Is the application fully functioning or in early stages of development?
These are exciting legal times and I am pleased to be part of a process that can help promoters of this new technology and their counsel navigate and comply with the federal securities laws.
 The Securities and Exchange Commission disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This speech expresses the author’s views and does not necessarily reflect those of the Commission, the Commissioners or other members of the staff.
 Section 2(a)(1) of the Securities Act of 1933 (Securities Act) [15 U.S.C. § 77b(a)(1)] and Section 3(a)(10) of the Securities Exchange Act of 1934 (Exchange Act) [15 U.S.C. § 78c(a)(10)] define “security.” These definitions contain “slightly different formulations” of the term “security,” but the U.S. Supreme Court has “treated [them] as essentially identical in meaning.” SEC v. Edwards, 540 U.S. 389, 393 (2004).
 I am using the term “promoters” in a broad, generic sense. The important factor in the legal analysis is that there is a person or coordinated group (including “any unincorporated organization” see 5 U.S.C. § 77n(a)(4)) that is working actively to develop or guide the development of the infrastructure of the network. This person or group could be founders, sponsors, developers or “promoters” in the traditional sense. The presence of promoters in this context is important to distinguish from the circumstance where multiple, independent actors work on the network but no individual actor’s or coordinated group of actors’ efforts are essential efforts that affect the failure or success of the enterprise.
SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Depending on the features of any given instrument and the surrounding facts, it may also need to be evaluated as a possible security under the general definition of security – see footnote 2 – and the case law interpreting it.
 Secondary trading in digital assets by regulated entities may otherwise implicate the federal securities laws, as well as the Commodity Exchange Act. In addition, as SEC Chairman Jay Clayton has stated, regulated financial entities that allow for payment in cryptocurrencies, allow customers to purchase cryptocurrencies on margin or otherwise use cryptocurrencies to facilitate securities transactions should exercise caution, including ensuring that their cryptocurrency activities are not undermining their anti-money laundering and know-your-customer obligations. Statement on Cryptocurrencies and Initial Coin Offerings (Dec. 11, 2017). In addition, other laws and regulations, such as IRS regulations and state money servicing laws, may be implicated.
 The Supreme Court’s investment contract test “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Howey, 328 U.S. at 299.
 “[T]he name given to an instrument is not dispositive.” Forman, 421 U.S. at 850.
 SEC Rel. No. 33-5018 (Nov. 4, 1969); Investment in Interests in Whisky, SEC Rel. No. 33-5451 (Jan 7, 1974).
 For example, some have raised questions about the offering structure commonly referred to as a Simple Agreement for Future Tokens, or “SAFT.” Because the legal analysis must follow the economic realities of the particular facts of an offering, it may not be fruitful to debate a hypothetical structure in the abstract and nothing in these remarks is meant to opine on the legality or appropriateness of a SAFT. From the discussion in this speech, however, it is clear I believe a token once offered in a security offering can, depending on the circumstances, later be offered in a non-securities transaction. I expect that some, perhaps many, may not. I encourage anyone that has questions on a particular SAFT structure to consult with knowledgeable securities counsel or the staff.
Within the framework of increasing digitalisation, supervisors must attach considerable importance to new IT technologies such as cloud computing. In this context, it is important that in particular supervised entities in the financial sector, in addition to supervisors, have an understanding of the relevant technical innovations so that they can assess the impact of these technologies on business models, capital adequacy and authorisation requirements. This is the only way to ensure that the specific risks involved in the use of new IT-based developments are given appropriate consideration in supervisory and regulatory practice.
With cloud computing, IT resources are operated by an external service provider rather than within a company. Cloud services are usually operated via a web-based system that is used dynamically. This provides users with an opportunity to save costs and make use of the external service provider’s technical expertise, generating increased interest in cloud computing solutions among companies.
If supervised entities choose to use cloud computing, they must comply with the relevant supervisory requirements for outsourcing.
The first step towards specification of the regulatory framework for cloud computing was publication of the circular “Supervisory Requirements for IT in Financial Institutions” (Bankaufsichtliche Anforderungen an die IT – BAIT) (see BaFinJournal November 2017 and January 2018 (only available in German)). The BAIT specify that AT 9 of the Minimum Requirements for Risk Management (Mindestanforderungen an das Risikomanagement – MaRisk (only available in German)) also applies to the use of cloud services where this constitutes outsourcing of IT services. This means that supervised entities must comply with the supervisory requirements for outsourcing pursuant to section 25b of the German BankingAct (Kreditwesengesetz – KWG (only available in German)) in conjunction with AT 9 of the MaRisk to the extent necessary in each individual case.
In the coming months, BaFin will also publish a circular specifying its expectations towards insurance undertakings and pension funds. The Insurance Supervisory Requirements for IT(Versicherungsaufsichtlichen Anforderungen an die IT – VAIT) (only available in German) are currently the subject of a public consultation (see Expert article “IT security: BaFinspecifies IT requirements for the insurance sector”). Like the BAIT, this circular specifies that insurance undertakings must comply with the relevant applicable supervisory requirements for outsourcing when using cloud services.
BaFin will also evaluate the extent to which changes are needed to the existing supervisory requirements for outsourcing.
BaFin also plans to publish special guidance on the topic over the course of this year, particularly in light of discussions held with supervised entities, which have emphasised the need for a supervisory assessment of cloud computing. The guidance will provide the market with detailed information regarding the supervisory requirements related to the use of cloud services. With this additional step, BaFin intends to give companies greater certainty in applying the requirements under supervisory law.
Ahead of the publication of the guidance, this article addresses some key aspects of compliance with BaFin’s unrestricted rights of information and audit and abilities to monitor in addition to the unrestricted rights of information and audit of the supervised entities.
Requirements under supervisory law
Supervised entities that intend to use cloud services must assess in advance the extent to which compliance with the supervisory requirements for outsourcing is required.
If this assessment reveals that, in terms of risk, the planned outsourcing constitutes material outsourced activities and processes, then the credit institutions must comply with sections 25a and 25b of the KWG in conjunction with AT 9 number 7 and 8 of the MaRisk in the contractual arrangements. In such cases, insurance undertakings must comply with Article274(3) to (5) of the Delegated Regulation on Solvency II, section 32 of the German Insurance Supervision Act (Versicherungsaufsichtsgesetz – VAG (only available in German)) and margin no. 237 et seq. of the Minimum Requirements under Supervisory Law on the System of Governance of Insurance Undertakings (Mindestanforderungen an die Geschäftsorganisation von Versicherungsunternehmen – MaGO, see BaFinJournal February 2017 (only available in German)). These contain, in particular, regulations regarding suitable or unrestricted rights of information and audit.
Unrestricted rights of information and audit
Some supervised entities have submitted to BaFin drafts of outsourcing contracts involving the use of cloud services. These contracts related, for instance, to the use of computing power, storage and web applications.
The drafts submitted clearly show that in particular the rights of information and audit of BaFin and of the supervised entities have not been fully implemented in the contractual arrangements. However, it is particularly important that these rights are incorporated into the contracts since many providers of cloud solutions currently active on the financial market are domiciled in states outside of the European Union and European Economic Area. Even German providers of cloud services are not subject to BaFin’s supervision, meaning the supervisory laws are not directly applicable to them. It is therefore only possible to enforce the supervisory provisions on the basis of corresponding contractual rights.
Rights of information and audit of credit institutions
Ensuring unrestricted rights of information and audit vis-à-vis cloud service providers through contractual arrangements is of key importance, particularly with regard to the IT security of institutions.
Outsourced activities and processes that are not regarded as material in terms of risk are subject to the general requirements relating to a proper business organisation pursuant to section 25a (1) of the KWG (see AT 9 number 3 of the MaRisk). If the outsourced cloud services are regarded as material outsourced activities and processes, then the outsourcing agreement must grant both the internal audit function and external auditors appropriate and unrestricted rights of information and audit (AT 4.4.3 number 7 of the MaRisk). Only through unrestricted access to the cloud providers, for example to their business premises, data centres, servers and employees, can supervised entities properly exercise their rights of information and audit. On-site inspections in particular are therefore indispensable.
No restriction of rights
The effective exercise of the rights of information and audit should not be impeded or limited by contractual arrangements. Phased information and audit procedures constitute such a restriction and do not comply with the requirements of the MaRisk or the recommendations of the European Banking Authority (EBA). If performing the audit is made dependent on the concept of commercial reasonableness, then this is also generally regarded as a restriction. In addition, a contractual obligation to first rely on standardised audit reports made available by the cloud providers also constitutes an impermissible restriction of the rights of information and audit.
The use of management consoles may be suitable for certain controls, such as for monitoring compliance with service level agreements in ongoing operations. However, it cannot replace audits by the internal audit function, since management consoles only allow access to information made available by the cloud provider. The internal audit functions of institutions, however, must be able to obtain additional information that is necessary for the audit.
In the case of material outsourced activities and processes, BaFin also accepts pooled audits in accordance with BT 2.1 number 3 of the MaRisk in order to render audits more efficient both for institutions and also for cloud service providers that work for several institutions. In such cases, the audit activity may be performed by the internal audit function of one or more of the outsourcing institutions or by a third party commissioned by these institutions provided that the audit activity complies with the requirements in AT 4.4 and BT 2 of the MaRisk.
In addition, in accordance with BT 2.1 number 3 of the MaRisk, an institution’s audits may be performed by the internal audit function of the cloud provider or the institution may commission third parties to perform audits, provided that the audit activity conducted by the other auditors complies with the requirements in AT 4.4 and BT 2 of the MaRisk.
The outsourcing institution’s internal audit function must, however, regularly verify compliance with the specified requirements. The audit findings that are relevant to the institution must be passed on to the internal audit function of the outsourcing institution.
This also corresponds to the EBA recommendations and decreases the organisational burden for both institutions and the cloud service provider. Pooling the audit resources of institutions also addresses the concerns of cloud service providers regarding “audit tourism”.
If an institution decides not to perform the audit itself or not to perform the audit alone, this must not result in a restriction of the institution’s right of audit. The rights of information and audit of the internal audit function of the outsourcing institution must be granted in full through the outsourcing contract.
Mere provision by the cloud service provider of certifications or other evidence of compliancewith recognised standards does not satisfy the right of information and audit of the outsourcing institution. The outsourcing institution must have the opportunity to influence the scope of the information and audit. This corresponds to the EBA recommendations, which specify corresponding requirements for access to the certifications and audit reports of the cloud service provider.
BaFin’s rights of information and audit and ability to monitor
In addition, the outsourcing contract must ensure BaFin’s unrestricted rights of information and audit and ability to monitor in relation to the outsourced activities and processes. In particular, BaFin’s audits must not be dependent on whether they are commercially reasonable for the cloud service provider.
BaFin’s ability to monitor the cloud service providers must be the same as its ability to supervise the supervised entities as provided for by law. This includes, in particular, the option to perform on-site inspections.
Dalberry Presents Reliable Online Payment Gateway Solutions for Companies And Business Institutions
Dalberry is an online security services provider offering technological solutions for secure online payments.
Online payments are nowadays carried out in almost all sectors of human life, whether banking or online shopping. Hence it is of utmost importance that maximum security is maintained while carrying out such payments as without such measures major financial losses can occur for both individuals and business firms. Dalberry is a leading solutions provider for secure technology that would make it easier and reliable to carry out transactions online. As a firm based in Romania and Gibraltar, Dalberry offers online payment gateway services to business companies, merchants, financial institutions and individuals that would in turn make online payments secure and efficient.
The risk software/management systems that are developed by Dalberry are now used by most banks and financial institutions all over the world due to their reliability and flexible nature. Apart from online payment gateway solutions, Dalberry also designs AML and compliance software components that are suited for financial institutions. The highly secure software systems developed by Dalberry can offer a range of benefits such as fraud prevention and online transactional accuracy. More companies are now choosing to implement the unique new age solutions offered by Dalberry as they ensure better services for their customers and enhance business efficiency in a significant way.
Dalberry is an online security systems company with bases in Romania and Gibraltar, known for manufacturing products that can in turn enhance the security of online payments for business firms, financial institutions and individuals. Dalberry also offers comprehensive consulting services for companies in relation to risk management associated with online transactions.
Make Your Secure Online Transactions Faster And More Secure
Many companies today offer some form or another of security for those business offering online transactions.
It is of vital importance, naturally, that both the seller and the consumer have security they can depend on. While a number of e-commerce security options have become available, not all offer or can deliver the same degree of security, the security today’s demands require.
Hackers abound on every side of us, not only locally, but across the entire globe. Russia and India are among those most often cited in this respect. And their arm is very long indeed.
At Dalberry we’ve developed the most secure protection system for business yet available in today’s marketplace. The main focus of our offering is not simply in periodically advertising that our service is “new and improved”, but rather we focus on you and your needs. We analyze your weaknesses and deliver on ways to improve and strengthen them. We provide risk management that you can use.
We review and secure technical threats and risk. Banks, for instance, can turn their focus back to offering competitive ways for merchants to pay allowing both entities to turn their efforts into business growth and profitability rather than worrying constantly over security.
Here at Dalberry we hope and intend to become your business’s security company in the area of payment processing. We constantly strive to stay a step ahead of the curve, since as we all know, criminal minds never rest and we must always be on high alert.
Our company’s motto is: “Be honest and straightforward”, and we never for a moment forget this. Our clients trust us and rightfully so. And we never “pass the buck”. We take full responsibility for our actions in every aspect of our services.
In the past, a few security services have dominated the Internet market, but by now we all see that their solutions have not kept pace with the rapidly changing international Internet where every day new players come on line with new ideas for somehow tricking both businesses and individuals out of money. There are so many ways that only a team of dedicated professionals can possibly hope to stay a jump ahead of these hackers.
Our online payment gateway is the perfect solution for merchants to utilize our services. We keep it easy to use, fast, simple and pleasurable.
We offer to the merchant a wide range of services, each highly-customizable so that every merchant can, and will, be completely satisfied and have a tailor-made payment setup in place to handle all business transactions.
Here at Dalberry we, of course, offer a secure web page so there is no expensive technical setup requirement. And merchants receive instant payment rather than having to wait a certain number of hours of “business days” to complete the transaction.
There are so many other desirable options we offer, such as the Dalberry Wallet, a digital wallet that is guaranteed to please almost every business owner. We’ll be more than happy to explain its benefits and convenience.
But at Dalberry we offer much much more. Consultation over liability, cash flow, reserves, foreign exchange analysis and so much more.
As a responsible business executive, you owe it to yourself and to your company to contact Dalberry (www.dalberry.com) today. You’ll be glad you did!
Digital Transformation – Digital Leadership – by Casper Tribler
Our ability to digitally transform companies, governments, healthcare, education, legal systems, law enforcement, communication, finance etc. are pushing forward new digital strategies and increased focus on digital leadership. Such leadership is required across all levels of the horizontal and vertical organizational grid, and across all age groups. The current workforce wants to work for businesses that are digital ambitious, and being a digital risk taker is becoming a necessity for employees to stay attractive as well as organizations to stay competitive within their core activity.
To stay competitive as an employee and an organization Digital Transformation has to be an integrated part of who we are and what we do.
A study presented by Deloitte explains that employees want to work for digital leaders, and across the age groups from 22 to 60 the vast majority of respondents want to work for digitally enabled organizations. 4 Leaders need to bear this in mind in order to attract and retain the best talent needed to transform their digital strategy into digital reality. Many leaders tend to believe that Digital Transformation is driven by technology, but it could not be further from the truth; as Cap Gemini explains it:
Digital transformation is first and foremost a business transformation. People, not technology, are the most important piece in the Digital Transformation puzzle. 1
What is Digital Transformation?
For some Digital Transformation is just another term that is used with increased frequency these days together with other trendy terms such as Disruptive Innovation, Internet of Things, Data Lakes, Machine Learning, SMAC, Code Halos etc.
I have heard the term Digital Transformation described in a rich variety of ways by my industry colleagues within IT and Telecom, and it is evident that Digital Transformation means different things to different people. Some describe Digital Transformation as creating a digital culture centered around a strong brand idea, or that it is about getting a company to be more digital native, acquire new skills and capabilities to be data driven and ultimately more customer centric, and some refer to the concept of ‘going paperless’, or that Digital Transformation changes companies so they can take advantage of new opportunities and face the challenges from the technical world. My response to these definitions are that Digital Transformation is all that and much more. However, this leaves us with a rather illusive concept and it would be quite helpful if we had a more defined understanding of Digital Transformation.
From studying various publications, I managed to put together below definition that I would like to share with you:
Digital Transformation (definition)
Strategically embrace new digital innovations enhancing the customer experience
Strategic: Ever evolving strategic exercise promoted by the relevant leadership, which are then required to be translated into clearly defined tactical and operational goals ensuring long-term commitment and ongoing momentum.
New digital innovations: Move the organization forward compared to its current digital capabilities enabling new types of innovation and creativity in a particular domain, rather than simply enhance, support and rely on existing technologies. The transformation is focused on digital initiatives and integrations within the organization, such as for example Internet of Things, or social, mobile, analytics and cloud (SMAC) and other underlying IT architectures such as big data, Data Lakes etc.
Customer experience: Ensure that the overall goal from the Digital Transformation is to deliver an enhanced customer experience having a positive impact on the organization’s performance for example on its revenue, profit, share price etc.
What drives digital leadership?
The persistent evolution of technology is a source of constant inspiration to redefine the way we exist (co-exist) as a species. Digital Transformation has become the ultimate challenge in change management because it impacts not only organizational structures and strategic positioning, but all levels of society (every task, activity, process).
Leaders must constantly challenge their organizations to ensure that this technology-enabled change can unlock productivity gains and competitive advantages, and understand where and how the fundamentals of their current operations could be unsettled by agile new entrants or new business models.
Today’s leaders need insights to validate strategic and tactical decisions quickly, which requires access to large volumes of data, from an increasing number of different information channels and preferably real-time. As a consequence, leaders are becoming more personally involved in generating their own tailor-made insights rather than simply reading a pre-canned report or analysis. And if you are an ambitious leader that likes to be in control of your own destiny, what better way to reach such enlightenment than spearheading the Digital Transformation of your organization?
What is digital leadership?
This may come as a surprise to some people; Digital Transformation does not demand mastery of the technologies. Instead, it requires commercial leadership to articulate the value of digital technologies as a critical part of the organization’s future. 4
The success of Digital Transformation is greatly dependent on the organization’s ability to commercialize its digital strategy.
Digital leaders are more likely to have a data-driven mentality when it comes to decision making rather than taking what is presented at face value; these digital leaders has a need to verify their commercial decisions through analyses: 5
Further to the argument that the core success driver to Digital Transformation is not technology nor technological mastery, is supported by Aberdeen Group’s study from October 2015 stating that digital leaders are:
73% more likely to have strong analytical knowledge within non-technical roles.
65% more likely to have processes in place for defining and communicating business needs for analytics.
38% more likely to have policies and/or tools in place for governing end-user access to data.
Successful digital leaders also understand that to get maximum ROI out of investing into Digital Transformation they have to push their organizations to accelerate the flow of information between departments, and make that information available more quickly and more broadly across the organization. In more concrete terms this means creating an environment that nurtures data-driven insight thinking, implementing clear user needs and strong policies for data governance, support more efficient decision-making processes delivering relevant capabilities to the right job roles at the right time. These are all characteristics that digital leaders foster within their organization ultimately building the foundation for lower risk, increased profitability and faster management decisions.
Why should leaders take digital seriously?
Today’s most critical decisions not only rest on the business feel and gut instinct of our leaders, but to a greater extend requires convincing insights. The involvement of data may once have been purely supporting or affirming in nature, but now plays a more central role. Even shareholders are depending more heavily on a data-driven mindsets to drive their investments forward and Digital Transformation has the tools they need to achieve their vision.
If leaders wish to stay relevant in the future adopting digital risk-taking and formulating digital strategies – if not already – will become the norm. So if leaders are not motivated by the incredible opportunities Digital Transformation in itself offers, then keeping once own job might just do the trick. Digital Transformation is here to stay and the sooner leaders get to terms with this fact the better as they will be able to take advantage from enhanced knowledge sharing, improved process efficiency, revenue growth and increased profit as findings show from Aberdeen Group study in October 2015:
Digital Transformation is here to stay
Digital Transformation is a never ending endeavor and in these disruptive times we live in the frequency of formulating new digital strategies and adopting new technologies is only expected to increase. Our future leaders must embrace Digital Transformation as their mission, and define and deliver winning digital strategies.
As many leaders have already started their organization’s digital exploration, those who has yet to begin need to take this development seriously. The sooner they transform themselves into digital leaders and start their own Digital Transformation journey, the less catching up they have to do and the more relevant they will become to their shareholders, management and employees going forward.
More information, questions or comments
Thank you for reading this article “Digital Transformation – Digital Leadership”. Please visit me on LinkedIn to find my previous articles covering Big Data (RoI and Big Data), Data Lakes (Introduction | How does it work? | Risk Management – Part 1 | Risk Management – Part 2), Predictive Analytics, Internet of Things, Customer Insight Analytics (Part 1: Introduction | Part 2: Solutions | Part 3: Implementation | Part 4: Conclusion), and more: LINK
Please connect to me on LinkedIn (LINK) and Twitter at @CasperTribler.
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Special thanks to below sources of inspiration and references: