Securities Regulation of Private Offerings in the Cyberspace Era: Legal Translation, Advertising and Business Context (Cybersecurities Symposium)

Evaluating the application of existing securities laws and regulation in a cyberspace context requires an understanding of how existing legal structures accommodate changing societal or other conditions, including changes resulting from technological innovation and changing business culture and practice, which both encompass and extend beyond changes resulting from technological innovations. Understanding the application of securities regulation in such circumstances represents a distinct response to the familiar problem of applying and borrowing from existing legal frameworks in new contexts. However, since existing securities laws and regulations were originally crafted during an earlier time period, the translation of such frameworks in new contexts leads at times to a questionable outcomes, at least partly because such frameworks represent a response to a particular historical context involving specific business practices that might not be as relevant in the business climate of today. This is particularly true with respect to non-public offerings, which were recognized in the Securities Act of 1933 from its inception. This article assesses the translation of existing securities laws and regulation in the cyberspace context of non-public offerings, focusing specifically on restrictions on general solicitations and advertising in non-public offerings, as well as whether and how structures that exist in real space can be adapted in the cyberspace context