# AUTHORITY REGISTER P7 — the frozen RAPID architecture (v4, 4 September 2026)
## Consolidated register · federal, plus Washington State where a track reaches it

**Commissioned:** 5 September 2026 · **Delivered:** 5 September 2026
**Builds on:** AUTHORITY-REGISTER-P6 (3 September 2026). **This document supersedes P6 as the operative register.** P6's still-valid entries are carried forward inside the per-track registers in Part 1 and are marked `[CARRIED FROM P6]`, `[SUPERSEDES P6 entry X]` or `[NEW]`. A reader does not need to open P6.

**Scope:** ten research streams — the five tracks of the P7 commission and the five of its addendum. Primary sources only for citation; verbatim quotation with pin-cites; everything date- and status-checked. Secondary sources used only as leads; a proposition existing only in a secondary source is reported as a negative finding.

**No legal conclusions are offered anywhere in this document.** Entries are scored *supports* or *undercuts* only. Where the material is silent, the silence is reported as a finding rather than filled.

**A note on the breadth of law covered.** Parts 1–6 are securities law. Part 7 spans four further bodies: Washington's privacy act (a criminal statute), federal and state consumer subscription law, exchange and vendor market-data licensing, and copyright/open-source licensing. They are not securities questions and should not be read as though the securities analysis governs them.

---

# READ THIS FIRST — the nine findings that move the position

**1 · Signal-only buys nothing on the Advisers Act publisher's exclusion, because *R&W*'s own software output was already signal-shaped.**
The commission's premise was that reducing the engine's payload would distance it from the adverse line. The opposite is nearer the truth. *R&W Technical Services*, 205 F.3d at 168, records that the software "made buy and sell recommendations that the user was advised to act upon at the open of trading the next day" — instrument and side, no quantity, no price, no order type. The court called them "recommendations" throughout and decided the case on **timing**, **generality** and a CEA-specific "solely incidental" clause. Content plays no role in any of the three. *Weiss* is worse: the Commission recorded that the signals "**often only identify the investment**" and were sent "**only when [Weiss] purports to see an investment opportunity arise**" — then found §202(a)(11) met in a single sentence.

**Payload reduction reproduces the adverse fact pattern rather than escaping it.**

**2 · But content does matter in one live line — and it is the line the frozen configuration should be argued on.**
**NASD Notice to Members 01-23** makes "**content**, context, and manner of presentation" the test for whether a communication is a recommendation, distinguishes one that "suggests the purchase, sale, or exchange of a security" from one "**simply providing objective data**," and says at footnote 18 that a **customer-requested price-point alert** is, "without more," not a recommendation. The **Commission adopted that framework by citation** in the Regulation Best Interest adopting release, 34-86031 at 79 & n.161.

It lands favourably **only because the member sets the criteria and asks to be told** — which relocates the whole argument onto authorship and request, exactly as the commission suspected. And the same document says a disclaimer cannot discharge the obligation, and that it makes no difference whether a person or "a computer software program" made the decision.

**3 · The strongest supporting authority in the entire project was found, and it is closer on the facts than anything in P6.**
***CommandTRADE, LP / GlobalTec Solutions*** (SEC staff, §15(a), 28 December 2005). The incoming letter — which P6 never read — describes **locally installed, user-programmable software that, in "automatic" mode, monitored the market unattended and transmitted a complete order to the user's own broker whenever the user's own parameters were met**, with no human act per order. Relief granted. The stated grounds: no transaction-based compensation, no funds or securities, no routing decisions, no security-specific advice, broker-neutrality — and "**order transmission**" was expressly carved **out** of the disqualifiers.

The frozen configuration is *stricter* than what the staff cleared: it inserts a fresh member act before every live order and never automates.

**4 · The Schwab 1996 letter was recovered in full — and it cuts both ways harder than expected.**
P6 called it "the single highest-value unread document." No OCR binary existed on the machine, so all 14 pages were rendered at 300 dpi and read by vision. **More favourable than P6 could know** on the axis that matters most: the staff permitted a flat per-order fee **paid by the broker to the intermediary**. The frozen configuration has no per-trade element and takes nothing from brokers — it sits further from the transaction than the conduct the staff cleared. Condition 2(iv) (no order acceptance, no broker-dealer selection, no routing to markets) is met cleanly.

**Less favourable on two structural axes P6 could not see.** The relief runs to an intermediary that does no more than "**routing messages**" — the runtime *composes* the order. And the whole arrangement is a **tripartite written agreement with the broker**, who reviews the intermediary's marketing and "will take responsibility for orders once they have been received." The frozen configuration has no broker leg at all. And the staff's own 2002 gloss in *Swiss American/Streetline* narrows the 1996 letter with two conditions **that are not in its text** — "broad-based" providers "not specifically direct[ing] their operations toward the securities industry" — and fixes "nominal" below $1 per order.

**5 · The single most damaging sentence in P7 is in *Neovest* ¶14, and P6 never quoted it.**
> "**Neovest's solicitation efforts were consistent with the company branding itself as an OEMS provider that is independent from any specific executing broker-dealer.**"

The frozen configuration's marketing rule — market software tools, never a trading, execution or signal service — **is a branding position of exactly that kind**. This is the only primary-source treatment of such a position located anywhere across P6 and P7, and the Commission recorded it as **congruent with** the solicitation finding, not as a defence to it. *Neovest*'s second operative finding is not removed by any architecture, and it is not removed by how the product is described either.

**6 · Local composition from member-entered values is not, on the material, a status-changing fact — and the one litigated case says so.**
***Taucher v. Born*** made express findings of fact on precisely this mechanism: user-supplied "Parameters" the user selects to "fine tune" the output; output "**which the user must then interpret by using his own skills and knowledge**"; a publisher "**unfamiliar with the particular needs and circumstances of specific individuals**" who "**does not and cannot alter the contents … after it has been distributed**." Those findings supported the conclusion that the publisher did not "exercise judgment" on the customer's behalf.

**And at 475 the same court held: "Each of the plaintiffs in this case falls squarely within the definition of a CTA."** User-entered parameters did not remove the publisher from the statutory definition. The relief was constitutional, as-applied, district-court only, and mooted by regulation. **P6's S2b quoted the conclusions of law without this holding; that over-reading is corrected here.**

Location of execution is inert in every direction: local in *Vartuli* (publisher held a CTA), local in *CommandTRADE* (relief), hosted in *S3 Matching* (relief), local in *Taucher* (publisher a CTA). No authority anywhere makes it operative.

**7 · A new adverse case aimed squarely at machine-speed composition.**
***SEC v. GEL Direct Trust*** (S.D.N.Y. 2023). The defendants pleaded that they were "a glorified admin" who merely kept "internal records of the trading its customers directed." That failed at the pleading stage. The court inferred discretion from the interval — "**Six seconds later, GEL responded 'yes.' A plausible inference … is that GEL could not have received specific instructions authorizing this transaction from its customer in such a short amount of time and, therefore, exercised discretion**" — and held at n.1 that "**Even if GEL was not so authorized … the SEC alleges that GEL exercised discretion as a matter of fact.**"

Per-order approval is the answer to that inference. Standing execution would forfeit it entirely.

**8 · No-preset onboarding does not close P6's central finding, and it trades a documented absence for a documented adverse line.**
Removing adoption from the product does not create an authority that weights authorship. **No statute, rule, release, letter or decision distinguishes authoring from adopting for §202(a)(11) status** — that finding is unchanged. And the one authority that uses the word still runs the wrong way: IA-5653 at 21, the adopter "is liable … just as it would be liable for content it produced itself."

Worse, by moving the published example **inside the product beside the field**, the configuration substitutes a **presentation** question for an **adoption** question — and the presentation question has adverse authority where the adoption question had none. ***Keimer v. Buena Vista Books*** held the identical investment figure had one legal character inside the book and another on its cover, and **expressly rejected** the argument that protection travels with the content. The SEC's 2008 web-sites guidance makes attribution turn on "**the layout of the screen**," on how selectively a specific piece of third-party information is displayed, and says twice that a disclaimer does not cure.

Countervailing, and it is real: **no authority holds a publisher responsible for what readers did with published numbers** — *First Equity*, *Winter*, *Gutter*, *Gale* all run the other way. The live risk from naming a published source beside a field is **implied endorsement**, enforced by the author, not adviser status enforced by the Commission.

**9 · From the addendum — four things that were assumed and are not so.**
- **The FTC "click-to-cancel" rule is not in force.** Vacated in its entirety by the Eighth Circuit on 8 July 2025 (*Custom Communications v. FTC*) for failure to conduct the §22 preliminary regulatory analysis; the pre-2024 rule was formally recodified on 12 February 2026 and **does not reach this product**. **ROSCA §8403 is the stable federal floor.**
- ***Rimar*** is not an unregistered-adviser case. It is an **AI-washing fraud** order against a **state-registered** adviser, with no aiding-abetting and no causing finding anywhere in it.
- **The runtime being GPL-3.0-*only* rather than AGPL-3.0 is the load-bearing licensing fact.** GPL-3.0 §13 is a compatibility clause; the network-interaction obligation lives in **AGPL-3.0** §13. A hosted engine that never transfers a copy has no source-disclosure duty **even if the combination were one work**. Relicensing to AGPL would destroy that.
- **Cboe's amended Non-Display Usage definition, effective 1 April 2026**, moved from "**without** a display" to "for a purpose that is **not solely** in support of display." A machine that reads a price to evaluate a rule is no longer solely supporting display, even though a human sees the result.

---

# PART 2 — CONSOLIDATED ADVERSE REGISTER

Ranked by threat across all ten streams. Per-track adverse registers with full quotation appear in Parts 1 and 7.

| # | Authority | Stream | Threat | Distinguishes — or fails to |
|---|---|---|---|---|
| 1 | ***In re Neovest***, Rel. 34-92285 ¶14, final sentence — independent-software branding recorded as "**consistent with**" the solicitation finding | 5 | **5** | **No.** The marketing rule *is* a branding position, and this is the only primary-source treatment of one. Compensation is distinguished cleanly; solicitation is not distinguished at all, and the frozen marketing plan draws from ¶14's own list — trade shows, conferences, employees, resellers, referrals, website. |
| 2 | ***R&W Technical Services***, 205 F.3d at 168, 174-75 — output already signal-shaped; decided on timing, generality, and a CEA "solely incidental" clause | 1 | **5** | **No, and the frozen configuration moves toward it.** An engine that fires when a rule is met is timed to market activity by construction. Member authorship of the rule does not change *when* the output fires. |
| 3 | ***In re Weiss Research***, IA-2525 ¶¶4, 21 — signals that "often only identify the investment," fired "only when it purports to see an investment opportunity arise," flat annual fee, §202(a)(11) met in one sentence | 1, 5 | **5** | **Barely.** What distinguished *Weiss* was personalization and effective discretion — not payload and not fee. §203(a) requires no scienter. |
| 4 | **Exchange Act §3(a)(35)(B)** + "directly or indirectly" — reaches a person who "makes decisions … **even though some other person may have responsibility**" | 2 | **5** | **No.** Local execution is invisible to the text. Prong (B) is drafted to defeat "the member has responsibility." **No authority anywhere applies §3(a)(35) to software, in either direction.** |
| 5 | ***SEC v. GEL Direct Trust***, ECF 38 at 7 & n.1 — discretion inferred from "six seconds later"; discretion "as a matter of fact" without authorisation | 2 | **5** | **Only by design.** Per-order approval places a fresh, displayed member act before every transmission. The defendants' "our customers directed the trades" framing is the configuration's own, and it lost at the pleading stage. |
| 6 | ***Taucher v. Born***, 53 F. Supp. 2d at 475 — "**Each of the plaintiffs … falls squarely within the definition of a CTA**," notwithstanding findings 34-39, 47, 51, 54 | 2 | **5** | **No.** In the one litigated case on this mechanism, user-entered parameters did not remove the publisher from a statutory definition. |
| 7 | **The 1996 Schwab letter's own "other than by routing messages" carve-out, and condition 3's tripartite written broker agreement** | 5 | **5** | **No, on both.** The runtime composes order terms and works a price band; that is more than routing a message. And there is no Company↔broker leg, no broker review of marketing, no broker assumption of responsibility for received orders. |
| 8 | ***Swiss American/Streetline*** (2002) as gloss on the 1996 letter — relief ran to "**broad-based**" providers "**not specifically direct[ing] their operations toward the securities industry**," fee below $1/order | 5 | **5** | **No.** The gloss adds conditions absent from the 1996 text, but it is the staff's own later reading of its own letter, and a product directed at securities investors fails it on any reading. |
| 9 | **Staff Statement on Certain User Interfaces (13 Apr 2026)** — excludes "**or taking or routing orders**"; fn.4 no application outside crypto; fn.1 no legal force; sunsets 2031 | 2, 5 | **5** | **No.** The document that otherwise most resembles the layering excludes precisely the runtime's function. |
| 10 | **Rel. IC-22579 n.18** — a "nondiscretionary" program in which the client follows every recommendation "**may raise a question whether the program in fact is nondiscretionary**" | 2, 3 | **5** | **Barely.** Element (i), authority to accept or reject, is satisfied. Element (ii), actual exercise of judgment, is behavioural and the one-act design makes it frictionless by intent. |
| 11 | **RCW 21.20.020(1)** — status-blind advisory antifraud, "**whether or not the person is an investment adviser … under this chapter or the Investment Advisers Act**," expressly preserved by §222(d) | 2, 4 | **5** | **No distinction on status.** Only factual: whether consideration is received "primarily for advising." **The 2002 amendment that added that sentence supersedes *Brin v. Stutzman*'s contrary scope holding**, and no Washington court has construed the phrase since. |
| 12 | ***In re Solium Financial Services LLC*** (Wash. Sec. Div., 23 Jan 2020) — software that "does not provide advice … or solicit transactions in any manner," transmitting only at the customer's request through a registered clearing broker, held an unregistered state broker-dealer | 4 | **5** | **Distinguishes on commission-sharing only.** The pass-through/no-advice argument was Solium's exact position and it was rejected. |
| 13 | **Cboe Non-Display Usage, eff. 1 Apr 2026** — "not **solely** in support of display"; and **UTP**: an **API** is an Uncontrolled Product, and "**Professional Uncontrolled Recipients may not use third party software**" | 8 | **5** | **No.** The architecture is definitionally third-party software receiving data over an API onto a second device. It lands in the most expensive bucket by design. |
| 14 | **Nasdaq GDA §7 audit; NYSE retroactive charges + 10% administrative fee reaching "a person in the chain of dissemination"; OPRA on-premises inspection** | 8 | **5** | **No.** The practical enforcement mechanism in market data is the contractual audit, not litigation. |
| 15 | **§203(k)(1) / §21C(a)** — "cause … an act or omission the person **knew or should have known** would contribute," confirmed as "**classic negligence language**" by *KPMG v. SEC*, 289 F.3d at 113, 120 | 10 | **5** | **No.** No relationship, registration, association or compensation element. And §203(a) is non-scienter, so negligence is the whole standard. |
| 16 | ***SEC v. Apuzzo***, 689 F.3d at 206, 213 — substantial assistance is *Peoni* participation; **proximate cause expressly not required** | 10 | **5** | **No.** Every element of the separation design — not hosting, not transmitting, direct fetch — is a **causation** argument, and causation is expressly not the test. |
| 17 | ***In re Coburn***, ¶28 and 5 n.8 — control finding was **exclusive private-key custody**; and **EtherDelta was never charged** | 10 | **5** | **No.** "Own maintainer signing keys" is the same fact in different clothing, and exposure does not wait on the counterparty being charged. |
| 18 | ***Ranieri Partners***, ord. at 3 n.2 and ¶¶7, 18, 20 — **counsel-drafted engagement agreements with express role limits and express prohibitions on the very conduct, all disregarded** because conduct did not match | 10 | **5** | **No.** This is the "disclaimers disregarded" authority. The 20% share's express allocation to "name and member relationship, not for any list or selection" is a written characterisation of what a payment is *for*, and on *Ranieri* it is worth what the conduct makes it worth. |
| 19 | **RCW 9.73.030(3) + *State v. Fields*** (Wash. Ct. App. 2024) — the announcement must be **in** the recording; an earlier out-of-recording notice "**does not meet the requirements of the exception**"; treated as a **strict** requirement | 6 | **5** | **No.** A click before recording starts is not an announcement recorded at the beginning of the recording. Violation is a **gross misdemeanour** (up to 364 days, $5,000) plus civil liability with fees, and the recording is **inadmissible**. |
| 20 | ***State v. Modica***, 164 Wn.2d at 88-89 — "**Signs or automated recordings that calls may be recorded or monitored do not, in themselves, defeat a reasonable expectation of privacy**"; two-party conversations presumed private | 6 | **4** | **No.** Notice cannot be defended as taking the session outside the act; it must do its work as consent. |
| 21 | ***State v. Fowler***, 157 Wn.2d at 396 — RCW 9.73.030 reaches an out-of-state recording made "**by an agent of a Washington official or other person**" or "**with the intent to use the recordings in Washington**" | 6 | **4** | **No.** The recording exists because the Company wants the record. "It is the member's own recording on the member's own machine" does not survive the agency caveat. |
| 22 | **IA-1092 at 10** — a single bundled fee suffices; compensation need not come from the advisee; **IA-6050 at 12**, economic benefit "not limited to fees and commissions" | 10 | **4** | **Answers the question directly, and against the position.** |
| 23 | **IA-5653 at 56** — the 1979 solicitor shelter withdrawn; "**A promoter may … be acting as an investment adviser**"; and at 122 n.404, a share of general profits is indirect receipt "**without setting aside revenue**" | 10 | **4** | **Partly.** The express set-aside is the instinct the Commission's own language asks for. *Ranieri* is the answer to whether a set-aside written down and not lived out is worth anything. |
| 24 | **SEC *Guide to Broker-Dealer Registration*** — "effecting **or facilitating**"; "persons that **operate or control electronic or other platforms to trade securities**" | 2, 5 | **4** | **No distinction on the face of the text.** "Facilitating" is absent from §3(a)(4)(A) and is rejected by four courts — that is a fight, not a distinction. |
| 25 | ***Keimer v. Buena Vista Books***, 75 Cal. App. 4th at 1229-32 — the same investment figure changes legal character when moved from the text to another surface; the "protection travels" argument **expressly rejected** | 4 | **4** | **Partially, and not on the reasoning.** The number here is true, verbatim, and on an onboarding surface rather than a promotional one — but the proposition the configuration needs is the one *Keimer* declined to accept. ◇ *Lacoff* holds the other way on identical facts and is unretrieved. |
| 26 | **Commission Guidance on the Use of Company Web Sites, 73 FR at 45870-71** — attribution turns on context, source-confusion precautions and "**the layout of the screen**"; embedding within a filed document is "**always**" adoption; a disclaimer does not insulate | 4 | **4** | **Distinguishes on domain only.** But its operative variables are precisely the ones limb (b) changes, and they all move the wrong way when one example is placed beside one field. |
| 27 | **FINRA Reg. Notice 11-02** — "a series of actions … **may amount to a recommendation when considered in the aggregate**"; "**it makes no difference whether the communication was initiated by a person or a computer software program**" | 1 | **4** | **No.** Written for this architecture: signal, plus composed order, plus a one-tap panel, assessed together rather than field by field. |
| 28 | **FINRA Rule 3260(b)** — "prior written authorization **to a stated individual or individuals**"; **17 C.F.R. §240.17a-3(a)(17)(ii)** — "the dated signature of **each natural person** to whom discretionary authority was granted" | 3 | **4** | **No.** A grant whose grantee is a locally-running program has no counterpart in the recordkeeping framework. An absence, not a prohibition — but there is no template to point at. |
| 29 | ***Garcia v. Stoneledge Furniture*** (Cal. Ct. App. 2024) — proponent failed where the record "lacked a date, time, or IP address" and showed no "indication it was created within the [claimed] system"; the evidence "did not show that **only** [the signatory] could have placed the electronic signature" | 3 | **4** | **Distinguishes on evidence, not on burden.** The three things *Garcia* found missing are exactly the fields the mint carries — but California lets a bare denial create a fact issue, where *Aerotek* does not. |
| 30 | **Schwab Trader API Developer Program Agreement §2** — any Application "for distribution (**for free or for a fee**) to third parties" is a Commercial Application requiring Company registration and review; **§13** bars "**recommending or endorsing specific securities or investment strategies**" | 5 | **4** | **Partially at best.** Free distribution is expressly caught, putting the runtime's publisher into the broker's registration gate. §13 is a live contractual restatement of the Track 1 question, enforceable by the broker without any regulator. |
| 31 | **FINRA Reg. Notice 12-25 n.42** — "the more a general class is narrowed (e.g., by providing a list of issuers …), the more likely such a communication would be considered a '**recommendation**'" | 1 | **4** | **No.** A signal naming one instrument sits at the specific end of the gradient. Signal-only reduces *transaction* detail while leaving *identification* detail maximal. |
| 32 | **Tiingo TOS §1.6(c) prohibited list and §1.6(b) deletion-on-termination** — "sufficiently complete sequence that permits reconstruction"; deletion required from "systems used for legal, regulatory, or compliance retention" | 8 | **4** | **No, and it collides with the journal.** A timestamped fire/no-fire series brackets the price, and the journal stores the exact order terms shown, which normally include a price band. |
| 33 | **Nasdaq / NYSE / CTA / OPRA Non-Professional definitions** — each disqualifies a person "engaged as an '**investment adviser**' as that term is defined in Section 202(a)(11) … **whether or not registered**" | 8 | **4** | **No, and it is wired to the rest of the register.** If any member is characterised within §202(a)(11), that member is a Professional Subscriber and the distributor is retroactively liable at the professional rate. |
| 34 | **Reg ATS adopting release, 63 FR at 70852** — "the organization responsible for **arranging the collective efforts** will be deemed to have established a trading facility" | 2 | **3** | **Should not bite** — the configuration fails Rule 3b-16(a)(1). But it is a template a regulator could import, and it is the Exchange Act's nearest analogue to a look-through. |
| 35 | ***Progress Software v. MySQL AB***, 195 F. Supp. 2d at 329 — derivative-or-separate is "a **fair dispute**" between expert affidavits; "**MySQL seems to have the better argument here**" | 9 | **4** | **No.** The only US court to look at GPL derivative scope called it a fact question, leaned copyleft on that record, and resolved nothing. Separateness is a factual case to be evidenced in advance, not a legal shield. |
| 36 | **FSF FAQ positions on linking and plug-ins** — steward commentary **never adopted by any US court**, and the FSF says so itself: "**This is a legal question, which ultimately judges will decide**" | 9 | **4** | **No.** A design satisfying the FSF's criteria has satisfied the party most likely to complain; it has not satisfied a court, because none has spoken. |
| 37 | **GPL-3.0 §5 aggregate proviso** — separate works must be "**not by their nature extensions of the covered work**" | 9 | **4** | **This is licence text, not FAQ.** An engine built to feed one runtime, sold on the strength of it, and useless without it invites that reading. |
| 38 | **815 ILCS 601/10(a-5)** — trial-conversion notice **3 days before the cancellation deadline where a free trial or promotional period lasts 15 days or longer** | 7 | **3** | **No.** Tighter than California (>31 days) and New York (>1 month). The one-time trial discount triggers it. |
| 39 | **89 FR 90487** — the FTC **refused** to let contractual allocation shift negative-option duties: "**A seller cannot evade its responsibility to deal honestly with consumers by contracting with a third party who does not**"; and in *Amazon* and *Google* it charged the **platform that controlled billing** | 7 | **3** | **No.** The correct response to a platform-managed flow is contract-plus-monitoring, not allocation. |

---

# PART 3 — DELTA AGAINST P6

## 3.1 · The three questions the commission asks explicitly

### Does signal-only remove *Coinbase* factor (9)?

**Not observed to be removed. It is narrowed, and only in half.** Factor (9) is disjunctive: "makes valuations as to the merits of the investment **or** gives advice."

- **"Makes valuations as to the merits" — materially weakened.** No price, no price band, no quantity, no order type means no expressed view about value or size. *Coinbase* itself held that "providing pricing comparisons does not rise to the level of routing or making investment recommendations."
- **"Or gives advice" — not removed by any located authority.** *Weiss* ¶4/¶21 and *R&W* at 168, 174-75 both treat instrument-plus-side output as advice or recommendation. NTM 01-23 puts a communication that "suggests the purchase, sale, or exchange of a security" on the recommendation side. RN 12-25 n.42's narrowing gradient puts a named instrument at the specific end. IA-6050 at 12 forecloses the argument that thinner output escapes: a person is generally an adviser "**even if its advice … do[es] not relate to specific securities**."

**What actually does the work on factor (9) is not payload but three other facts**: that the member authored the trigger criteria, that the member requested the notification, and that the output is not tailored to the member's circumstances. Two structural caveats on the citation itself: the *Coinbase* action was dismissed by joint stipulation on 27 February 2025, expressly not on the merits (opinion not vacated); and the factor list is non-exclusive (*Benger*, 697 F. Supp. 2d at 945).

### Does no-preset onboarding close P6 finding 1?

**No.** P6 finding 1 was a finding about the *absence* of authority. Removing one term from an undecided comparison does not decide it, and nothing in this pass created any authority. The register still contains no statute, rule, release, letter or decision in which who authored a rule bore on who is an investment adviser.

Three further points. **First**, the one authority that uses the word still runs the wrong way — IA-5653 at 21. If anything, no-preset onboarding *relies on* the adoption doctrine's premise while that doctrine exists to attach liability. **Second**, what it does close is narrower and real: it removes the fact pattern IM Guidance 2017-02 at 7 addresses (there is no recommendation to depart from), and moves the configuration to the favourable end of *Datastream* factor 2 and squarely into ◇ *Wilson & Associates*' "**no subjective factors built into the formulae**." Those are gains on **factors**, not on **status**, and all are staff-level. **Third**, it opens something P6 did not have to consider: by putting the published example inside the product beside the field, it substitutes a **presentation** question for an **adoption** question — and the presentation question has adverse authority where the adoption question had none.

### Does the RAPID-owned panel close P6 track 3a?

**It closes part of it and leaves two parts open.**

**Closed — the transaction-authorization gap.** P6's 3a problem was that the entire on-point body of law (Rel. 33-7233 Ex. 6; Rel. 33-7856 n.25) was about **document delivery**, so nothing addressed consent obtained in one party's surface and relied on for a **transaction**. **12 C.F.R. §1005.10(b) and Official Interpretation comments 10(b)-2, -3, -5 and -6 are about a transaction authorization** — an authorization to move value out of an account, obtained by a third party in the third party's own process, satisfied electronically, with the security code **expressly permitted not to originate with the institution holding the account**. **12 C.F.R. Part 1033 subpart D** adds a second anchor with a content checklist that maps closely onto the journal's rendered document.

**Also closed — the attribution limb.** P6 had UETA §9 as text only. P7 adds the leading judicial construction (*Aerotek*, Tex. 2021, identical statutory text): "**A record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials**," and once the procedure is proved, "**mere denials do not suffice**." And it adds **Washington's own enactment**, ch. 1.80 RCW, which P6 missed entirely.

**Open, first.** Nothing in the configuration answers the natural-person-grantee problem. FINRA 3260(b) demands authorization "to a stated individual or individuals"; 17a-3(a)(17)(ii) demands "the dated signature of each natural person to whom discretionary authority was granted." A RAPID-owned panel changes who holds the pen; it does not supply a natural-person grantee. The only form-agnostic federal formulation on this axis is 17 C.F.R. §275.204-2(a)(9) — "**other evidences of the granting** of any discretionary authority."

**Open, second.** The surface question itself remains unanswered. The panel's ownership is a fact the design can prove; it is not a fact any located authority makes operative. Every regime found asks about the **process**, the **terms displayed**, the **freedom to refuse** and the **burden of proof** — never about whose page. That is favourable (the engine's framing is not disqualifying) and unhelpful (RAPID ownership earns no independent legal credit). And the two federal default rules on who bears the consequence of a defective consent — Reg E comment 10(b)-2 (the obtainer) and Rel. 33-7856 n.25 (the actor) — **point in opposite directions and have never been reconciled**.

## 3.2 · P6's fence map, item by item

| P6 fence-map entry | P6 verdict | P7 verdict | The authority that moves it |
|---|---|---|---|
| **1 · Credential isolation** | Carries weight — the strongest choice | **Unchanged, and marginally strengthened** | *Kramer* 1339, *Mapp* 592, *Coinbase* 82, *Lowe* n.57 all stand. Added: Schwab Developer Agreement §6.1/§9.2 make per-person non-transferable credentials the broker's own contractual requirement — a Company-level trading credential would breach it on its face. Adverse: *Coburn*'s exclusive-key control finding. |
| **2 · Broker-side 15c3-5** | Carries weight — unambiguous | **Unchanged** | Nothing in P7 disturbs it. The 1996 Schwab letter's analogue ("Schwab will take responsibility for orders once they have been received") predates the rule by 14 years and allocates the same way. |
| **3 · Per-order approval** | Carries weight, but behavioural | **Strengthened, materially** | *GEL Direct*'s six-seconds inference is a new adverse authority that per-order approval answers directly and that standing execution would forfeit. *Vartuli*'s mind-intervention axis is unchanged. IC-22579 n.18 remains the threat. |
| **4 · Unranked channel guide** | Carries weight, from Reg CF Rule 402(b) | **Unchanged** | Not re-examined in P7; nothing found disturbs it. |
| **5 · Local installation** | Neutral | **Unchanged, and now confirmed from four directions** | Local in *Vartuli* (publisher a CTA), local in *CommandTRADE* (relief), hosted in *S3 Matching* (relief), local in *Taucher* (publisher a CTA). **Location of execution is operative nowhere.** |
| **6 · Free / open source** | Neutral | **Unchanged for securities; newly significant for licensing** | No securities authority gives it weight. But GPL-3.0-only (not AGPL) is now the load-bearing fact for the hosted-engine boundary (Part 7, S9), and Nasdaq's AI Policy prohibits granting access to Nasdaq Information in an open-source AI model. |
| **7 · Paper-first** | Neutral / unaddressed | **Out of scope in P7** | The permission ladder now ships `disabled → per-order approval` with no intermediate mode. P6's S8 register on the paper layer stands unchanged and is not carried into this document. |
| **8 · Kill switch / EOD sweep** | Unaddressed | **Unchanged** | Still no authority. |
| **9 · Envelope working** | Exposure surface; the premise was wrong | **Unchanged, and the architecture now says so** | The frozen configuration describes the envelope as "latitude FINRA treats as investment discretion but exempts from the cited recordkeeping requirement." That is a correct reading of FINRA Rule 4512(a)(3), and the only defensible framing. WAC 460-24A-220(2) is the Washington analogue on the same narrow terms. |
| **10 · Bounded standing authorization** | Exposure surface | **Out of scope in P7** — expressly deferred | Note for whenever it returns: *GEL Direct* is aimed at exactly it, and *Weiss* fell on "effectively had investment discretion." |
| **11 · Conformance gate** | Exposure surface | **Unchanged** | Not re-examined. §21C causing-liability is unaffected. |
| **12 · No installation registry** | Neutral on attachment, negative on defence | **Unchanged** | Not re-examined. |
| **13 · Flat membership fee** | Exposure surface dressed as protection | **Strengthened, and this is P7's clearest gain** | The 1996 Schwab letter permitted a flat per-order fee **paid by the broker**; *Quick America* (1993) accepted a **flat periodic monthly fee** conditioned only on it not relating to transaction value; *CommandTRADE* took a flat monthly fee **from participating broker-dealers**. The frozen configuration takes nothing from brokers and nothing per trade — it is further from the transaction than three staff-cleared arrangements. **Still does not reach element one**: *MFS* at 415 (regularity), Peirce's membership-fee reductio, and Rel. 34-90112's "not in itself determinative" all stand. |
| **14 · Curated monthly universes** | The largest unforced exposure | **Unchanged as to the curator; clarified as to the Company** | *Zinn v. Parrish*, 644 F.2d at 364 is new and strengthens the arguendo premise: one "might have been compelled to register … **even if he limited his activities to screening the securities recommendations of others before passing them along**" if he "made a business of such activities." As to the Company: direct fetch is a **causation** argument, and *Apuzzo* says causation is not the test. |
| **NEW · Signal-only** | — | **Neutral on the Advisers Act axis; half a factor on the Exchange Act axis** | See 3.1. |
| **NEW · Runtime composition from member-entered values** | — | **Supported by two staff letters; contradicted by the one litigated case** | *CommandTRADE* and *S3 Matching* support; *Taucher* at 475 is the answer that has actually been given by a court. |
| **NEW · RAPID-owned approval panel** | — | **Supported on process, unaddressed on surface** | Reg E comment 10(b)-5 and *Aerotek*; but no authority makes surface ownership operative. |
| **NEW · No-preset onboarding** | — | **Trades an absence for an adverse line** | See 3.1. |
| **NEW · Direct external fetch** | — | **Most favourable shape available; no authority credits it** | *Missouri Innovation*'s non-involvement representations and the 2008 Release's factors point that way; nothing holds it. |

## 3.3 · The five Why-claims, re-graded

P6 graded the v3 claims. The frozen v4 configuration resolves the inconsistency P6 flagged in claim 3.

| Claim | P6 grade | P7 grade |
|---|---|---|
| **1 · The access does not exist — structurally** | Best supported of the five; open-source half carries no weight | **Unchanged.** Strengthened marginally by Schwab §6.1/§9.2 making per-person credentials a contractual requirement of the member's own broker. |
| **2 · The layers are exactly what the authorities weight most** | Thinnest; two of three limbs contradicted | **Unchanged and confirmed.** *Neovest* still defeats "topology counts for almost everything." Authorship still has no authority weighting it. The disclaimer limb remains supported. |
| **3 · The brain can never create execution authority** | Internally inconsistent with the commission's own §1 | **The inconsistency is resolved — the engine now sends signals only — and the claim is correspondingly stronger.** But *R&W* and *Weiss* show the gain is not on the Advisers Act axis, and §3(a)(35)(B) still reaches a person who "makes decisions … even though some other person may have responsibility." |
| **4 · Execution stays inside the envelope** | 15c3-5 half supported; envelope half undercut on its own terms | **Improved by honesty rather than by authority.** The architecture now describes the envelope as discretion exempted from a recordkeeping requirement, which is what FINRA Rule 4512(a)(3) says. |
| **5 · The record proves it** | Unaddressed | **Partly addressed for the first time.** RCW 1.80.080 makes attribution provable by "the efficacy of any security procedure," with encryption named; *Aerotek* construes the identical text favourably; RCW 1.80.060(3) answers the "written" question. Still unaddressed: no natural-person grantee, and *Garcia* shows the burden is on the proponent. |

---

# PART 4 — WASHINGTON SUB-REGISTER

Only what the tracks touch. **Three corrections to P6's Washington work, one of which propagates.**

## 4.1 · Corrections to P6

**C1 · P6 was wrong that the Washington Securities Division publishes no interpretive statements under the Securities Act.** It publishes **11 live Policy Statements and 16 live Interpretive Statements**, indexed at `dfi.wa.gov/industry/securities-act-interpretive-policy-statements`. P6's three probed URLs all 404 because the live path is different. **This propagates: DFI's position on any RCW 21.20 question may be on the record, and the whole set should be checked against every track, not only this one.**

**C2 · P6 was wrong that Washington has no internet safe harbour.** It has one — **PS-20** (8 September 1997) — as a published Division policy statement rather than a WAC provision. P6's search was confined to Title 460 WAC and could not find it.

**C3 · P6 missed that Washington enacted UETA.** **Chapter 1.80 RCW**, Laws 2020 ch. 57, applying to records created on or after 11 June 2020, repealing ch. 19.360 RCW (ch. 19.34 RCW having been repealed in 2019). **This is the statute that governs the WAC 460-24A-220(5) form question**, and P6 did not have it.

## 4.2 · WAC 460-24A-220(5) — the form question

The rule: "Placing an order to purchase or sell a security for the account of a client upon instruction of a third party **without first having obtained a written third-party trading authorization from the client**."

**What the rule does not say.** It does not define "written," does not require a signature, does not require the authorization to name an individual, and does not specify medium, form, delivery, retention, duration or revocation. **Neither chapter 460-24A WAC nor RCW 21.20 defines "written," "writing," "signed" or "signature" anywhere.**

**The electronic-record chain, and it is complete:**
1. **RCW 1.80.060(3):** "**If a law requires a record to be in writing, an electronic record satisfies the law.**" And (4) for signatures.
2. **RCW 1.80.020(2)** — the only exclusions are wills/codicils/testamentary trusts and Title 62A RCW (UCC) other than named sections. **Securities are not excluded. RCW 21.20 is not excluded. Title 460 WAC is not excluded.**
3. **RCW 21.20 and chapter 460-24A WAC contain no opt-out and no contrary form requirement.** Where the Securities Act does speak to electronic execution — RCW 21.20.353(1)(g), intrastate crowdfunding, "by manual or electronic signature" — it shows the legislature knows how to specify the point and did not do so for authorizations.
4. **RCW 1.80.190** makes ch. 1.80 the ESIGN §7002(a)(1) superseding enactment, so the Washington chapter governs a Washington-law writing requirement.
5. **15 U.S.C. §7003** confirms independently that federal law excepts no securities record.

**Three conditions and one gap.** RCW 1.80.040(2) applies the chapter "only to transactions between parties each of which has **agreed to conduct transactions by electronic means**" — an onboarding artifact, not a runtime one. RCW 1.80.070(1) requires the record to be "capable of retention by the recipient at the time of receipt," failing which it "is not enforceable against the recipient" — the exportable rendering answers this. RCW 1.80.020(4) preserves all other substantive law. **The gap: RCW 1.80.060(3) says "a law," and ch. 1.80 does not define "law." Whether a WAC provision is "a law" for that purpose is unconstrued by any Washington court.**

**Attribution.** RCW 1.80.080(1) is the uniform §9 text, and **RCW 1.80.010(16) names encryption in terms** as a qualifying security procedure. *Aerotek* (Tex. 2021, identical text) is favourable and its enumerated qualifying procedures map onto the design one for one. *Garcia* (Cal. 2024, identical text) is adverse on a record lacking date, time, origin identifier and any intrinsic indication of the producing system — the exact fields the mint carries — and California lets a bare denial create a fact issue.

**Judicial construction: none.** Three opinions in all of CourtListener cite WAC 460-24A-220; **neither mentions subsection (5), a third-party trading authorization, or the form of any authorization.**

**DFI on the form.** **PS-23, *Custody: Standing Letters of Authorization* (29 September 2017)** is the only DFI statement located on the form of any written client authorization. It is a custody policy and a condition of a filing waiver, not a construction of "written," and it says nothing about electronic versus paper. What it requires: the client's **signature**; verification by an **independent party** (the qualified custodian, "such as a signature review or other method"); the adviser's **inability to change** the identified third party; and an **initial and annual reconfirmation notice** from that independent party. Two of those have no counterpart in the configuration.

**Enforcement.** **No DFI order, 2015–2026, cites WAC 460-24A-220(5) or uses the phrase "third-party trading authorization."**

## 4.3 · DFI position on software tools since *Solium*

**None. Verified negative, 2020 through 2026.** Every Division action from 23 January 2020 forward was enumerated and every software/platform/technology hit inspected. *Jedisof* (2021) is an offering matter; the 2022–23 crypto platforms are unregistered offerings; *Robinhood* and *TD Ameritrade* (2024–25) are registered broker-dealer conduct; *Trage Technologies* (2026) and *E.L.M. Investments* (2025) are securities-offering frauds whose software was the *subject* of the offering. **Exactly one Washington action against order-transmitting software exists in the whole 2015–2026 window, and it is *Solium*.**

## 4.4 · RCW 21.20.020(1) and a runtime publisher who supplies no values

**The predicate is "receives any consideration from another party *primarily for advising*."** On the words, a publisher who supplies no policy value, no view about any instrument, and never sees the member's configuration is not receiving consideration primarily for advising. *Vartuli* at 103 points the same way on the parallel CEA text: the statutory predicate attaches to the party whose recommendations the software carries.

**Four things against any comfort in that.**
1. **The "not an investment adviser" escape is closed by statute.** The section applies "**whether or not the person is an investment adviser, federal covered adviser, or investment adviser under this chapter or the Investment Advisers Act of 1940**" — a sentence added by **SB 6483, ch. 65, Laws of 2002, §2**, verified against the session law. Washington's broad publisher exclusion at RCW 21.20.005(6)(d) sits in the *definition* and does not carry into 21.20.020(1).
2. ***Brin v. Stutzman* is superseded on precisely this point.** At 833 it held the section coextensive with adviser status; the 2002 amendment reverses that. Anyone citing *Brin* for the section's scope is citing superseded authority. **Its surviving "engaged in the business" markers — holding out, a definable charge for the advice, financial interest in the outcome — are all favourable to the runtime's publisher.**
3. **No Washington appellate decision construes "primarily for advising" after 13 June 2002.** The predicate is textually unglossed.
4. **The section is not the whole exposure, and the runtime is not the whole configuration.** Whether a flat community membership, or the 20% share, is consideration received "primarily for advising" is the question that matters, and Washington's material does not answer it.

## 4.5 · Washington beyond the securities act — Part 7 cross-references

- **RCW 9.73.030** (recording): all-party consent; violation is a **gross misdemeanour** (up to 364 days, $5,000) plus civil liability with fees and costs; the recording is **inadmissible**. Only **audio** is covered — soundless screen capture is outside the chapter entirely. See Part 7, S6.
- **RCW 19.86** (Consumer Protection Act) reaches "any commerce **directly or indirectly affecting the people of the state of Washington**," with long-arm service; **RCW 19.56.020** makes services "not … solicited unless the recipient specifically requested, in an affirmative manner, the receipt of the … services **according to the terms under which they are being offered**." **Washington appears to have no dedicated auto-renewal statute at all.** See Part 7, S7.

---

# PART 5 — NEGATIVE FINDINGS, CORRECTIONS AND VERIFICATION QUEUE

## 5.1 · Corrections to the commissions' own premises

1. **RCW ch. 19.56 is "Unsolicited Goods" (1967/1992), not an auto-renewal statute**, and there is no 2022 enactment there. Full enumeration of Title 19 and of ch. 19.86 found **no dedicated Washington auto-renewal law**.
2. **815 ILCS 505/2DDD is "Alternative gas suppliers"** (P.A. 95-1051, 2009). Illinois' automatic-renewal law is **815 ILCS 601/**, a free-standing Act.
3. ***Rimar*** is not an unregistered-adviser case. *In the Matter of Rimar Capital USA, Inc. et al.*, Rel. Nos. 33-11316 / 34-101297 / IA-6745 / IC-35357 (10 October 2024) is an **AI-washing fraud** order. Rimar LLC was **state-registered** (California 2021, New York 2022, Florida 2023). The charges are Securities Act §17(a), Exchange Act §10(b)/Rule 10b-5, and Advisers Act §§206(1)–(2). **No unregistered-adviser violation, no aiding-and-abetting finding, no causing finding.** Boro's liability is **primary** under §17(a)(2)/(3) on simple negligence.
4. **The FTC Negative Option Rule as amended in 2024 is vacated**, not merely stayed, and the pre-2024 rule was recodified on 12 February 2026. Any compliance work built to §§425.3–425.6 is built to a vacated rule.

## 5.2 · Corrections to P6

5. **§208(d) does not reach a third party's violation.** It forbids doing indirectly what "it would be unlawful for **such person** to do directly" — the antecedent is the actor. P6's S7 scored it threat 5 against the counterparty-status question; it is inapplicable there on its text. **Downgraded to 1 for that question.** P6's separate use of §208(d) in the individual-acting-through-his-own-entity direction is unaffected. Caveat: the reading is textual and untested — four opinions cite §80b-8, none applies subsection (d).
6. **Exchange Act Rel. No. 34-90112 is the proposed Finders exemptive order (7 October 2020, File No. S7-13-20), never adopted — not *Neovest*.** P6's S7 search log recorded it as a *Neovest* 404.
7. ***Taucher v. Born*** — P6's S2b quoted the conclusions of law without the statutory holding at 475. See Headline 6.
8. **The 1996 Schwab letter is indexed under "Broker-Dealer Registration – Other," not "Clerical and Ministerial Activities."**
9. **Schwab's Trader API "Individual" and "Commercial" terms are the same document** — one "Schwab Trader API Developer Program Agreement, May 2023." The split is a registration and entitlement distinction under §2 and §6.2, not two contracts. P6 inferred two documents from the sitemap.
10. **The three Washington corrections at 4.1.**
11. **The SEC listing `populate` filter matches the Respondents field only** — topical strings return "No Results match the chosen filters" even where the subject matter exists. P6 established the parameter name but not its scope.

## 5.3 · Negative findings — absences that are themselves the finding

12. **No authority in any regime turns on the *granularity* of a securities output** — a bare signal versus complete proposed order terms. Not a statute, rule, release, staff letter or reported decision. **The distinction the frozen configuration is built around does not appear as an operative concept anywhere.**
13. **No SEC or SEC-staff authority treats an alert, screener or condition-monitor product under the Advisers Act.** Every located authority on condition-met notifications is Exchange Act / SRO material about whether a *recommendation* was made. The gap between the two regimes on this exact product shape is unbridged.
14. **The Commission asked the notification question and never answered it.** File No. S7-10-21 (34-92766, 27 August 2021) identified notifications as a distinct digital engagement practice; the only follow-on rulemaking (88 FR 53960) was formally withdrawn on 17 June 2025.
15. **No authority applies Exchange Act §3(a)(35) to software, an algorithm or a technology vendor, in either direction.** The concept is applied only to persons; the Commission's only elaboration (Rule 13f-1(b)) extends it by **control**, and Form 13F's categories are "sole," "shared-defined," "shared-other" — every one a person. **No box for software.**
16. **No authority on authorship attribution to a publisher who supplies no values and never sees the user's configuration.**
17. **No SEC or FINRA treatment of who is responsible for an order composed from customer-set defaults.** FINRA Regulatory Notice 15-09 was read in full and addresses members' supervision of their own algorithmic strategies only.
18. **The word "parameter" appears nowhere** in §3(a)(4), §3(a)(35), §15(a), 17 C.F.R. §240.17a-3, FINRA Rule 3260 or FINRA Rule 4512. The whole "who authored the values" line rests on staff letters and one district-court judgment.
19. **No authority addresses whose surface takes the act** when an authorization UI belonging to party A is embedded inside party B's page. Ten distinct CourtListener formulations returned nothing. **PCI-style hosted fields and hosted payment pages have no primary-law footprint at all.**
20. **The two federal allocations of responsibility for a defective consent are in unreconciled tension** — Reg E comment 10(b)-2 (the obtainer) versus Rel. 33-7856 n.25 (the actor).
21. **No reported American decision construes the required form of a third-party trading authorization.** The phrase appears in exactly three opinions, in none of which the form is discussed.
22. **No Washington court has construed WAC 460-24A-220(5).**
23. **No case or SEC action in which a user-entered parameter derived from a published source was attributed back to the source.** And no authority holds a publisher responsible for what readers did with published securities numbers — every located authority runs the other way.
24. **No authority on help text, tooltips, worked examples or "see chapter 4" pointers inside a securities product as distinct from a recommendation.** CourtListener returns zero for every formulation.
25. **No authority on a party that enables access to a third party's securities list without hosting, mirroring or selecting it.**
26. **No case in which a technology or platform party was charged as aider/abettor of, or as a cause of, an *unregistered adviser's* violation.** Eleven query formulations. Limit: SEC administrative orders are outside the CourtListener corpus and the `populate` filter is name-scoped.
27. **No authority credits "not hosting," "not transmitting," "no revenue tied to the counterparty's activity," or an express contractual allocation of a revenue share.** The only located order that squarely presented written role limits — *Ranieri* — disregarded them.
28. **No primary authority on revenue sharing between a name/community owner and a technology provider in a securities-adjacent product.** Re-run generically; nothing new.
29. **No SEC enforcement against a retail trading, charting, screening or technical-analysis software vendor on registration grounds.** Exhaustive eleven-term respondent-name sweep of both SEC listings, plus CourtListener. Every located action against a similarly-named party is fraud or a §12(j) delinquent-filer revocation. The one apparent counterexample — *N2K Trading Academy* — is an Advisers Act **§203(c)(2)(B)** proceeding to **deny a pending registration application**, which reinforces rather than defeats the finding. **An absence of enforcement across a large, visible, decades-old retail market is evidentiary, not authority.**
30. **No FINRA guidance on third-party trading software marketed to retail.** FINRA's own **Regulatory Notice 26-15 (24 July 2026)** asks whether interpositioning guidance is needed — affirmative current evidence that none exists. Comment period closes 25 September 2026: **status-check item.** FINRA Rule 2210 takes "member" as the subject of every operative sentence.
31. **No US court has articulated a legal test for GPL derivative scope.** Six opinions in the entire CourtListener corpus mention "GNU General Public License"; exactly one — *Progress Software* — addresses derivative-or-separate, and declines to decide.
32. **No authority on whether a GPL program's ingestion of third-party configuration data creates licence entanglement.** The licence is silent; the FSF disclaims reach; no court has addressed it.
33. **No Washington authority holds that a written or clicked electronic acknowledgment satisfies RCW 9.73.030** in place of a recorded announcement. The only statute located that expressly blesses written prior consent is Connecticut's §52-570d(a)(1) — and its text is different.
34. **Vermont has no all-party recording statute.** Its appearance on such surveys rests on state-constitutional decisions binding state actors, not private parties. **Oregon** is one-party for telecommunications and notice-based for in-person; **Nevada** is one-party in person and all-party only by judicial construction for telephone; **Michigan**'s participant exemption is contested; **Connecticut**'s all-party rule is civil and telephonic only; **Delaware** has two statutes pointing in opposite directions. Several "50-state survey" propositions do not survive contact with the statute book.
35. **No derived-data definition is published by NYSE for its proprietary products, by CTA/CQ, or by OPRA.** NYSE's position is the opposite of a safe harbour: information "derived from" NYSE Data Products is prohibited except as Exhibit A allows, at NYSE's "sole discretion."
36. **No enforcement precedent against a downstream market-data redistributor was located.** The one on-point civil action is vendor-versus-customer (*Bloomberg v. UBS*). The practical enforcement mechanism is the contractual audit.

## 5.4 · ◇ Verification queue

| Item | Why ◇ | Stream |
|---|---|---|
| **Restatement (Third) of Agency §8.06** | ALI text paywalled; quoted from a court that reproduces it verbatim | 3 |
| ***Aerotek*** reporter pagination (624 S.W.3d 199) | case.law coverage ends before this volume; quoted by slip-opinion page | 3 |
| ***Lacoff v. Buena Vista Publishing***, 183 Misc. 2d 600 (2000) | Text not retrieved (CourtListener 401; Cloudflare 202; case.law 404). **Known only through a federal court's parenthetical, and it is the only authority holding the other way from *Keimer*. Do not brief this without producing the opinion.** | 4 |
| ***Quick America Corporation*** (June 1993) | Text unretrieved; compensation condition recovered only through the 1996 Schwab quotation. **Date conflict unresolved** — 18 June (1996 source) vs 28 June (2020 source) | 5 |
| **IA-1092, 52 Fed. Reg. 38400** | Not retrievable from a primary host; **the SEC's own scan has an unusable text layer on page 10**, the page carrying the entire compensation element | 1, 4 |
| ***Datastream*** predecessor letters — EJV Partners/UniVu (1992), Wilson & Associates (1988), Butcher & Singer (1987), and nine others | Cited by name inside *Datastream*; not individually retrieved. **◇ *Wilson*'s "no subjective factors built into the formulae" is the best-fitting sentence located for empty fields, and it is a 1988 staff position reported inside a 1993 letter** | 1, 2, 4 |
| ***Evare, LLC*** (1998), ***Broker-to-Broker Networks*** (2000), ***StockPower*** (1998), ***e-Media*** (2000), ***Prescient Markets*** (2001) | Exist by SEC-published citation; texts not on sec.gov; the Georgetown collection returns 410 Gone. **Method note: render-and-vision is now proven end-to-end on the EDGAR paper-reference archive — if an accession number can be obtained, the text is recoverable** | 5 |
| **Schwab client-facing Terms of Use** | `/legal/terms-of-use` returns 404. **No Schwab clause on unauthorized third-party client-side access, scraping, aggregators or credential sharing obtained.** Developer-side clauses are on the record | 5 |
| **Schwab agreement currency** | "May 2023" on its face; no revision history published | 5 |
| ***State v. Fields*** status | No Washington Supreme Court review located; absence of a hit is not proof of absence | 6 |
| ***Commonwealth v. Byrd***, 235 A.3d 311 (Pa. 2020) | pacourts.us 403 to every client. **Its holding on whether knowledge of recording is "prior consent" is directly analogous to the Washington question** | 6 |
| **N.Y. Gen. Bus. Law §527-a enactment dates** | nysenate.gov behind Cloudflare; no history line on the page; public.leginfo.state.ny.us unreachable. **Text verbatim; dates not verified** | 7 |
| **Interactive Brokers' operative market-data terms on third-party display** | Publishes exactly one downloadable agreement; the rest are JS-gated. **The pass-through inference is verified for Alpaca, not for IBKR** | 8 |
| **12 C.F.R. Part 1033 status** | Final rule 89 FR 90989 stands, but a "Personal Financial Data Rights Reconsideration" proposed rule (22 Aug 2025) is pending. **Re-check before relying on the analogy** | 3 |
| ***SFC v. Vizio*** post-remand | Federal case terminated on remand 13 May 2022; no California appellate opinion located | 9 |
| **NASAA model rules** | nasaa.org 403 to every automated request. No NASAA text is quoted anywhere in this register | 4 |
| **Nevada, Michigan, New Hampshire, Massachusetts, Montana, Pennsylvania, Oregon, Illinois statutory text** | Official legislature sites geo-block or 403 this machine. Text taken verbatim from published opinions reproducing it; **risk that a quoted version predates a later amendment is flagged per entry** | 6 |

## 5.5 · Access notes for reproduction

Recorded because several cost real time and two are new capabilities.

- **Render-and-vision is a fully reliable substitute for OCR on SEC scans.** Fourteen consecutive pages of a 1996 fax-quality scan, plus a 2020 ScanSnap scan, were read at 200–300 dpi without one unreadable page. **This should now be the default route for any pre-2002 letter in the EDGAR paper-reference archive** (`/Archives/edgar/vprr/<YY><NN>/<YYNNNNNN>.pdf`), which has no browsable index but is readable end-to-end.
- **sec.gov and schwab.com want opposite User-Agents.** SEC needs a declared UA with a contact address; Schwab's Akamai edge 403s that and needs a browser UA. On SEC, check response **size** — the block page is ~53 KB and is served with both 200 and 404.
- **Angular SPAs with router-guarded deep links** (Schwab's developer portal) cannot be reached by URL alone; the in-app click path is required. Attacking the JS bundle for API paths is a dead end — base URLs come from a runtime config and every path falls through to the shell.
- **`sec.gov/divisions/marketreg/mr-noaction.shtml` now 301s** — use `-L`. The legacy index is live, complete and greppable; the modern path 404s.
- **SEC administrative-proceeding year archives paginate at 100 rows**; grepping page 0 alone produces false negatives.
- **eCFR** web pages 302-redirect; the versioner API works with `--compressed`. **Official Interpretations are reachable as `?part=1005&appendix=Supplement%20I%20to%20Part%201005`, not as a section.** A past date retrieves rescinded text; a 404 is a usable status check.
- **federalregister.gov's open API** is the cheapest way to status-check a CFR part with no key: `/api/v1/documents.json?conditions[cfr][title]=&conditions[cfr][part]=`.
- **static.case.law** star-pagination anchors are `<a … class="page-label">*NNN</a>` — **the class is not the first attribute**, so a regex anchored on `<a class="page-label"` silently matches nothing. Use `<a [^>]*class="page-label"`.
- **CourtListener** v4 `/search/` is open; `/opinions/` and `/dockets/` need a token; opinion HTML pages return an empty 202. **Rate-limited at 5 requests/minute — a 429 returns a JSON body, not an HTTP error page.** Bare parentheses inside a quoted phrase silently return COUNT 0.
- **Washington session laws** are directly browsable at `lawfilesext.leg.wa.gov/biennium/<yyyy-yy>/Pdf/Bills/Session%20Laws/{House,Senate}/`. There is no chapter→bill index, but filtering to the session's bill-number range and grepping ~200 PDFs resolves a chapter cite in about two minutes. **This is the only free route to a Washington amendment's actual text.**
- **DFI:** interpretive statements at `dfi.wa.gov/industry/securities-act-interpretive-policy-statements`, reached from `/laws-and-enforcement` → `/laws-enforcement/interpretations`. Every intuitive path 404s. Enforcement: 2015–2023 at `dfi.wa.gov/{YEAR}-division-securities-enforcement-actions`; 2024 at `/section-main-pages/2024-…`; **2025–2026 only as an HTML table at `/securities-enforcement-actions` paged by `?page=1..6`**.
- **FINRA's site search and Notices listing filter do not work** — `?search=` and `?search_api_fulltext=` are silently ignored, and `/search` is client-rendered. Individual notices and rules **do** render server-side at their own URLs, so targeted retrieval works.
- **Geo-blocking is the dominant obstacle for state legislature sites** from a European IP: ilga.gov, malegislature.gov, oregonlegislature.gov, leg.mt.gov, legis.state.pa.us and gencourt.state.nh.us refuse at the TCP level; leg.state.nv.us, legislature.mi.gov, pacourts.us, nysenate.gov and mass.gov return 403. **The workaround that works is taking verbatim statutory text from published court opinions that reproduce it** — a primary source — via static.case.law and court PDFs located through the CourtListener search API. The `r.jina.ai` text proxy also succeeded against ilga.gov where curl and WebFetch both failed.
- **Search engines are useless for this work.** DuckDuckGo serves anti-bot challenges; Bing-via-proxy returns encyclopedia results. Every substantive source in this register was found by index-walking or by structured API.
- **The session WebSearch budget (200 calls) was exhausted before most streams began.** Where that limits the breadth of a negative finding, the finding says so.

---

# PART 6 — WHAT REMAINS GENUINELY OPEN

## 6.1 · The four questions the register cannot answer

**A · The solicitation residue.** *Neovest* found solicitation on ordinary software marketing and recorded independent-software branding as consistent with it. The staff letter line's condition is "do not solicit **securities transactions**"; *Neovest*'s finding is "solicitation of **customers for those services**." **No located authority reconciles the two, and none defines the second.** The only primary text that draws the distinction is a *representation by counsel* in the *Neptune* incoming letter, adopted by the staff only through the general representations formula. This is the exposure no architecture reaches.

**B · Whether composing an order is "more than routing a message."** The 1996 Schwab letter's carve-out is "other than by **routing messages**"; *CommandTRADE*'s is "other than by providing the functionality of **order transmission**". The runtime composes quantity, order type, price band, re-peg rule, time-in-force and account from the member's own policy, and then transmits. **Nothing located decides whether that is transmission or something more**, and the answer determines whether the strongest supporting letters reach the configuration at all.

**C · Whose instruction an order is, when the member authorises it in one party's surface and a second party's software transmits it.** *Coinbase* reserves "providing trading instructions to third parties" as broker conduct without supplying a test for attribution. Reg E and Part 1033 locate the duty by function, not by surface, but they are consumer-payment regimes and the transfer is untested. **P6 flagged this as the architecture's hardest point; P7 narrowed it and did not close it.**

**D · Whether the 20% allocation survives contact with conduct.** *Ranieri* had counsel-drafted agreements with express role limits and express prohibitions on the very conduct, and they were disregarded because the mechanism and the monitoring were absent. The allocation to "name and member relationship, not for any list or selection" will be worth what the Company's conduct makes it worth — and **no authority credits such an allocation**, while one primary source expressly declines to.

## 6.2 · Before anything is built

These are the items the register says should be settled first, in order of how much else depends on them.

1. **Decide BYO-token or redistribution licence for market data.** Every other market-data question — display fees, subscriber agreements, Professional/Non-Professional qualification, audit exposure — changes shape depending on this one choice, and the configuration does not say which it is. If members supply their own tokens and the product never holds the data, Tiingo's Developer Program is a clean published no-fee path.
2. **Re-specify the journal to record derived values and member-authored terms only, with no vendor-sourced price fields.** As described it stores a complete timestamped sequence — the thing every derived-data test excludes — in a compliance-retention system that Tiingo §1.6(b) requires to be purged on lapse.
3. **Adopt the recorded-announcement consent script for onboarding.** A click before recording starts is not what RCW 9.73.030(3) asks for, the violation is criminal, and the recording would be inadmissible for the very purpose it exists to serve. Part 7, S6 sets out the wording and placement.
4. **Fix the trial-discount notice to Illinois' threshold** — 3 days before the cancellation deadline where a trial or promotional period lasts 15 days or more. It is the binding constraint, tighter than California and New York.
5. **Do not relicense the runtime to AGPL-3.0.** GPL-3.0-only is what keeps a hosted engine outside any source-disclosure duty, and that protection does not depend on winning the derivative-work question.
6. **Add the 1996 Schwab letter's condition 1 disclosure** — that the member is a brokerage customer of the broker and not of the Company — to the marketing. It is the only located primary-source *cure* for the customer-solicitation problem, it is a condition the Company can adopt unilaterally, and it does not appear in the frozen configuration.

## 6.3 · The three questions counsel should be asked first, in order

**1 · After *Neovest* ¶14, is there any marketing posture that answers the solicitation finding — and if not, what does that mean for a retail product that must be marketed at all?**
*Why first:* it is the one exposure no architectural choice touches, the Commission recorded the configuration's own answer as consistent with the finding rather than a defence, and every other question is downstream of whether the product can be sold. Ask counsel to price the residual, and to say whether the 1996 letter's condition 1 disclosure, the *Neptune* formulation, and a strict "no securities-transaction solicitation" rule together amount to anything — or whether the answer is that a paid retail membership is an "ongoing securities-business relationship" within Rel. 34-90112's own words.

**2 · Is the runtime's composition-and-transmission step "more than routing messages," and does that put it outside the 1996 Schwab letter, *CommandTRADE* and *S3 Matching*?**
*Why second:* those three letters are the best support that exists, and all three are conditioned on the intermediary doing no more than transmitting. If composition is inside "order transmission," the configuration sits within the strongest authorities in the register — including one (*CommandTRADE*) that cleared unattended automatic transmission of complete orders. If it is outside, the support largely falls away and the position rests on *Coinbase* and *Mapp* alone. Ask counsel which way the line runs and what design changes would move it.

**3 · Does a runtime-rendered, member-confirmed, exportable document satisfy WAC 460-24A-220(5)'s "written third-party trading authorization from the client" — and if it does, does anything still require a natural-person grantee?**
*Why third:* the chain through RCW 1.80.060(3) is complete and has no contrary authority, but it has never been tested, it turns on an undefined word ("law"), and it does not answer FINRA 3260(b)'s "stated individual or individuals" or 17a-3(a)(17)(ii)'s "each natural person." This is the one question where a concrete document can be produced and put in front of counsel today, and where a wrong answer is discoverable before launch rather than after.

---

---

# PART 7 — THE ADDENDUM SUB-REGISTERS (S6–S10)

Five gaps no earlier commission covered. **These are not securities law**, and the securities analysis above does not govern them. Tracks 6 and 7 are checklist-shaped; Tracks 8–10 are research-shaped. Full registers follow in sequence after Part 1.

**S6 — Recording the onboarding session (Washington two-party consent).** RCW 9.73.030 requires all-party consent; violation is a gross misdemeanour and the recording is inadmissible. Only **audio** is covered. **A click is not sufficient**: §.030(3) requires the announcement to be *in* the recording, and *State v. Fields* (2024) treats that as strict and rejects earlier out-of-recording notice. *Modica* holds that notice does not defeat privacy. *Fowler*'s place-of-recording rule is displaced where the recording is made at a Washington party's request or with intent that it be used in Washington. Deliverable: the exact consent wording and placement, and the all-party-state table with six survey propositions corrected.

**S7 — Subscription and auto-renewal law.** The FTC's 2024 rule is **vacated**; the recodified 1973 rule does not reach this product; **ROSCA §8403 is the floor**. Two of the commission's citations are wrong. **Illinois' 15-day trial threshold is the binding constraint.** On who is the "seller": every instrument identifies the duty-bearer functionally — who offers, who sells, who charges — and never by status; the FTC refused to let contractual allocation shift it, and charged the billing platform in *Amazon* and *Google*. Deliverable: a 28-item checklist marked by which party carries each duty.

**S8 — Market data licensing.** Six data flows classified as display, derived or non-display. **Cboe's 1 April 2026 definition — "not *solely* in support of display" — is the most important single finding.** Tiingo offers two mutually exclusive architectures (BYO-token versus redistribution licence) and the choice governs everything else. **The journal is the derived-data problem.** The Professional/Non-Professional definition is wired to §202(a)(11), tying the market-data analysis to the rest of the register. Enforcement runs through contractual audits, not litigation.

**S9 — GPL-3.0 and the engine boundary.** **GPL-3.0-only rather than AGPL-3.0 is the load-bearing fact**: §0's "mere interaction … with no transfer of a copy is not conveying," and GPL-3.0 §13 is a compatibility clause, not AGPL §13's network obligation. A hosted engine that never conveys has no duty even if the combination were one work. US case law on derivative scope is close to non-existent — one opinion, declining to decide. The FSF's positions are steward commentary no court has adopted. Deliverable: thirteen boundary conditions as engineering requirements, each marked as resting on licence text, steward commentary, or inference.

**S10 — Contracting with a possibly-advisory counterparty.** Four routes with different scienter standards: §209(f) (recklessness, confined to Commission penalty actions), §209(d) (injunction, **no stated mental element**), §21C/§203(k)(1) (**negligence**, no relationship element — the route that bites), and §208(d) (**inapplicable** to a third party's violation). *Ranieri* is the "disclaimers disregarded" authority; *Apuzzo* removes causation as an answer; *Coburn* shows the primary violator need never be charged. **The most robust defence is that the counterparty is not an adviser**, not separation from it. Deliverable: what the Company must **not** do, split strictly between what the authorities support and what is merely prudent.

---

---

# PART 1 — AUTHORITY REGISTER PER TRACK

The ten per-track registers follow in commission order. Each carries its own entries, adverse register, direct answers, negative findings and search log, and each marks carried-forward P6 material.

**Contents**
- **S1** — Signal-only: does the engine's output change the analysis?
- **S2** — The runtime as the party that "decides"
- **S3** — Consent obtained in a third party's surface, recorded by the runtime
- **S4** — No-preset onboarding and the published book
- **S5** — The Schwab 1996 letter and the broker-facilitation residue
- **S6** — Recording the onboarding session (Washington two-party consent)
- **S7** — Subscription and auto-renewal law
- **S8** — Market data licensing
- **S9** — GPL-3.0 and the engine boundary
- **S10** — Contracting with a possibly-advisory counterparty


---

<br>

# S1 · TRACK 1 — Signal-only: does the engine's output change the analysis?

# P7 TRACK 1 — Signal-only: does the engine's output change the analysis?

**Research date:** 5 September 2026. Consolidated, self-contained: carries forward every still-valid P6 Track 1 entry. All URLs fetched and read this run unless marked ◇ or `[CARRIED FROM P6]` with a P6-verification note.

**Headline answer, stated up front.** On the Advisers Act status axis, **no**. Two things were found that P6 did not have, and they cut in opposite directions:

1. ***R&W* distinguishes by TIMING, generality and a CEA-specific "solely incidental" clause — never by the content or granularity of the output.** And the fact that closes the question: **the R&W software's own output was already signal-shaped** — instrument + side, to be acted on at the next open, with no quantity, no price, no order type — and the Fifth Circuit called it "recommendations" throughout. *Weiss* is worse: the Commission recorded that the signals "**often only identify the investment**" and were sent "**only when [Weiss] purports to see an investment opportunity arise**," then found §202(a)(11) met in one sentence.
2. **Content DOES matter in one live line of authority — but it is Exchange Act / FINRA "recommendation" doctrine, not Advisers Act status.** NASD NTM 01-23 (still current; adopted into the Commission's Reg BI framework in 2019) makes "**content**, context and manner of presentation" the test, distinguishes a communication that "suggests the purchase, sale, or exchange of a security" from one "**simply providing objective data**," and expressly says a **customer-requested price-point alert**, "without more," is not a recommendation. That is the authority the commission asked for, and it exists.

So: signal-only buys **nothing on the publisher's-exclusion axis** and **something real, but partial and non-dispositive, on *Coinbase* factor (9)** — and what it buys there comes from *who authored the trigger criteria*, not from the size of the payload.

---

## S1 — Track 1 authority register

### A. The pivotal case, read closely

**S1-1 · *R&W Technical Services, Ltd. v. CFTC*, 205 F.3d 165 (5th Cir. 2000)** — https://static.case.law/f3d/205/html/0165-01.html
`[SUPERSEDES P6 entry 27]` · Court of Appeals · decided 24 Feb 2000 · Status: good law; no negative history located.

**The facts, verbatim, 205 F.3d at 168 — the entry P6 did not surface:**
> "This software required users to provide a source of real-time financial data which the software analyzed each day. **Based on preset formulas and the real-time data, the software made buy and sell recommendations that the user was advised to act upon at the open of trading the next day.**"

**The timing holding, at 174-75:**
> "The Court defined regular dissemination to require that 'there is no indication that [dissemination] ha[s] been timed to specific market activity.' In this case, **the petitioners' recommendations were provided by software that was programmed to 'speak' only when certain market conditions were met. Thus, the petitioners' recommendations were timed to particular market activity and not 'regularly' disseminated.** Moreover, a publication is only of 'general' dissemination when it is circulated for sale to the general public at large in an open market. The record here indicates that the petitioners advertised that the software would only be sold in limited numbers."

**The primary holding — a CEA-only textual ground, at 174:**
> "However, the publisher exception only applies if the CTA's 'furnishing of such services … is solely incidental to the conduct of their business.' … **the exclusion still protects incidental publishers of such advice, such as general magazines and newspapers, even if it does not exclude publishers who specifically concentrate on commodities and futures advice.**"

**The impersonality finding, at 175 — the court agreed with petitioners on this and it did not save them:**
> "**The petitioners in this case were impersonal publishers. The software they offered provided impersonal recommendations as to the buying and selling of commodities.** Such recommendations were not based on any knowledge regarding the user's personal financial situation. Admittedly, this is a more sophisticated form of publishing than a weekly newsletter, but in substance it is the same as if the petitioners operated their proprietary software at home and faxed reports to their subscribers on a daily basis."

**And at 172-73:**
> "This expensive software had no purpose except as a device for choosing which trades to make."

· **What it establishes (the commission's explicit question, answered):** the court's publisher-exception analysis runs on exactly three grounds — (i) "solely incidental," a CEA textual clause with **no Advisers Act analogue**; (ii) **timing** to market conditions; (iii) **generality** of circulation. **The content, form, granularity or completeness of the output plays no role in any of the three.** Content enters only at the threshold — is this output *about the advisability of trading a named instrument* — and R&W's own output cleared that threshold while carrying no quantity, no price, no order type.
· **Supports:** the impersonality position at 175, and (analogically) the characterisation of signal-generating software as impersonal publishing. **Undercuts:** signal-only as a status-changing fact. This is the sharpest adverse authority in the register and its own facts are closer to the frozen engine than P6 recorded.
· **Relevance: 5**
· *Application note:* the frozen engine fires when the member's rule is met; that is the *R&W* trigger profile exactly, and the payload reduction from order terms to `{instrument, side, fired_at}` moves it *toward* R&W's facts, not away from them.

### B. The publisher's exclusion — controlling authority

**S1-2 · *Lowe v. SEC*, 472 U.S. 181 (1985)** — https://static.case.law/us/472/html/0181-01.html
`[CARRIED FROM P6, re-verified this run]` · Supreme Court · 10 June 1985 · good law.
> at 206: "Presumably a 'bona fide' publication would be genuine in the sense that it would contain disinterested commentary and analysis as opposed to promotional material disseminated by a 'tout.' Moreover, publications with a 'general and regular' circulation would not include 'people who send out bulletins from time to time on the advisability of buying and selling stocks' … or 'hit and run tipsters.'"
> at 209: "Although the publications have not been 'regular' in the sense of consistent circulation, the publications have been 'regular' in the sense important to the securities market: **there is no indication that they have been timed to specific market activity, or to events affecting or having the ability to affect the securities industry.**"
> at 210: "**The content of the publications and the audience to which they are directed in this case reveal the specific limits of the exclusion.** As long as the communications between petitioners and their subscribers remain entirely impersonal and do not develop into the kind of fiduciary, person-to-person relationships … we believe the publications are, at least presumptively, within the exclusion."
> at 210 n.57: "It is significant that the Commission has not established that petitioners have had authority over the funds of subscribers; that petitioners have been delegated decisionmaking authority to handle subscribers' portfolios or accounts; or that there have been individualized, investment-related interactions between petitioners and subscribers."

· **Establishes:** the exclusion's three axes — bona fides, impersonality, general-and-regular circulation, the last of which is a **pure timing test**. The sentence at 210 is the only place in the case where "content" is used as an operative word, and it distinguishes *factual information and general commentary* from *personalized advice* — not full order terms from bare signals.
· Supports on n.57 (no credentials, no delegated decisionmaking, no individualized interaction). **Undercuts on the timing prong, which no payload reduction reaches.** · **Relevance: 5**

**S1-3 · *Jonathon Hendricks*, SEC Staff letter, IM Ref. No. 20151261230 (Jan. 26, 2015)** — https://www.sec.gov/divisions/investment/noaction/2015/jonathon-hendricks-012615-202a.htm
`[NEW]` · staff response declining to respond, with substantive guidance · 26 Jan 2015 · the most recent staff restatement of the exclusion located.
> "We decline to respond to your request because it does not contain adequate facts and legal analysis to enable us to evaluate it thoroughly. … **The staff has generally declined to express an opinion as to whether a person qualifies for this exclusion, as interpreted by the United States Supreme Court, because this is a factual and not a legal determination.**"
> "To qualify for the section 202(a)(11)(D) exclusion, the publication must be: (1) of a general and impersonal nature, in that the advice provided is not adapted to any specific portfolio or any client's particular needs; (2) 'bona fide' or genuine …; and (3) of general and regular circulation, in that it is **not timed to specific market activity** or to events affecting, or having the ability to affect, the securities industry."
> "**A person who provides advice about securities through a website such as the one described in your letter could similarly qualify for the section 202(a)(11)(D) exclusion, provided the three criteria listed above are met.**"

· **Establishes:** the *Zurl* three-prong test is still the staff's operative formulation twenty years on, and it applies to internet-delivered products. Also confirms, in 2015, that **no staff comfort is obtainable** on the exclusion. · Supports: an internet/software channel is not itself disqualifying. **Undercuts:** prong 3, again. · **Relevance: 4**

**S1-4 · *Alfred A. Zurl*, SEC Staff letter (Aug. 7, 1995)** — https://www.sec.gov/divisions/investment/noaction/1995/alfredzurl080795.pdf
`[CARRIED FROM P6]` · same three-prong restatement; "The staff generally declines to express an opinion whether a person qualifies for the exclusion because this is a factual and not a legal determination." · Undercuts on prong 3. · **Relevance: 3** (downgraded from P6's 4 — *Hendricks* is the later and better citation for the same proposition).

**S1-5 · *SEC v. Wall Street Publishing Institute, Inc.*, 851 F.2d 365 (D.C. Cir. 1988)** — https://static.case.law/f2d/851/html/0365-01.html
`[CARRIED FROM P6]` · at 371: "While it is true that after *Lowe*, the Stock Market Magazine cannot be considered an investment adviser within the meaning of the Investment Advisers Act, we do not think that the feature articles are necessarily immune from all regulation." · Winning the exclusion removes **status** exposure only. · **Relevance: 3**

**S1-6 · *Financial Planning Ass'n v. SEC*, 482 F.3d 481 (D.C. Cir. 2007)** — https://static.case.law/f3d/482/html/0481-01.html
`[CARRIED FROM P6]` · at 483: "We agree, and we therefore grant the petition and vacate the final rule." · The SEC cannot enlarge a §202(a)(11) exclusion by rule. · Undercuts any expectation of a software carve-out arriving administratively. · **Relevance: 3**

### C. The condition-met notification line — the new material

**S1-7 · NASD Notice to Members 01-23, "Online Suitability — Suitability Rule and Online Communications" (Apr. 2001)** — https://www.finra.org/rules-guidance/notices/01-23
`[NEW]` · SRO policy statement · filed with the SEC 19 Mar 2001, effective on filing under §19(b)(3)(A) and Rule 19b-4(f)(1) · **Status: current.** Relied on by FINRA in Regulatory Notice 11-02 n.11 (2011) and Regulatory Notice 12-25 nn.24 & 42 (2012), and cited by the **Commission** in the Reg BI adopting release, 34-86031 at 79 n.161 (2019).

**The framework:**
> "the 'facts and circumstances' determination of whether a communication is a 'recommendation' requires an analysis of the **content, context, and presentation** of the particular communication … An important factor in this regard is whether — given its content, context, and manner of presentation — a particular communication … **reasonably would be viewed as a 'call to action,' or suggestion that the customer engage in a securities transaction.** … in general, the more individually tailored the communication to a specific customer or a targeted group of customers about a security or group of securities, the greater likelihood that the communication may be viewed as a 'recommendation.'"

**The screening example — NOT a recommendation:**
> "A member provides research tools on its Web Site that allow customers to screen through a wide universe of securities … and to request lists of securities that meet broad, objective criteria … **the algorithms for these tools are not programmed to produce lists of securities based on subjective factors that the member has created or developed**, nor do the algorithms … produce lists that favor those securities in which the member makes a market."
> "**Customers use and direct this tool on their own.** Search results from this tool may rank securities using **any criteria selected by the customer**."

**The alert example — NOT a recommendation:**
> "A member allows customers to subscribe to e-mails or other electronic communications that alert customers to news affecting the securities in the customer's portfolio or on the customer's 'watch list.' Such news might include price changes, notice of pre-scheduled events … **The customer selects the scope of the information that the firm will send to him or her.**"

**The content guideline (guideline 3):**
> "Members should scrutinize any communication to a customer that **suggests the purchase, sale, or exchange of a security — as opposed to simply providing objective data about a security** — to determine whether a 'recommendation' is being made."

**Footnote 18 to that guideline — the single most on-point sentence located in the whole track:**
> "where a customer **affirmatively requests to be alerted (by e-mail or pop-up screen) when a security reaches a specific price-point**, when a company issues an earnings release, or when an analyst changes his or her recommendation of a particular security, the broker/dealer's decision to send the customer the requested information, **without more, would not necessarily trigger a suitability obligation.**"

**Footnote 14:**
> "a member generally would not be viewed as making a 'recommendation' when, pursuant to a customer's request, it sends the customer (1) electronic 'alerts' (such as account activity alerts, market alerts, or price, volume, and earnings alerts) … **as long as neither — given their content, context, and manner of presentation — would lead a customer reasonably to believe that the firm is suggesting that the customer take action** in response to the communication."

**Adverse guidelines in the same document:**
> "**A member cannot avoid or discharge its suitability obligation through a disclaimer** where the particular communication reasonably would be viewed as a 'recommendation' given its content, context, and presentation."
> "The member should perform this review **regardless of whether the decision to send the information is made by a representative employed by the member or by a computer software program** used by the member."

· **Establishes:** (i) **content is one of three named axes**, and the line drawn is *suggests a transaction* vs *objective data*; (ii) a **customer-defined condition-met alert is on the non-recommendation side**, expressly including a price trigger; (iii) what puts the screening example on the safe side is **whose criteria** the algorithm runs — the customer's, not the firm's; (iv) disclaimers do not help and software authorship does not help.
· **Supports** the frozen configuration on the two facts that actually carry it: the member sets the criteria, and the member requested the alert. **Undercuts** it on the payload: a `side: buy` field is not "objective data about a security"; it is the shape of a call to action. And the disclaimer sentence forecloses "the panel says this is not advice" as an answer.
· **Relevance: 5**
· *Application note:* this is the closest authority in existence to the frozen engine's signal, and it lands on the favourable side **only** where the criteria are the customer's own — which relocates the whole argument onto authorship, exactly as the commission suspected.
· **Domain caveat that must be stated:** NTM 01-23 governs whether a **broker-dealer made a recommendation triggering suitability**. It is not an Advisers Act status test and does not purport to be. Its relevance to *Coinbase* factor (9) is direct; its relevance to §202(a)(11) is analogical only.

**S1-8 · FINRA Regulatory Notice 11-02, "Know Your Customer and Suitability" (Jan. 2011), at 2-3** — https://www.finra.org/rules-guidance/notices/11-02
`[NEW]` · SRO notice · current.
> "a communication's **content, context and presentation** are important aspects of the inquiry … whether — given its content, context and manner of presentation — a particular communication … reasonably would be viewed as **a suggestion that the customer take action or refrain from taking action** regarding a security or investment strategy. In addition, the more individually tailored the communication is to a particular customer or customers about a specific security or investment strategy, the more likely the communication will be viewed as a recommendation. Furthermore, **a series of actions that may not constitute recommendations when viewed individually may amount to a recommendation when considered in the aggregate.** **It also makes no difference whether the communication was initiated by a person or a computer software program.**"

· **Establishes:** FINRA's 2011 re-statement of the same test, with two additions that are adverse: **aggregation** (a signal plus a composed order plus a one-tap panel may be assessed together, not field by field) and **software-neutrality** (the *Vartuli* proposition restated by the SRO). · Supports on content-and-tailoring; **undercuts** on aggregation and on any "it's only software" framing. · **Relevance: 4**

**S1-9 · FINRA Regulatory Notice 12-25, "Suitability" FAQ (May 2012), n.42** — https://www.finra.org/rules-guidance/notices/12-25
`[NEW]` · SRO notice · current.
> "In *Notice to Members 01-23* (Apr. 2001), FINRA explained 'that a portfolio analysis tool that merely generates a suggested mix of genera[l] classes of financial assets' would not, by itself, trigger a suitability obligation …; **however, the more a general class is narrowed (e.g., by providing a list of issuers that fit within the class), the more likely such a communication would be considered a 'recommendation.'**"

· **Establishes:** a **specificity gradient** running from asset class → narrowed list → named issuer. It is a content gradient, and it runs the wrong way for signal-only: a signal naming one instrument sits at the specific end, whatever else it omits. · **Undercuts.** · **Relevance: 4**

**S1-10 · Regulation Best Interest, Exchange Act Rel. No. 34-86031 (June 5, 2019), at 79-80 & n.161** — https://www.sec.gov/files/rules/final/2019/34-86031.pdf
`[NEW]` · Commission adopting release, final rule (17 C.F.R. §240.15*l*-1) · in force.
> "Factors considered in determining whether a recommendation has taken place include whether the communication '**reasonably could be viewed as a "call to action"**' and '**reasonably would influence an investor to trade a particular security or group of securities.**' The more individually tailored the communication to a specific customer or a targeted group of customers about a security or group of securities, the greater the likelihood that the communication may be viewed as a 'recommendation.'"
> n.161: "*See* Proposing Release at 21592-21593; *see also* **NASD Notice to Members 01-23, Online Suitability – Suitability Rules and Online Communications (Apr. 2001)** …"
> at 80: "We believe that what constitutes a recommendation is highly fact-specific and not conducive to an express definition in the rule text."

· **Establishes:** the **Commission itself** adopted the FINRA call-to-action framework, by citation to NTM 01-23, in a 2019 final-rule adopting release. That elevates S1-7 from SRO guidance to the Commission's own operative standard for "recommendation" under the Exchange Act. It also confirms the Commission **declined to define** the term or to enumerate exclusions. · Supports (the framework is content-sensitive and the Commission owns it); undercuts (no bright line, no safe harbour). · **Relevance: 5**

**S1-11 · Reg CF Rule 402(b)(2)-(3), 17 C.F.R. §227.402** — eCFR versioner API, title 17 part 227, snapshot 2026-09-01
`[NEW]` · Commission rule · in force.
> (b)(2): "Apply **objective criteria** to highlight offerings … the criteria may include … the type of securities being offered; the geographic location of the issuer; the industry or business segment of the issuer; the number or amount of investment commitments made … *provided that* **the funding portal may not highlight an issuer or offering based on the advisability of investing in the issuer or its offering**"
> (b)(3): "Provide search functions or other tools that investors can use to search, sort, or categorize the offerings … according to objective criteria where … (ii) **The criteria may not include, among other things, the advisability of investing in the issuer or its offering, or an assessment of any characteristic of the issuer, its business plan, its key management or risks associated with an investment.**"

· **Establishes:** the only place located where the Commission has **drawn the line by the content of the criterion in rule text** — objective factual attributes on one side, advisability and assessment on the other. It is the cleanest statement anywhere that a *filter* is not *advice* — and equally the cleanest statement that the moment the criterion encodes advisability, the safe harbour is gone.
· **Supports** a universe filter on objective attributes. **Undercuts** a trigger whose output is `side` — that is a statement about advisability, not an attribute of the instrument.
· **Domain caveat:** this is a **funding-portal** conditional safe harbour under Exchange Act §3(a)(80), not an Advisers Act status test, and the rule text itself says "No presumption shall arise" from failing to meet the conditions. · **Relevance: 4**

**S1-12 · Request for Comment on Certain Digital Engagement Practices, Exchange Act Rel. No. 34-92766 (Aug. 27, 2021), File No. S7-10-21** — https://www.sec.gov/files/rules/other/2021/34-92766.pdf
`[NEW]` · Commission request for comment · **no interpretation, no rule.**
> at 12: "**Notifications.** Some digital platforms may use notifications via email, text, or other means … Investors may receive notifications indicating a certain stock is up or down, noting a list of stocks qualifying as top 'movers' … or reminding them that it has been a certain number of days since they last engaged in a trade."
> at ~30: "**The use of a DEP by a broker-dealer may, depending on the relevant facts and circumstances, constitute a recommendation for purposes of Reg BI.** Whether a 'recommendation' has been made is interpreted consistent with precedent under the federal securities laws and how the term has been applied under FINRA rules."
> Question 3.9: "**Are there particular types of DEPs that investment advisers avoid using because they would constitute providing investment advice?** If so, which DEPs and why?"

· **Status, verified:** the follow-on rulemaking — *Conflicts of Interest Associated With the Use of Predictive Data Analytics by Broker-Dealers and Investment Advisers*, 88 FR 53960 (Aug. 9, 2023) — was **formally withdrawn** by *Withdrawal of Proposed Regulatory Actions*, Rel. Nos. 33-11377; 34-103247; IA-6885; IC-35635, 90 FR 25531 (June 17, 2025): "The Commission does not intend to issue final rules with respect to these proposals." **No Commission position on notifications exists.**
· **Establishes:** the Commission identified notifications as the exact question, asked whether they are advice or recommendations, and **has never answered**. · Neither supports nor undercuts; it is the negative finding with a citation. · **Relevance: 4**

### D. The software / data-tool line

**S1-13 · *Datastream International, Inc.*, SEC Staff No-Action Letter (Mar. 15, 1993)** — https://www.sec.gov/divisions/investment/noaction/1993/datastream-international-031593-202a.pdf
`[SUPERSEDES P6 entry 10]` · staff no-action assurance (registration withdrawal permitted) · Status: still cited as current by the Commission in IA-6050 n.29 (2022); not withdrawn.

**The three-part information test:**
> "The staff takes the position that the presentation of securities data or information to subscribers does not constitute furnishing investment advice or an analysis or report within the meaning of Section 202(a)(11) if (i) the information is readily available to the public in its raw state, (ii) the categories of information are not highly selective, and (iii) **the information is not organized or presented in a manner which suggests the purchase, holding or sale of any security or securities.**"

**The four factors:**
> "the staff considered a number of factors including **the sophistication of the users, the degree to which the users themselves perform the calculations, the degree to which the product is prepackaged and not personalized for each customer, and whether the calculations or models are based on traditional or standard calculations.** These factors are relevant in determining whether computer software services function **merely as mathematical tools to facilitate users' own analytical efforts** or whether they involve **the recommendation of securities.**"

**The representations that earned the assurance — the passage P6 did not quote, and it is decisive here:**
> "Datastream's customers **select the criteria** for retrieving data series from the databases and the analytic tools that will be used to manipulate that data and **data delivery is not timed to any specific market activity.** Datastream and its affiliates have **no direct or indirect financial interest in whether a subscriber uses** Datastream data and analytic tools to purchase, sell or hold a particular security."
> "You represent that Datastream **does not attach any value judgment to its data.**"
> Limits: "On the basis of the facts and representations in your letters and **without necessarily agreeing with your legal analysis** … different facts or representations may require a different conclusion."

· **Applied to a bare condition-met message, as commissioned:**
 – **Prong (iii) is failed.** A message carrying `side` is information "organized or presented in a manner which suggests the purchase, holding or sale." A signal fails this prong on exactly the same ground as a complete order ticket; the omitted fields are not what the prong asks about.
 – **Prong (i)** — the raw inputs (prices, yields) are public; the *fired* state is not.
 – **Prong (ii)** — a member-defined universe filter is by construction "highly selective."
 – **Factor 2** ("the degree to which the users themselves perform the calculations") is the one factor that moves with the frozen configuration, and it is a spectrum: the member authors the rule; the engine performs the evaluation.
 – **Factor 3** (prepackaged, not personalized) is favourable — the engine ingests no personal information.
 – **Factors 1 and 4** are neutral-to-adverse: retail members are not Datastream's "investment managers and institutional investors," and proprietary trigger logic is not a "traditional or standard calculation."
 – **The timing representation is fatal and is Datastream's own.** The staff was told, in terms, that "data delivery is not timed to any specific market activity." The frozen engine's entire purpose is that its delivery *is*.
· **Supports** on factors 2 and 3 and on the "mathematical tools to facilitate users' own analytical efforts" dichotomy. **Undercuts** on the three-part test and, decisively, on the timing representation. · **Relevance: 5**

**S1-14 · *Missouri Innovation Center, Inc.*, SEC Staff No-Action Letter (Oct. 17, 1995)** — https://www.sec.gov/divisions/investment/noaction/1995/missouriinnovation101795.pdf
`[CARRIED FROM P6]` · staff no-action assurance.
> "(ii) the Newsletter and summaries will **not offer any endorsement, analysis or recommendation** as to the securities listed therein; (iii) with certain limited exceptions, **all issuers** with a Form U-7 on file … will be included …; and (iv) the listings will be **organized alphabetically** by issuer."
> "Having stated our views, **we will no longer respond to requests for interpretive or no-action letters in this area** unless they present novel or unusual issues."
· A complete, unranked, non-endorsing listing is outside "analysis or report"; the door to further letters closed in 1995. · Supports the *reference-list* limb only if the list is complete and unranked. · **Relevance: 4**

**S1-15 · *RDM Infodustries, Inc.*, SEC Staff letter (Mar. 25, 1996)** — https://www.sec.gov/divisions/investment/noaction/1996/rfminfodustries032596.pdf
`[CARRIED FROM P6]` · **NOT a no-action assurance.** "your letter does not present sufficient facts upon which to make a determination whether RDM must register under the Advisers Act." · Carries no independent weight; cite only for the staff's pointer back to *Datastream*. · **Relevance: 2 (negative)**

**S1-16 · 17 C.F.R. §4.14(a)(9) (CFTC)** — eCFR versioner API, title 17 part 4, snapshot 2026-09-01
`[NEW]` · CFTC rule · adopted 10 Mar 2000 · in force.
> "A person is not required to register under the Act as a commodity trading advisor if: … (9) It does not engage in any of the following activities: **(i) Directing client accounts; or (ii) Providing commodity trading advice based on, or tailored to, the … positions or other circumstances or characteristics of particular clients**"

· **Establishes:** an agency, when it finally codified the line for impersonal trading-advice software, wrote **two** criteria — **direction of accounts** and **personalization** — and **no content criterion at all.** The rule was adopted in direct response to *Taucher v. Born* and mooted the CFTC's appeal (see S1-22).
· **Supports** the frozen configuration on both prongs (no account direction by the engine, no client-tailored advice) — but note the support comes from *personalization and control*, not from payload. **Undercuts** the proposition that content granularity is a recognised axis: the one agency that codified the test omitted it. · **Relevance: 4**

### E. Algorithmic advice — the SEC's own vocabulary

**S1-17 · Rule 203A-2(e), 17 C.F.R. §275.203A-2(e), as amended by IA-6531, 89 FR 24693 (Apr. 9, 2024)** — eCFR versioner API, title 17 part 275
`[CARRIED FROM P6]`
> "'digital investment advisory service' is investment advice to clients that is generated by the operational interactive website's software-based models, algorithms, or applications **based on personal information each client supplies** through the operational interactive website."
· The Commission's current definitional vocabulary for algorithmic advice **builds in a personal-information input requirement**. · Supports on personalization. **Caveat: this is a registration-eligibility rule, not a status test.** · **Relevance: 3**

**S1-18 · Rule 203A-3(a)(3)(ii), 17 C.F.R. §275.203A-3(a)(3)(ii)** — same source
`[CARRIED FROM P6]`
> "'**Impersonal investment advice**' means investment advisory services provided by means of written material or oral statements that **do not purport to meet the objectives or needs of specific individuals or accounts**."
· The only operative federal regulatory definition of impersonal advice. Again: personalization, silent on content. · Supports. · **Relevance: 3**

**S1-19 · IM Guidance Update No. 2017-02, "Robo-Advisers" (Feb. 2017)** — https://www.sec.gov/investment/im-guidance-2017-02.pdf
`[CARRIED FROM P6]` · staff guidance, no legal force.
> at 7: "**Many robo-advisers give clients the opportunity to select portfolios other than those that they have recommended** … a robo-adviser should consider providing commentary as to why it believes particular portfolios may be more appropriate … whether pop-up boxes or other design features would be useful to alert a client of potential inconsistencies."
· As contrast: client selection of a non-recommended option does not, in the staff's view, discharge a provider that has the obligation. · Undercuts any "the member chose it" framing standing alone; supports by contrast where the provider never had the obligation. · **Relevance: 3** (downgraded from P6's 4 — adoption of provider-authored defaults is out of the frozen configuration).

**S1-20 · Commission Interpretation Regarding Standard of Conduct for Investment Advisers, IA-5248 (June 5, 2019), 84 FR 33669** — https://www.sec.gov/rules/interp/2019/ia-5248.pdf
`[CARRIED FROM P6]`
> "an adviser's federal fiduciary duty may not be waived, though it will apply in a manner that reflects the agreed-upon scope of the relationship."
> n.27: "This Final Interpretation also applies to automated advisers."
· Scope can be shaped; status and duty cannot be disclaimed. Pairs with NTM 01-23's disclaimer sentence (S1-7). · **Relevance: 3**

### F. Definition, "in the business," and the mechanical-system line

**S1-21 · Advisers Act §202(a)(11), 15 U.S.C. §80b-2(a)(11)** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-2.htm
`[CARRIED FROM P6]`
> "'Investment adviser' means any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, **as to the value of securities or as to the advisability of investing in, purchasing, or selling securities** … but does not include … (D) the publisher of any bona fide newspaper, news magazine or business or financial publication of general and regular circulation …"
· **The statutory trigger is "advisability of … purchasing, or selling."** That is a binary about subject-matter, not a threshold about completeness. Nothing in the text distinguishes a signal from an order. · Undercuts signal-only by omission. · **Relevance: 5**

**S1-22 · *Taucher v. Born*, 53 F. Supp. 2d 464 (D.D.C. 1999)** — https://static.case.law/f-supp-2d/53/html/0464-01.html
`[SUPERSEDES P6 entry 28 — subsequent history now resolved]`
> at 479-80: "**Because the plaintiffs do not profit from their customers' gains or losses in the market and because the plaintiffs do not exercise judgment on behalf of their customers**, the court concludes that their publications fall within the definition of protected speech."
> findings of fact: "[the] software is incapable of actually executing trades on behalf of a customer, or otherwise performing any trading-related activity other than causing a computer to display a trading recommendation or other piece of information for a user to interpret"; "**a user obtains either a specific trading recommendation or another meaningful output which the user must then interpret by using his own skills and knowledge.**"
· **Status correction to P6:** the CFTC appealed on 19 Aug 1999; before argument it adopted 17 C.F.R. §4.14(a)(9) (10 Mar 2000), **mooting the case**, and the appeal was voluntarily dismissed (*Taucher v. Rainer*, No. 99-5293, 2000 WL 516081 (D.C. Cir. Mar. 28, 2000)). *Taucher v. Brown-Hruska*, 396 F.3d 1168, 1174-76 (D.C. Cir. 2005) later **reversed and vacated** the EAJA fee award, holding the CFTC's defence substantially justified and characterising the district court's foundation as concurring opinions. Source: P6 Track 2b, which retrieved both opinions in full. **Weight: district court only, merits never reviewed, foundation criticised.**
· Supports the flat-fee, no-performance-participation, no-discretion economics and — importantly for signal-only — the "**user must then interpret**" formulation, which a bare signal arguably strengthens because it cannot be acted on without the member's own composition. · **Relevance: 4** (downgraded from P6's 5 on the status findings).

**S1-23 · *CFTC v. Vartuli*, 228 F.3d 94 (2d Cir. 2000)** — https://static.case.law/f3d/228/html/0094-01.html
`[CARRIED FROM P6]`
> at 111: "The customer or 'client' was to be an automaton, mechanically following Recurrence's commands. … **the fact that the system used words as triggers and a human being as a conduit, rather than programming commands as triggers and semiconductors as a conduit, appears to us to be irrelevant for purposes of this analysis.**"
> at 106: "The advice was not personal in the sense that the defendants learned about the needs, resources and sophistication of individual clients" — and registration was still required.
· The dividing line is **whether the human in the loop exercises mind and will**, not who authored the rule and not what the output contained. · Undercuts wherever the member's act is presented as a formality; the *content* of the output is nowhere in the reasoning. · **Relevance: 5**

**S1-24 · *United States v. Elliott*, 62 F.3d 1304 (11th Cir. 1995)** — https://static.case.law/f3d/62/html/1304-01.html
`[CARRIED FROM P6]`
> at 1310, quoting IA-1092: "The staff considers a person to be 'in the business' … if the person: (i) Holds himself out as an investment adviser …, (ii) receives any separate or additional compensation that represents a clearly definable charge for providing advice about securities …, or (iii) on anything other than rare, isolated and non-periodic instances, provides specific investment advice."
· Disjunctive three-factor test; **frequency and specificity of the advice**, not its completeness, is factor (iii). A rule that fires often supplies "specific investment advice" on a periodic basis. · Undercuts. · **Relevance: 4**

**S1-25 · IA-1092, 52 Fed. Reg. 38400 (Oct. 8, 1987)** ◇
`[CARRIED FROM P6]` · **Not retrievable from a primary host** (all sec.gov paths 404; the Federal Register digital archive does not reach 1987). Text used here is quoted verbatim inside *Elliott*, 62 F.3d at 1310, and IA-6050 n.25. · **Relevance: 4** · Flagged for primary verification by counsel.

**S1-26 · *Abrahamson v. Fleschner*, 568 F.2d 862 (2d Cir. 1977)** ◇
`[CARRIED FROM P6]` · quoted in *Elliott*, 62 F.3d at 1310: "many investment advisers 'advise' their customers by exercising control over what purchases and sales are made with their clients' funds." · Control over transactions is a route into "advising" distinct from communication. Supports — no party in the frozen configuration holds trade credentials at the engine layer. · **Relevance: 3**

### G. Attribution, information providers, and the enforcement pattern

**S1-27 · *SEC v. Coinbase, Inc.*, 726 F. Supp. 3d 260 (S.D.N.Y. 2024), slip op. (ECF 105) at 80** — https://storage.courtlistener.com/recap/gov.uscourts.nysd.599908/gov.uscourts.nysd.599908.105.0.pdf
`[CARRIED FROM P6 S4, re-verified verbatim this run]` · district court · 27 Mar 2024.
> "Courts consider a number of factors to determine whether an entity is acting as a broker, including whether it (1) actively solicits investors; (2) receives transaction-based compensation; (3) handles securities or funds of others in connection with securities transactions; (4) processes documents related to the sale of securities; (5) participates in the order-taking or order-routing process; (6) sells, or previously sold, securities of other issuers; (7) is an employee of the issuer; (8) is involved in negotiations between the issuer and the investor; **and/or (9) makes valuations as to the merits of the investment or gives advice.**" (quoting *SEC v. GEL Direct Tr.*, No. 22 Civ. 9803 (JSR), 2023 WL 3166421, at *2 (S.D.N.Y. Apr. 28, 2023))
> at 82-83: "while Wallet helps users discover pricing on decentralized exchanges, **providing pricing comparisons does not rise to the level of routing or making investment recommendations.**"
· **Status:** the action was dismissed by joint stipulation on 27 Feb 2025 on the Commission's discretion, expressly "not on any assessment of the merits"; the opinion was not vacated. The factor list originates in *SEC v. Hansen* (S.D.N.Y. 1984) and is non-exclusive (*SEC v. Benger*, 697 F. Supp. 2d 932, 945).
· **Factor (9) is disjunctive**: "makes valuations as to the merits **or** gives advice." · **Relevance: 5**

**S1-28 · *In the Matter of F-Squared Investments, Inc.*, IA-3988 (Dec. 22, 2014)** — https://www.sec.gov/litigation/admin/2014/ia-3988.pdf
`[CARRIED FROM P6]`
> ¶7: "F-Squared marketed an ETF sector rotation strategy called AlphaSector that was **based on an algorithm that yields a 'signal' indicating whether to buy or sell** nine industry ETFs."
> ¶13: "the Private Wealth Advisor decided to co-found a **signal provider company** … The Data Provider would send data with in/out signals to F-Squared."
· **The Commission's own vocabulary treats an in/out "signal" as the advisory artefact**, and it proceeded against the party that authored the signals, not the $28.5bn of downstream implementers. · Undercuts the proposition that "signal" is a lesser category in the Commission's usage. · **Relevance: 5**

**S1-29 · Request for Comment on Certain Information Providers Acting as Investment Advisers, IA-6050 / IC-34618, File No. S7-18-22, 87 FR 37254 (June 22, 2022)** — https://www.sec.gov/rules/other/2022/ia-6050.pdf
`[CARRIED FROM P6]` · request for comment only; comment period reopened 87 FR 63016 (18 Oct 2022); **no later Commission action located.**
> at 12: "a person generally is an investment adviser **even if its advice, reports, or analyses about securities do not relate to specific securities**, provided the services are performed as part of a business and for compensation."
> at 14: "Certain providers have relied on the publisher's exclusion … we are considering the extent to which providers' activities, in whole or in part, may raise investment adviser status issues."
· The "even if … do not relate to specific securities" sentence is directly adverse to any argument that a **thinner** output is a safer output. · **Relevance: 5**

**S1-30 · Investment Adviser Marketing, IA-5653 (Dec. 22, 2020), at 20-22** — https://www.sec.gov/rules/final/2020/ia-5653.pdf
`[CARRIED FROM P6]`
> at 21: "An adviser 'adopts' third-party information when it explicitly or implicitly endorses or approves the information. … **An adviser is liable for such third-party content under the marketing rule just as it would be liable for content it produced itself.**"
> at 22: "we would not view an adviser's edits … to result in attribution … if the adviser edits a third party's communication **based on pre-established, objective criteria** … that are documented … and that are not designed to favor or disfavor the adviser."
· The only place "adoption" is a defined operation in Advisers Act law, and it equates adopter with author. Domain is advertising attribution, not status. The "pre-established, objective criteria" carve-out is the nearest structural analogue to a mechanical runtime. · **Relevance: 3** for Track 1 (downgraded from P6's 5 — the frozen configuration removed adoption of rules; this now matters mainly to Tracks 2 and 4).

**S1-31 · §208(d), 15 U.S.C. §80b-8(d)** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-8.htm
`[CARRIED FROM P6]` · "It shall be unlawful for any person indirectly, or through or by any other person, to do any act or thing which it would be unlawful for such person to do directly." · A look-through against structuring; **directly relevant to a boundary defined by which fields cross it.** · **Relevance: 4**

**S1-32 · §209(f), 15 U.S.C. §80b-9(f)** — same source
`[CARRIED FROM P6]` · aiding-and-abetting liability "to the same extent as the person that committed such violation"; credits verified as Dodd-Frank §§923(a)(3), 929N. · **Relevance: 3**

**S1-33 · Withdrawal of Proposed Regulatory Actions, Rel. Nos. 33-11377; 34-103247; IA-6885; IC-35635, 90 FR 25531 (June 17, 2025)** — https://www.federalregister.gov/documents/full_text/text/2025/06/17/2025-11110.txt
`[CARRIED FROM P6]` · "The Commission does not intend to issue final rules with respect to these proposals." · Withdrew both *Outsourcing by Investment Advisers* (87 FR 68816) and *Predictive Data Analytics* (88 FR 53960). · **Relevance: 4**

**S1-34 · *In the Matter of BB&T Securities, LLC*, IA-4506 (Aug. 25, 2016)** ◇
`[CARRIED FROM P6]` · quoted only through IA-5653 at 21 n.45. · Downstream adopter of a third party's numbers carries exposure. · **Relevance: 2** for Track 1.

---

## S1 adverse register

**ADV-1 · *In re Weiss Research, Inc.*, IA-2525, Admin. Proc. File No. 3-12341 (June 22, 2006)** — https://www.sec.gov/files/litigation/admin/2006/ia-2525.pdf
`[CARRIED FROM P6 S5 — re-scoped to Track 1, with a paragraph P6 did not quote]` · settled Commission order; findings neither admitted nor denied. **Threat: 5** (raised from P6's 4 — under the frozen configuration this is now the closest adverse fact pattern in the register).
> ¶4: "These facsimiles and e-mails, which Weiss Research characterizes as '**simple, plain-English, – sell-this-buy-that – signals**,' **often only identify the investment** and provide verbatim trading language for the subscribers to recite to their brokers. **Weiss Research sends trading instructions to its premium services subscribers only when it purports to see an investment opportunity arise.** Weiss Research charges its subscribers between $1,000 and $5,000 for annual subscriptions."
> ¶21: "From at least September 2001 to April 1, 2005, for a fee of up to $5,000 per year, Weiss Research was engaged in the business of advising others as to the buying and selling of securities **in response to market activity**. **Accordingly, Weiss Research met the definition of an investment adviser under Section 202(a)(11).**"
> ¶22: "Weiss Research's auto-trading program did not qualify for the publishers' exclusion … Weiss Research (i) engaged in **personalized communications** with its subscribers … and (ii) **effectively had investment discretion** to purchase and sell securities on behalf of its auto-trading subscribers."
> ¶23: "A violation of Section 203(a) does not require a showing of scienter."

**Does the frozen configuration distinguish? On the definition, no; on the exclusion, partly.** Weiss's output was signal-shaped — "often only identify the investment" — fired "only when it purports to see an investment opportunity arise," sold for a flat annual fee. The Commission found §202(a)(11) met on those facts alone, in one sentence, with no discussion of what the signal contained. **The frozen configuration's payload reduction reproduces Weiss's payload rather than escaping it.** What distinguishes: Weiss authored the signals (the member authors here), Weiss engaged in personalized communications (absent here), and Weiss had effective discretion via auto-trading (absent at per-order approval). Those three, not the payload, are the distinguishing facts — and only the first two touch the definitional finding at ¶21 at all.

**ADV-2 · *R&W Technical Services*, 205 F.3d at 174-75 — "programmed to 'speak' only when certain market conditions were met … not 'regularly' disseminated."** **Threat: 5.**
**Does not distinguish, and the frozen configuration moves toward it.** The engine fires on trigger conditions by design. Member authorship of the rule does not change *when* the output fires, and R&W's own output already carried no quantity, price or order type. Applies with equal force whether the payload is a signal or a full order. The one genuine distinction — R&W's software ran the *seller's* preset formulas, not the buyer's — is an authorship point, not a content point.

**ADV-3 · *Lowe*, 472 U.S. at 209, and *Terry's Tips*, 409 F. Supp. 2d at 530 — the timing prong applied to alerts.** **Threat: 5.**
*Terry's Tips* (https://static.case.law/f-supp-2d/409/html/0526-01.html): "**The trading alerts are timed to specific market activity, and are not issued on a regular basis.** Terry's Tips' financial newsletter, the Options Tutorial, issues regularly, however." (at 530, pin-cite re-verified against the reporter's star pagination this run). **Does not distinguish.** A federal court applied the timing prong to a product literally called "trading alerts" and separated it from the same defendant's regularly-issued newsletter. Note the favourable half, at 532: "**If the only activities engaged in by the Defendants were the publication of their online newsletters containing non-personalized advice about options trading, they would be excluded**" — what defeated the exclusion was individualized guidance on which of nine strategies to select, and an auto-trading power of attorney under which "the customer usually learns of the trades only after they have been executed" (at 530). **Neither is present in the frozen configuration.**

**ADV-4 · *Datastream*'s three-part test and its timing representation.** **Threat: 5** (raised from P6's 4).
**Does not distinguish.** A message whose payload includes `side` is "organized or presented in a manner which suggests the purchase, holding or sale of any security." And Datastream earned its assurance on a representation the frozen engine cannot make: "**data delivery is not timed to any specific market activity.**" The four factors help; the test they sit beside does not, and the representation that carried the letter is unavailable.

**ADV-5 · *SEC v. Park* ("Tokyo Joe"), 99 F. Supp. 2d 889 (N.D. Ill. 2000)** — https://static.case.law/f-supp-2d/99/html/0889-01.html
`[CARRIED FROM P6 S5]` · district court, Rule 12(b)(6) denial — the court assumed the SEC's allegations true and decided nothing on the merits. **Threat: 3.**
> at 895: "The Court notes initially that **Defendants meet the basic definition of an 'investment adviser'** in that over the Internet they 'for compensation, engag[e] in the business of advising others …' **Thus, Defendants must fall within an exclusion in order to not be considered an 'investment adviser.'**"
> at 896: "The SEC has alleged that Defendants **sporadically disseminated their advice each day so as to take advantage of certain prices** … If those allegations prove to be true, there will not be anything 'general and regular' about the Defendants' publications."
> at 899: "subscribers were apparently **placing some degree of trust and confidence** in Defendants' particular advice since they were willing to pay a not-insubstantial fee for information and services that they could have acquired practically for free."
> at 894: "the **personalized** nature of one's publications is crucial in determining whether one is an investment adviser."

**Distinguishes on the disqualifiers, not on the burden.** Absent here: scienter, fraud, scalping, undisclosed positions, individual e-mails, chat-room answers to individual questions. Present here: a paid membership, a recurring fee, periodic securities selections issued by the paid party, and — squarely — **dissemination timed to prices**. The burden allocation at 895 survives every distinction: inside the definition first, exclusion second, proponent's burden. The trust-and-confidence reasoning at 899 attaches to the paid-membership structure regardless of payload.

**ADV-6 · *CFTC v. Vartuli*, 228 F.3d at 111 — the automaton reasoning.** **Threat: 4.**
**Partially distinguishes, and signal-only cuts both ways.** A signal that cannot be executed without the runtime composing quantity and price, and without the member's own policy supplying those values, is further from "an audible command to a machine to start or to stop" than a ready-to-send order was. That is a genuine, if unwritten, gain. Against it: the RAPID panel displays the composed order and takes one tap with no second confirmation, which restores the ready-to-send character at the point of the act; and the court expressly held a human conduit and a semiconductor conduit are the same where the mind does not intervene. **Marketing copy is part of the fact pattern** — *Vartuli* turned in part on advertisements telling users to follow the signals with no second-guessing.

**ADV-7 · FINRA Regulatory Notice 11-02 at 2-3 — aggregation and software-neutrality.** **Threat: 4.** `[NEW]`
**Does not distinguish.** "a series of actions that may not constitute recommendations when viewed individually **may amount to a recommendation when considered in the aggregate**" is written for exactly this architecture: signal, plus composed order, plus a one-tap panel, assessed together rather than field by field. And "**it makes no difference whether the communication was initiated by a person or a computer software program**" is *Vartuli* restated by the SRO in a live notice. This is the strongest adverse authority in the *new* material, and it sits inside the same document family as the favourable footnote 18.

**ADV-8 · FINRA Regulatory Notice 12-25 n.42 — the narrowing gradient.** **Threat: 4.** `[NEW]`
**Does not distinguish.** "the more a general class is narrowed (e.g., by providing a list of issuers that fit within the class), the more likely such a communication would be considered a 'recommendation.'" A signal naming one instrument is at the far end of the gradient. Signal-only reduces the *transaction* detail while leaving the *identification* detail maximal — and the gradient FINRA drew is about identification.

**ADV-9 · NTM 01-23's disclaimer guideline.** **Threat: 4.** `[NEW]`
**Does not distinguish.** "A member cannot avoid or discharge its suitability obligation through a disclaimer where the particular communication reasonably would be viewed as a 'recommendation' given its content, context, and presentation." Read with IA-5248 ("may not be waived"): labelling the signal "not advice," or framing the RAPID panel as the member's own act, does not settle what the communication is.

**ADV-10 · IA-6050 at 12 — "even if its advice … do[es] not relate to specific securities."** **Threat: 4.**
**Does not distinguish; it forecloses the direction of the argument.** The Commission's own 2022 statement is that thinning the output does not remove a person from the definition. A signal *does* relate to a specific security, so it is on the wrong side of even this generous formulation.

**ADV-11 · *In re F-Squared*, IA-3988 ¶¶7, 13 — "signal" is the Commission's word for the advisory artefact.** **Threat: 4.**
**Does not distinguish on vocabulary.** Distinguishes on facts (F-Squared was registered; the violations were fraud in performance advertising, not status). It is not authority that an unregistered signal author *is* an adviser; it is authority that when the Commission acts, it acts against whoever authored the signal.

**ADV-12 · Reg CF Rule 402(b)(3)(ii) — criteria "may not include … the advisability of investing."** **Threat: 3.** `[NEW]`
**Does not distinguish on the operative word.** The Commission's own line between a permissible filter and impermissible advice is drawn at *advisability*, and `side` is a statement of advisability. Threat is 3 rather than 5 only because this is a funding-portal safe harbour under Exchange Act §3(a)(80), not an Advisers Act status test, and the rule expressly disclaims any presumption from non-compliance.

**ADV-13 · §208(d), 15 U.S.C. §80b-8(d) — indirect action.** **Threat: 3.**
**Distinguishes only if each link is a genuine independent actor.** A defence whose load-bearing element is *which fields the integration contract rejects* is a structural defence, and §208(d) is the provision aimed at structural defences. **No case applying §208(d) to this pattern was located — that is a gap, not a defence.**

**ADV-14 · IM Guidance Update 2017-02 at 7.** **Threat: 3.**
Distinguishes on domain (registered advisers exercising discretion; staff-level, no legal force). Does not distinguish on the substantive point: a provider's obligation is not discharged by the client's own selection.

---

## Direct answers

### 1. Does the CONTENT of the output matter in any authority, or only timing and personalization?

**Content matters in exactly one live line of authority, and it is Exchange Act "recommendation" doctrine — not Advisers Act status doctrine.** The split is clean and it should be reported as a split, not as a single answer.

**Where content matters (all Exchange Act / SRO / safe-harbour):**
- **NTM 01-23**, guideline 3: "Members should scrutinize any communication to a customer that **suggests the purchase, sale, or exchange of a security — as opposed to simply providing objective data about a security**." The whole test is "**content**, context, and manner of presentation," and the operative concept is "**call to action**."
- **NTM 01-23 n.18**: a customer-requested **price-point alert** is, "without more," not a recommendation — a condition-met notification, timed to market activity by definition, expressly on the safe side.
- **Reg BI adopting release, 34-86031 at 79-80 & n.161**: the **Commission** adopted that framework, by citation to NTM 01-23, in a final-rule adopting release.
- **Reg CF Rule 402(b)(3)(ii)**: criteria may be objective attributes but "may not include … **the advisability of investing** … or an assessment of any characteristic."
- **Datastream** prong (iii): information "not **organized or presented in a manner which suggests** the purchase, holding or sale."
- **Lowe, 472 U.S. at 210**: "The **content** of the publications and the audience to which they are directed in this case reveal the specific limits of the exclusion."

**Where content does not matter — the Advisers Act status axis:**
- ***R&W*** decides by **timing**, **generality**, and the CEA's **"solely incidental"** clause. Content appears nowhere in any of the three grounds. And its software's output was already signal-shaped.
- ***Weiss*** ¶21 found §202(a)(11) met on signals that "often only identify the investment," fired "only when it purports to see an investment opportunity arise."
- ***Lowe*** at 209 makes "timed to specific market activity" dispositive of "regular," independent of payload.
- **17 C.F.R. §4.14(a)(9)** — the one codified test — has two prongs, **account direction** and **client-tailoring**, and **no content prong**.
- **Rule 203A-3(a)(3)(ii)** and **Rule 203A-2(e)** are personalization tests.
- **IA-6050 at 12**: a person is generally an adviser "even if its advice … do[es] not relate to specific securities."

**The synthesis, stated plainly.** Content operates as a **threshold, not a gradient**. The question every authority asks is: *does this output bear on the advisability of a transaction in a named security?* Above that threshold, granularity is legally invisible — a signal and a complete order ticket are treated alike. Below it — objective data, a screener the user directs, a price alert the user requested — content saves you. **A signal carrying `side` sits above the threshold.** The one authority that could put it below (NTM 01-23 n.18) does so because *the customer set the condition and asked to be told*, which is an authorship-and-request fact, not a payload fact.

### 2. Does signal-only remove *Coinbase* factor (9)?

**Not observed to be removed. It is narrowed, and only in half.**

Factor (9) is disjunctive: "makes valuations as to the merits of the investment **or** gives advice" (slip op. at 80, quoting *GEL Direct*).

- **"Makes valuations as to the merits"** — signal-only removes the strongest evidence for this half. No price, no price band, no quantity, no order type means no expressed view about the value of the instrument or the size of the position. *Coinbase* itself, at 82-83, held that "providing pricing comparisons does not rise to the level of routing or making investment recommendations," which supports the narrower reading. **This half of the factor is materially weakened.**
- **"Or gives advice"** — **no authority located removes this half.** *Weiss* ¶4/¶21 and *R&W* at 168, 174-75 both treat instrument-plus-side output as advice or recommendation. NTM 01-23 puts a communication that "suggests the purchase, sale, or exchange of a security" on the recommendation side. RN 12-25 n.42's narrowing gradient puts a named instrument at the specific end. IA-6050 at 12 forecloses the argument that thinner output escapes.

**What actually does the work on factor (9), on the material found, is not the payload but three other facts:** that the member authored the trigger criteria (NTM 01-23's screener example turns on "criteria selected by the customer" and on the algorithms not being "programmed to produce lists … based on subjective factors that the member has created or developed"); that the member requested the notification (n.18); and that the output is not tailored to the member's circumstances (§4.14(a)(9)(ii); Rule 203A-3(a)(3)(ii)).

**Two structural caveats on the citation itself:** the *Coinbase* action was dismissed by joint stipulation on 27 Feb 2025, expressly not on the merits (opinion not vacated); and the factor list is non-exclusive (*Benger*, 697 F. Supp. 2d at 945), so a clean score on nine factors is not a defence against a tenth.

### 3. If timing alone decides, what does signal-only actually buy?

**On the Advisers Act publisher's exclusion: nothing.** Every authority on the timing prong — *Lowe* at 209, *R&W* at 174-75, *Terry's Tips* at 530, *Park* at 896, *Zurl*, *Hendricks* (2015), and *Datastream*'s own "data delivery is not timed to any specific market activity" representation — is indifferent to payload. An engine that fires when a rule is met is, by construction, timed to specific market activity. **P6's conclusion on this stands unchanged and the frozen configuration does not touch it.**

**What signal-only does buy, on the material found:**

1. **Half of *Coinbase* factor (9)** — the "valuations as to the merits" limb, as above. Real but partial, and on an Exchange Act factor list that is non-exclusive.
2. **Distance from the *Weiss* discretion finding, by structure rather than by promise.** Weiss lost the exclusion on personalized communications *and* "effectively had investment discretion." An engine that is contractually incapable of emitting quantity, price, order type, time-in-force or account cannot be said to have composed the order — and that is provable, not asserted. This is a **§3(a)(35) / Track 2** gain, not a §202(a)(11) gain.
3. **Strengthening of the *Taucher* formulation.** "a user obtains either a specific trading recommendation or another meaningful output **which the user must then interpret by using his own skills and knowledge**" (53 F. Supp. 2d at 470-ish findings). A bare signal is unexecutable without the member's own policy values supplying every remaining term. That is a **Vartuli-axis** gain — does the mind intervene — and it is the axis on which the constitutional line was drawn. Discount it for *Taucher*'s status: district court, mooted appeal, foundation criticised by the D.C. Circuit in 2005.
4. **Alignment with the one favourable footnote in the register.** NTM 01-23 n.18's price-point alert is, factually, the nearest thing to `{instrument, fired_at}`. It is not the nearest thing to `{instrument, side, quantity, limit, TIF}`. **Signal-only is what makes that footnote arguable at all** — but the footnote's own conditions are that the customer *requested* it and that nothing in the content, context or presentation suggests taking action, and a `side` field pushes against the second.

**Where the analysis therefore rests, stated as the commission anticipated:** on **authorship of the rule** and **absence of personalization**. Those two are the only axes on which the located authorities actually sort cases — *Lowe* 207-10 and n.57; §4.14(a)(9); Rule 203A-3(a)(3)(ii); Rule 203A-2(e); *R&W* at 175; NTM 01-23's screener example and n.18; *Datastream* factors 2 and 3. **Signal-only is a third-order fact on both.** And note the residual problem P6 identified and P7 does not solve: on the timing axis, all of them fail together.

---

## Negative findings

1. **No SEC or SEC-staff authority was located that treats an alert, screener or condition-monitor product under the Advisers Act.** Every located authority on screening tools and condition-met notifications — NTM 01-23, RN 11-02, RN 12-25, the Reg BI adopting release, Reg CF Rule 402(b) — is **Exchange Act / broker-dealer / SRO** material about whether a *recommendation* was made. The Advisers Act side has *Datastream* (data presentation, not alerts) and nothing else. **The gap between the two regimes on this exact product shape is unbridged in the primary sources.**

2. **No authority in any regime was located in which the *granularity* of a securities output — a bare signal versus complete proposed order terms — determined status.** Not a statute, not a rule, not a Commission release, not a staff letter, not a reported decision. The distinction the frozen configuration is built around does not appear as an operative concept anywhere. *This is the central finding of Track 1 and it is a negative one.*

3. **The Commission asked the notification question and never answered it.** File No. S7-10-21 (34-92766, 27 Aug 2021) identified notifications as a distinct digital engagement practice and asked whether they constitute recommendations or investment advice. The only follow-on rulemaking, 88 FR 53960, was formally withdrawn on 17 June 2025 (90 FR 25531). No Commission position exists.

4. **No staff comfort is obtainable on the publisher's exclusion.** Confirmed twice, twenty years apart: *Zurl* (1995) and *Hendricks* (26 Jan 2015) — "a factual and not a legal determination." And *Missouri Innovation* (17 Oct 1995): the Division "will no longer respond to requests for interpretive or no-action letters in this area unless they present novel or unusual issues."

5. **The *Datastream* predecessor letters remain unretrievable.** EJV Partners/UniVu (Dec 1992), Media General Financial Services (20 July 1992), Investex (Apr 1990), Charles Street Securities (27 Feb 1987), Butcher & Singer (Jan 1987), Wallace & Lin (15 Apr 1985), Jack Sonner (11 Mar 1983), Executive Asset Management (15 Dec 1988), Wilson & Associates (25 May 1988), Computer Language Research (26 Dec 1985), Innosearch Corp (12 Sept 1985), Syrus Associates (23 Oct 1981). **Verified by enumeration this run:** 957 unique Division of Investment Management no-action letter URLs were extracted from the staff-letter index page; **none of the twelve is present.** Several (Investex, Innosearch) are, by name, the closest thing to screening products in the citation chain. P6's ◇ flag confirmed and hardened.

6. **No case applying §208(d) to a defence built on which fields cross an integration boundary was located.**

7. **No reported federal decision was located addressing an unregistered signal or notification vendor under the Advisers Act after *Terry's Tips* (2006).** The post-2006 record is CEA-side (*Vartuli*, *R&W*, both 2000) or Commission-order-side (*Weiss* 2006, *F-Squared* 2014).

8. **Propositions found only in secondary sources: none carried forward.** No law-firm memo, treatise or commentary was relied on for any proposition in this register.

9. **◇ list requiring primary verification by counsel:** IA-1092 (52 FR 38400) — sec.gov 404 on all paths, FR digital archive does not reach 1987; *Abrahamson v. Fleschner*, 568 F.2d 862; *In re BB&T Securities*, IA-4506; the twelve *Datastream* predecessor letters at item 5.

10. **P6 corrections carried into this register:** *Taucher v. Born*'s subsequent history is now resolved (P6 S1 flagged it; P6 S2b answered it) — appeal mooted by the CFTC's adoption of 17 C.F.R. §4.14(a)(9) on 10 Mar 2000 and voluntarily dismissed (*Taucher v. Rainer*, 2000 WL 516081); fee award reversed and vacated in *Taucher v. Brown-Hruska*, 396 F.3d 1168, 1174-76 (D.C. Cir. 2005). P6's *Weiss* "unverified" flag (P6 S1 negative finding 4) is closed: the document is *In re Weiss Research, Inc.*, IA-2525, AP File No. 3-12341 (22 June 2006), retrieved and read in full this run.

---

## Search log

**Date:** 5 September 2026. **Analyst constraint:** the session's WebSearch budget was already exhausted (200/200) before this track began — **no search-engine queries were run.** All retrieval was by direct `curl` of primary hosts with a declared contact User-Agent (`LegalResearch/1.0 (uri@permanentbeta.dk)`). No product, project, methodology, person or domain name was used in any request path. The single WebSearch attempted (neutral terms, sec.gov-restricted) was refused for budget and is recorded as an attempt, not a result.

**Primary documents fetched and read in full this run (all HTTP 200, size-checked against the ~53 KB block-page signature):**

| Document | URL | Bytes |
|---|---|---|
| *R&W Technical Services v. CFTC*, 205 F.3d 165 | static.case.law/f3d/205/html/0165-01.html | 85,247 |
| *Datastream International* (15 Mar 1993) | sec.gov/divisions/investment/noaction/1993/datastream-international-031593-202a.pdf | 1,783,872 |
| NASD NTM 01-23 (Apr 2001) | finra.org/rules-guidance/notices/01-23 | 124,075 |
| FINRA Reg. Notice 11-02 (Jan 2011) | finra.org/rules-guidance/notices/11-02 | 124,755 |
| FINRA Reg. Notice 12-25 (May 2012) | finra.org/rules-guidance/notices/12-25 | 184,853 |
| Reg BI adopting release, 34-86031 | sec.gov/files/rules/final/2019/34-86031.pdf (302 from /rules/final/) | 3,290,743 |
| DEP Request for Comment, 34-92766 | sec.gov/files/rules/other/2021/34-92766.pdf (302 from /rules/other/) | 618,767 |
| *Lowe v. SEC*, 472 U.S. 181 | static.case.law/us/472/html/0181-01.html | 190,529 |
| *SEC v. Terry's Tips*, 409 F. Supp. 2d 526 | static.case.law/f-supp-2d/409/html/0526-01.html | — |
| *In re Weiss Research*, IA-2525 | sec.gov/files/litigation/admin/2006/ia-2525.pdf | 65,018 |
| *Jonathon Hendricks* (26 Jan 2015) | sec.gov/divisions/investment/noaction/2015/jonathon-hendricks-012615-202a.htm | 12,023 |
| 17 C.F.R. part 4 (§4.14) | ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=4 | 63,020 |
| 17 C.F.R. part 227 (§227.402) | ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=227 | 25,470 |
| SEC IM no-action letter index | sec.gov/divisions/investment/im-noaction.shtml | 855,323 |
| *SEC v. Coinbase*, ECF 105 | local corpus from P6 run (`coinbase.txt`), factor list at slip op. 80 re-verified verbatim | — |

**Access notes (new or corrected this run):**
- `static.case.law` star-pagination anchors are `<a class="page-label">*NNN</a>` but **attribute order varies** — a regex keyed to `class="page-label"` *followed by* `>` misses them in some volumes. Match on `page-label">\*(\d+)</a>` and resolve pin-cites against **raw HTML byte offsets**, not against post-strip text offsets. This is what produced the *Terry's Tips* 530/532 confirmations.
- `sec.gov/rules/<type>/<year>/<doc>.pdf` 302-redirects to `/files/rules/...`; `curl -L` handles it, `-o` without `-L` returns an empty file with a 200.
- `sec.gov/divisions/investment/im-noaction.shtml` returns a single 855 KB page containing **957 unique Division of Investment Management no-action URLs spanning 1971-2018** — usable as a poor man's index. Extract with `grep -o '/divisions/investment/noaction/[^"]*'`. It contains no pre-1992 Advisers Act §202(a)(11) software letters.
- `finra.org/rules-guidance/notices/<n>` serves the full notice text inside a large navigation shell; strip `<script>`/`<style>` before tag-stripping or the footnotes are buried in menu text.
- `ecfr.gov` versioner API: `?part=NNN` works with `--compressed`; `&section=` still returns `{"error":"No matching content found."}` — fetch the whole part and extract locally (P6's note confirmed).
- `pdftotext` emits `Syntax Error: Expected the default config` on `ia-2525.pdf` but extracts the text correctly; the error is cosmetic.

**Documents deliberately not pursued (out of Track 1 scope):** the 1992 and 1997 Charles Schwab no-action letters located in the index (`/divisions/investment/noaction/1992/charlesschwabco-052892.pdf`, `/divisions/investment/noaction/1997/cschwab070797.pdf`) — **flagged for Track 5**, which is hunting a 1996 Schwab letter; note that the index shows 1992 and 1997 letters and **no 1996 letter**, which may itself be relevant to that track's identification problem.


---

<br>

# S2 · TRACK 2 — The runtime as the party that "decides"

I have all the primary material. Report follows.

---

# P7 TRACK 2 — THE RUNTIME AS THE PARTY THAT "DECIDES"

**Research date:** 5 September 2026. Every URL below was fetched and read on that date unless marked ◇. WebSearch was unavailable for this session (budget exhausted, 200/200, before the track began); everything was located by direct HTTP fetch, index-walking on sec.gov, the eCFR versioner API, `static.case.law`, the CourtListener v4 search API, and the Washington Legislature's session-law file server. Two items that would normally warrant a keyword search — any SEC/FINRA statement on customer-configured order-entry defaults, and any staff position on open-source publication — are reported below as *not-found-because-not-searchable*, not as verified negatives.

---

## S2 — Track 2 authority register

### A. The statutory frame

---

### A1. Exchange Act §3(a)(35) — "investment discretion", complete text · **[SUPERSEDES P6 S3 entries B6 and C1 — same text, independently re-extracted and re-verified 5 Sep 2026]**

**Citation** · Securities Exchange Act of 1934 §3(a)(35), 15 U.S.C. §78c(a)(35) — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2B-sec78c.htm
**Type** Federal statute · **Date** 2023 Code edition; prong unamended in relevant part · **Status** Good law.

**Verbatim, in full (chapeau and all three prongs):**
> "(35) A person exercises 'investment discretion' with respect to an account if, **directly or indirectly**, such person (A) is authorized to determine what securities or other property shall be purchased or sold by or for the account, (B) makes decisions as to what securities or other property shall be purchased or sold by or for the account **even though some other person may have responsibility for such investment decisions**, or (C) otherwise exercises such influence with respect to the purchase and sale of securities or other property by or for the account as the Commission, by rule, determines, in the public interest or for the protection of investors, should be subject to the operation of the provisions of this chapter and the rules and regulations thereunder."

**Re-verified negative (P6 §0 correction confirmed independently):** full-text extraction of §78c returns **zero** occurrences of "time and price" and **zero** occurrences of "except" inside §3(a)(35). **§3(a)(35)(B) is not an exclusion.** It is a second inclusive prong.

**Establishes** (i) three inclusive prongs, no exclusion; (ii) the chapeau's "directly or indirectly" modifies all three; (iii) prong (A) keys on *authorisation*, prong (B) on *fact* — it reaches a person who "makes decisions" notwithstanding that formal responsibility sits elsewhere; (iv) the subject is "a person", with no registration predicate.
**Undercuts — severely.** **Relevance 5.**
**Application note against the frozen configuration** Moving composition into the member's own machine changes nothing textual: prong (B) asks who *makes the decision*, not where the code runs or who owns the machine; and "indirectly" is drafted to defeat interposition. The only fact that engages the statute's own words in the configuration's favour is that the *values* the runtime applies were determined by the member in advance — which speaks to prong (A) ("authorized to determine") but not obviously to prong (B).

---

### A2. Exchange Act §3(a)(4)(A) and §15(a)(1) · **[CARRIED FROM P6 S2 entry 1 — re-verified 5 Sep 2026]**

**Citation** · 15 U.S.C. §78c(a)(4)(A); 15 U.S.C. §78o(a)(1) — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2B-sec78c.htm
**Type** Federal statute · **Status** Good law.

**Verbatim §3(a)(4)(A):**
> "**(4) Broker.— (A) In general.—The term 'broker' means any person engaged in the business of effecting transactions in securities for the account of others.**"

**Verbatim §15(a)(1):**
> "It shall be unlawful for any broker or dealer … to make use of the mails or any means or instrumentality of interstate commerce **to effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security** … unless such broker or dealer is registered in accordance with subsection (b) of this section."

**Establishes** Two conjunctive elements: *engaged in the business*; and *effecting transactions in securities for the account of others*. Neither is defined in the Act.
**Neutral — it is the frame.** **Relevance 5.**
**Application note** Note that §15(a)(1) reaches "induce or attempt to induce" independently of "effect" — a limb no architecture removes (P6 §0, *Neovest*).

---

### A3. Rule 13f-1(b) and Form 13F, Special Instruction vi — the only place the Commission operationalises §3(a)(35) · **[NEW]**

**Citation** · 17 C.F.R. §240.13f-1 — https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=240&section=240.13f-1 · Form 13F — https://www.sec.gov/files/form13f.pdf
**Type** Commission rule and form · **Date** rule at 43 FR 26705 (22 June 1978), as amended 76 FR 71876 (21 Nov. 2011) · **Status** In force at the 1 Sep 2026 eCFR snapshot.

**Verbatim, Rule 13f-1(b):**
> "For the purposes of this rule, 'investment descretion' has the meaning set forth in section 3(a)(35) of the Act (15 U.S.C. 78c(a)(35)). **An institutional investment manager shall also be deemed to exercise 'investment discretion' with respect to all accounts over which any person under its control exercises investment discretion.**"

**Verbatim, Form 13F, Special Instruction vi (Column 6):**
> "Segregate the holdings of securities of a class according to the nature of the investment discretion held by the Manager. Designate investment discretion as 'sole' (SOLE); 'shared-defined' (DEFINED); or 'shared-other' (OTHER) … (C) **Shared-Other.** Designate as 'shared-other' securities (OTHER) those over which **investment discretion is shared** in a manner other than that described in Special Instruction (B) above."
> "NOTE: A Manager is deemed to share discretion with respect to all accounts over which any person under its control exercises discretion."

**Establishes** (i) The only extension the Commission has written onto §3(a)(35) is a **control** look-through, not a technology look-through; (ii) §3(a)(35) discretion is expressly capable of being **shared** — the concept is not exclusive, so "the member exercises it" does not by itself answer whether another person also does; (iii) every category in the Commission's own operative form is a *person* or *Manager*; **there is no category for software**.
**Mixed — undercuts the exclusivity framing, supports nothing about software.** **Relevance 4.**
**Application note** "Shared" is the framing a regulator would reach for: it does not have to displace the member to reach the runtime's publisher.

---

### A4. Exchange Act Rule 17a-3(a)(6)(i) and (a)(17)(ii) — federal law's own binary: customer-entered vs discretion-entered · **[CARRIED FROM P6 S3 entry A10 — re-fetched and re-verified 5 Sep 2026]**

**Citation** · 17 C.F.R. §240.17a-3 — https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=240&section=240.17a-3
**Type** Commission rule · **Status** In force at the 1 Sep 2026 snapshot.

**Verbatim (a)(6)(i)(A), in relevant part:**
> "The memorandum must show the terms and conditions of the order or instructions and of any modification or cancellation thereof, the account for which entered, the time the order was received, the time of entry, the price at which executed, the identity of each associated person, if any, responsible for the account, **the identity of any other person who entered or accepted the order on behalf of the customer, or, if a customer entered the order on an electronic system, a notation of that entry** … **An order entered pursuant to the exercise of discretionary authority by the member, broker or dealer, or associated person thereof, must be so designated.**"

**Verbatim (a)(17)(ii):**
> "If an account is a discretionary account, a record containing the dated signature of each customer or owner granting the authority and the dated signature of **each natural person** to whom discretionary authority was granted."

**Establishes** The federal order-ticket record recognises exactly two provenances: an order the **customer entered on an electronic system**, and an order **entered pursuant to the exercise of discretionary authority**. There is no third category for "composed by software from values the customer entered earlier." And (a)(17)(ii) contemplates discretion granted only to **natural persons**.
**Two-edged — supports the "the member entered it" framing; undercuts by supplying no template for a grant to a program.** **Relevance 4.**
**Application note** The frozen configuration's one-tap-in-the-panel act is designed to land in the first category. The recordkeeping rule does not say which category a machine-composed, human-approved order falls into; that gap is the exposure, and it is an absence rather than a prohibition.

---

### A5. FINRA Rule 3260(b), (c), (d)(1) · **[CARRIED FROM P6 S3 entries B4 and C2 — re-fetched and re-verified 5 Sep 2026]**

**Citation** · FINRA Rule 3260 (Discretionary Accounts) — https://www.finra.org/rules-guidance/rulebooks/finra-rules/3260
**Type** SRO rule · **Status** In force; **no fee-based carve-out exists in the rule text** (confirmed again today).

**Verbatim (b):**
> "No member or registered representative shall exercise any discretionary power in a customer's account unless such customer has given prior written authorization to a stated individual or individuals and the account has been accepted by the member…"

**Verbatim (d)(1), complete:**
> "This Rule shall not apply to: (1) discretion as to the price at which or the time when an order given by a customer for the purchase or sale of **a definite amount of a specified security** shall be executed, except that the authority to exercise time and price discretion will be considered to be in effect **only until the end of the business day on which the customer granted such discretion**, absent a specific, written contrary indication signed and dated by the customer. This limitation shall not apply to time and price discretion exercised in an institutional account, as defined in Rule 4512(c), pursuant to valid Good-Till-Cancelled instructions issued on a 'not-held' basis. **Any exercise of time and price discretion must be reflected on the order ticket.**"

**Establishes** (i) The carve-out is from *this rule*, not from the concept; (ii) it is bounded to a definite amount of a specified security; (iii) it expires at end of business day; (iv) the rule's addressees are **members and registered representatives** — an unregistered party is outside the rule and therefore neither bound nor sheltered by its exception.
**Mixed.** **Relevance 5.**
**Application note** The envelope (price band, re-peg rule) maps onto (d)(1) only if it is bounded to a definite quantity of a named security *and* dies with the end-of-day sweep. The runtime's publisher cannot invoke the exception because it is not a member.

---

### A6. FINRA Rule 4512(a)(3) — FINRA's own words: time-and-price **is** investment discretion · **[CARRIED FROM P6 S3 entry C3 — re-fetched and re-verified 5 Sep 2026]**

**Citation** · FINRA Rule 4512(a)(3) — https://www.finra.org/rules-guidance/rulebooks/finra-rules/4512
**Verbatim:**
> "…the member shall maintain a record of the dated, signature of each named, associated person of the member authorized to exercise discretion in the account. **This recordkeeping requirement shall not apply to investment discretion granted by a customer as to the price at which or the time to execute an order given by a customer for the purchase or sale of a definite dollar amount or quantity of a specified security.** Nothing in this Rule shall be construed as allowing members to maintain discretionary accounts or exercise discretion in such accounts except to the extent permitted under the federal securities laws."

**Establishes decisively** FINRA calls time-and-price latitude "**investment discretion** granted by a customer." It is discretion; it is merely exempted from a recordkeeping requirement; and the closing sentence disclaims any implication of federal permission.
**Undercuts.** **Relevance 5.**
**Application note** The frozen configuration's own description of the envelope as "latitude FINRA treats as investment discretion but exempts from the cited recordkeeping requirement" is a correct reading of this rule and is the only defensible framing.

---

### B. "Effects transactions" — who gives the instruction

---

### B1. *SEC v. GEL Direct Trust* — the SEC's live theory, verified from the primary opinion · **[NEW — P6 had this case only through *Coinbase*'s parenthetical]**

**Citation** · *SEC v. GEL Direct Trust*, No. 1:22-cv-09803-JSR (S.D.N.Y.), Opinion and Order, ECF No. 38 (Apr. 28, 2023) (Rakoff, J.) — https://storage.courtlistener.com/recap/gov.uscourts.nysd.589655/gov.uscourts.nysd.589655.38.0.pdf
**Type** Federal district court opinion (motion to dismiss denied) · **Date** 28 April 2023 · **Status** Good law and current: the same court later **denied the SEC summary judgment** (docket entry, ECF No. 65, 31 Mar. 2024: "the Court denies summary judgment to the SEC but grants the SEC's motion to exclude the expert report and testimony of Mr. Holik"). The opinion is a scanned PDF without a text layer; the quotations below were read from rendered page images and are transcribed verbatim.

**Verbatim, ECF 38 at 5-6 (the losing "ministerial" argument — this is the frozen configuration's own framing, from the defendants' mouths):**
> "Defendants argue that they were not brokers for purposes of the Registration Requirement. They contend that they merely acted as 'a glorified admin' -- 'an accountant or a bookkeeper.' … According to them, GEL's primary function was to '**keep internal records of the trading its customers directed the licensed executing brokers to do**.' … According to defendants, people who perform such ministerial functions are not 'brokers' for purposes of the Registration Requirement."

**Verbatim, at 6 (what defeated it):**
> "Second, the Complaint alleges that defendants participated in the order-routing process. According to the Complaint, **GEL provided trading instructions on behalf of its customers, through which it directed executing brokers to sell securities. These instructions included directives on price and volume.** For example, on July 2, 2019, GEL instructed an executing broker to sell shares at '15% of volume.'"

**Verbatim, at 7 — the discretion inference, drawn from *speed*:**
> "Moreover, when GEL gave these directives, the Complaint alleges, GEL exercised discretion.¹ … In this interaction, an executing broker asked GEL if it wanted to sell additional shares of a particular penny stock. **Six seconds later, GEL responded 'yes.' A plausible inference from this interaction is that GEL could not have received specific instructions authorizing this transaction from its customer in such a short amount of time and, therefore, exercised discretion.**"

**Verbatim, at 7 n.1 — discretion as fact, not authorisation:**
> "At oral argument, defense counsel provided grounds to doubt that GEL was expressly authorized to exercise this discretion. … **Even if GEL was not so authorized, however, the SEC alleges that GEL exercised discretion as a matter of fact.**"

**Verbatim, at 7 (regularity):**
> "Further still, defendants did not merely participate in trading securities sporadically. To the contrary, the SEC alleges that the defendants participated in a large volume of securities transactions: more than 19,000 trades of more than 300 billion shares of stock of more than 400 issuers…"

**Establishes** (i) A vendor that composes and transmits an instruction carrying **price and volume terms** participates in order-routing in the broker sense; (ii) **discretion is found as a matter of fact and does not require authorisation** — footnote 1 is §3(a)(35)(B)'s de facto principle applied inside a §3(a)(4) case; (iii) the court was willing to **infer discretion from the shortness of the interval** between the trigger and the instruction; (iv) "our customers directed the trades and we only kept the records" was rejected at the pleading stage.
**Undercuts — the single most directly on-point adverse authority found in P7, and P6 did not have it in this form.** **Relevance 5.**
**Application note** The six-seconds inference is aimed squarely at machine-speed composition. The frozen configuration's answer must be that a fresh, displayed, member-initiated act stands between composition and transmission on *every* live order — which is exactly what the per-order-approval rung supplies, and exactly what standing execution would remove. Note also that GEL took $30 per completed trade ($12.4m labelled "commissions"), which the configuration does not.

---

### B2. *SEC v. Coinbase, Inc.* — the Wallet holding and the reserved routing conduct · **[CARRIED FROM P6 S2 entry 5]**

**Citation** · *SEC v. Coinbase, Inc.*, 726 F. Supp. 3d 260, 304-07 (S.D.N.Y. 2024) (Failla, J.); slip op. (ECF 105) at 78-84 — https://storage.courtlistener.com/recap/gov.uscourts.nysd.599908/gov.uscourts.nysd.599908.105.0.pdf
**Type** Federal district court opinion (Rule 12(c)) · **Date** 27 March 2024 · **Status** Wallet claim dismissed; pin cite 304-07 confirmed as current by Commissioner Peirce, 13 April 2026. ◇ on procedural posture after 27 Mar. 2024 only.

**Verbatim, slip op. 80 (the nine factors):**
> "Courts consider a number of factors … including whether it **(1) actively solicits investors; (2) receives transaction-based compensation; (3) handles securities or funds of others in connection with securities transactions; (4) processes documents related to the sale of securities; (5) participates in the order-taking or order-routing process; (6) sells, or previously sold, securities of other issuers; (7) is an employee of the issuer; (8) is involved in negotiations between the issuer and the investor; and/or (9) makes valuations as to the merits of the investment or gives advice.**"

**Verbatim, slip op. 82 (the reserved conduct — the sentence that matters most here):**
> "…the SEC's allegations do little to suggest that Wallet undertakes routing activities in a manner recognized by courts to have been traditionally carried out by brokers, **such as by providing trading instructions to third parties or directing how trades should be executed.** See, e.g., GEL Direct Tr., 2023 WL 3166421, at \*3 (finding that complaint alleged defendant routed securities orders in part because broker '**exercised discretion**' and '**provided trading instructions on behalf of its customers**,' including **directives on 'price and volume'**)."
> "**…the SEC does not allege that Coinbase performs any key trading functions on behalf of its users … Coinbase has no control over a user's crypto-assets or transactions via Wallet, which product simply provides the technical infrastructure for users to arrange transactions on other DEXs in the market. Only a user has control over her own assets, and the user is the sole decision-maker when it comes to transactions.**"

**Verbatim, slip op. 83 n.20:**
> "**Facilitation or bringing together parties to transact, however, is not enough to warrant broker registration under Section 15(a).**"

**Establishes** Self-custody, absence of key trading functions and "the user is the sole decision-maker" defeated the claim **even though** the provider solicited users and took a 1% per-transaction commission. The court expressly reserved instruction-giving with price directives as broker conduct.
**Supports on the second element; carries the sharpest reservation.** **Relevance 5.**
**Application note** "The user is the sole decision-maker" is the phrase the frozen configuration is built toward. But the runtime transmits a canonical instruction carrying a price band and a re-peg rule — on *Coinbase*'s own citation of *GEL Direct*, "directives on price and volume" is the far side of the line. The distinguishing fact has to be that every one of those values is the member's own and that a fresh member act precedes transmission; the opinion supplies no test for whose instruction it is.

---

### B3. *SEC v. Kramer* · **[CARRIED FROM P6 S2 entry 6]**
**Citation** · 778 F. Supp. 2d 1320, 1334-39 (M.D. Fla. 2011) — https://static.case.law/f-supp-2d/778/html/1320-01.html · **Status** Good law; cited in *Coinbase* at 80-81 and *Mapp* at 592.
**Verbatim, at 1336:** > "'Although [the defendant] was in the business of facilitating securities transactions among other persons, the Commission cites no authority for the proposition that this equates to "effecting transactions in securities for the account of others."'" · "'**Merely bringing together the parties to transactions … is not enough**' to warrant broker registration under Section 15(a)."
**Verbatim, at 1339:** > "**No evidence shows that Kramer possessed authority over the accounts of others or sought to influence Talib's authority over the accounts of others.**"
**Supports.** **Relevance 5.** **Application note** "No authority over the accounts of others" is the closest judicial phrase to what credential isolation is designed to achieve; local composition adds nothing to it, and takes nothing away.

### B4. *SEC v. Mapp* · **[CARRIED FROM P6 S2 entry 9]**
**Citation** · 240 F. Supp. 3d 569, 591-93 (E.D. Tex. 2017) — https://static.case.law/f-supp-3d/240/html/0569-01.html · **Status** Good law.
**Verbatim, at 592:** > "**The Kramer and M & A West cases suggest that control over the account of others is an element rather than a factor.**"
**Verbatim, at 592-93:** > "**Paxton was merely facilitating securities transactions rather than performing the functions of a broker.** … The Commission failed to allege that assets were entrusted to Paxton or that he was authorized to transact for the account of others."
**Verbatim, at 591-92 (the Commission's contrary litigating position, on the record):** > "**The Commission claims it does not have to allege that Paxton had actual authority or control over his clients' accounts or assets. The Commission believes that control over accounts is merely a factor.**"
**Supports — the single most favourable case for credential isolation.** **Relevance 5.**

### B5. *SEC v. Benger* · **[CARRIED FROM P6 S2 entry 8]**
**Citation** · 697 F. Supp. 2d 932, 943-45 (N.D. Ill. 2010) — https://static.case.law/f-supp-2d/697/html/0932-01.html
**Verbatim, at 945:** > "**The factors articulated in Hansen, however, are not binding on this court, and, in any case, were not designed to be exclusive.**" · "In short, … **Powers facilitated the consummation of the sales.**"
**Undercuts.** **Relevance 4.** **Application note** A configuration that scores clean on all nine *Coinbase* factors is not safe if a court adds a tenth.

### B6. *Massachusetts Financial Services v. SIPC* · **[CARRIED FROM P6 S2 entry 10]**
**Citation** · 411 F. Supp. 411, 415 (D. Mass. 1976) — https://static.case.law/f-supp/411/html/0411-01.html
**Verbatim, at 415:** > "**Both definitions connote a certain regularity of participation in securities transactions at key points in the chain of distribution.**"
**Undercuts the "free / flat-fee" argument.** **Relevance 4.** **Application note** A continuously running runtime plus a recurring membership supplies regularity regardless of how composition is located.

### B7. *In re Neovest, Inc.* and Commissioner Peirce's dissent, fn. 3 · **[CARRIED FROM P6 S2 entries 3-4]**
**Citation** · Exchange Act Rel. No. 34-92285 (June 29, 2021) — https://www.sec.gov/litigation/admin/2021/34-92285.pdf · Peirce dissent — https://www.sec.gov/newsroom/speeches-statements/peirce-statement-neovest-062921
**Verbatim, OIP ¶3:** > "Neovest continued to operate as a broker-dealer by engaging in the business of effecting securities transactions for others **through the receipt of transaction-based compensation for its OEMS services and its solicitation of customers for those services**."
**Verbatim, Peirce fn. 3 — the only place in the whole file where member-authored automation is addressed:** > "Although Neovest also provided its customers with '**predefined sequences**' that decided '**when, where, and how much to route**,' it appears that **these sequences were created by the customer and operated according to the customer's instructions**."
**Verbatim, Peirce (the flat-fee reductio — adverse to the configuration's economics):** > "**Would, for example, a retail broker that decided to forgo both commissions and payment for order flow and instead charged its customer-members an annual membership fee be permitted to operate without registering as a broker-dealer?**"
**Both supports and undercuts.** **Relevance 5.** **Application note** Peirce's fn. 3 is the closest thing in any SEC document to the frozen configuration's own theory — customer-created sequences deciding *how much*. The majority never engaged with it, and it lost 4-1. Cite it for the framework, never for the outcome.

### B8. SEC, *Guide to Broker-Dealer Registration*, Part II.A · **[CARRIED FROM P6 S2 entry 2]**
**Citation** · Division of Trading and Markets (April 2008) — https://www.sec.gov/divisions/marketreg/bdguide.htm
**Verbatim:** > "**Are you otherwise engaged in the business of effecting or facilitating securities transactions?**" and, among persons who may need to register, "**persons that operate or control electronic or other platforms to trade securities**".
**Undercuts.** **Relevance 5.** **Application note** "Facilitating" is not in §3(a)(4)(A) and is rejected by *Kramer*, *M&A West*, *Mapp* and *Coinbase* n.20. That is a fight, not a distinction, and it should be surfaced rather than papered over.

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### C. The heart of the track — software that **applies** user-entered parameters vs software that **supplies** them

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### C1. *CommandTRADE, LP / GlobalTec Solutions, LLP* — §15(a) no-action relief for **locally installed software that composes and transmits an order from user-specified parameters** · **[NEW to this track; P6 held it in S2d. Both letters fetched and read in full 5 Sep 2026]**

**Citation** · *CommandTRADE, LP*, SEC Staff No-Action Letter, Division of Market Regulation (Dec. 28, 2005) — https://www.sec.gov/divisions/marketreg/mr-noaction/commandtrade122805.htm · Incoming letter of Dec. 23, 2005 (Pickard and Djinis LLP) — https://www.sec.gov/divisions/marketreg/mr-noaction/commandtrade122305-incoming.pdf
**Type** Staff no-action letter (§15(a)) · **Date** 28 December 2005 · **Status** Listed as current on the Division's own no-action index under *Limited Broker-Dealer Functions* (verified 5 Sep 2026); **no withdrawal notation** (the index does flag withdrawals inline where they exist). Cited as current by Commissioner Peirce, *Neovest* dissent fn. 14.

**Verbatim, incoming letter at 1 (what the product is):**
> "GlobalTec and CommandTRADE are collectively developing a **computerized, user-programmable investment strategy tool** which will be electronically linked to participating broker-dealers (the 'CT Platform')."
> "The CT Platform will enable users to develop, select and implement one or more **personalized trading strategies**. Users may select stocks for analysis, **specify certain trading rules and parameters** …"

**Verbatim, incoming letter at 2 (the operative facts — this is the paragraph the whole track turns on):**
> "The CT Platform may also be programmed by the user to run in 'automatic' mode. **In automatic mode, the CT Platform monitors real-time market data and transmits a specified order to purchase or sell securities to the user's participating broker-dealer for execution when user-specified parameters, as determined by the user's personalized investment strategy, are met.** Users must affirmatively activate the system's automatic mode for such orders to be generated. **When the CT Platform operates in automatic mode, orders are transmitted only in accordance with instructions or parameters established by the user, and only involving individual stocks selected by the user.**"

**Verbatim, incoming letter at 2 (local installation, and the fee):**
> "CommandTRADE and GlobalTec anticipate charging users a one-time license purchase and installation fee for use of **the software that will reside on the user's computer**. Users will also be charged **a flat monthly fee** … The installation and monthly fees charged to users will not be based, either directly or indirectly, on the size, value or occurrence of securities transactions…"

**Verbatim, incoming letter at 4 (the parameter menu — note the provider *did* supply the building blocks):**
> "Users then apply one or more trading and investment rules to the selected securities, **choosing from approximately 60 different data sets and thresholds** such as trading volume, momentum and moving averages, as well as rules pertaining to the dollar size of the securities investments."

**Verbatim, outgoing letter (the staff's grant and its conditions):**
> "Based on the facts and representations set forth in your letter, the Staff will not recommend enforcement action to the Commission under Section 15(a) of the Exchange Act if GlobalTec and CommandTRADE engage in the activities you describe without registering as broker-dealers. We note in particular your representations that neither … will (i) charge fees to users or participating broker-dealers based, directly or indirectly, on … the size, value, or occurrence of any securities transactions …; (ii) hold or have access to customer funds or securities; (iii) be involved in any way with the execution, settlement, or clearance of transactions, including by soliciting, processing, or facilitating transactions in any way **(other than by providing the functionality of order transmission)**, or matching orders or **making decisions about routing orders** …; (vi) **recommend the purchase or sale of or otherwise provide investment advice with respect to any particular security** …"

**Verbatim, outgoing letter (the standard limitation):**
> "This position is based on the facts presented and the representations you have made, and **any different facts, including any change in the operation of the CT Platform … might require a different response.** Furthermore, this response only expresses the Staff's position on enforcement action and **does not purport to express any legal conclusions** on the question presented."

**Establishes** The staff declined to recommend enforcement against a **non-broker vendor of locally installed software that, unattended, monitored the market and transmitted complete orders to the user's own broker whenever the user's own parameters were met**. The stated grounds were: no transaction-based compensation; no funds or securities; no routing decisions; no security-specific advice; no account solicitation; broker-neutrality. **Order transmission was expressly carved *out* of the disqualifiers.** Nothing in either letter turns on where the software runs, and nothing turns on the fact that the *menu* of rule types was the provider's.
**Supports — the strongest supporting authority found on Track 2, and closer on the facts than anything in P6.** **Relevance 5.**
**Application note against the frozen configuration** CommandTRADE composed and transmitted with **no human act at all** per order and still drew relief; the frozen configuration inserts a fresh member act and never automates. On compensation the configuration is *narrower* than CommandTRADE (which also took a flat monthly fee **from participating broker-dealers** — the configuration takes nothing from brokers). The two live exposures: (a) it is a staff letter, expressly not a legal conclusion, and the frozen configuration's engine layer emits a fired signal that CommandTRADE's platform did not have as a separate paid service; (b) the 20% community share to a party that supplies nothing is a compensation fact CommandTRADE did not have.

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### C2. *S3 Matching Technologies LP* — "the Platform will route order messages based on those parameters" · **[NEW to this track; fetched and read in full 5 Sep 2026]**

**Citation** · *S3 Matching Technologies LP*, SEC Staff No-Action Letter, Division of Trading and Markets (July 19, 2012) — https://www.sec.gov/divisions/marketreg/mr-noaction/2012/s3-matching-tech-071912.pdf
**Type** Staff no-action letter (§15(a); also Rule 3b-16) · **Status** Current on the Division's index; no withdrawal notation (verified 5 Sep 2026).

**Verbatim, outgoing letter at 2:**
> "You state in your letter, that **neither the Company nor the Platform will have discretion over the routing destination of an order, and will not make any decisions on behalf of a Sending Broker to initiate a buy or sell order. Instead, a Sending Broker will determine the parameters by which an order message is communicated to a Receiving Broker through the Platform, and the Platform will route order messages based on those parameters.**"

**Verbatim, incoming letter at 2-3:**
> "Prior to sending an order, the Sending Broker must define the routing rules applicable to orders transmitted through the S3 Platform. In other words, **orders transmitted through the S3 platform must pass through the routing logic set up by the Sending Broker.** The S3 Platform, however, will not have any discretion over the routing of orders. Instead, the S3 Platform will route orders based on the order parameters set up by the Sending Brokers."
> "The S3 Platform is designed to submit orders to Receiving Brokers **only in accordance with the instructions or parameters established by the Sending Broker.** S3 does not make any order routing decisions for Sending Brokers nor does S3 make any decisions on behalf of Sending Brokers to initiate buy or sell orders."

**Verbatim, incoming letter at 1 n.2 (hosting was irrelevant):**
> "You state that **the software for the analytical tool will reside on Company servers in a secure data center.**"

**Establishes** The staff accepted "the customer sets the parameters; the software applies them" as a description of **non-discretionary** conduct — and did so where the software ran on the *vendor's own servers*. Between C1 (local) and C2 (hosted), **location of execution is not an operative fact in either direction in the staff's own reasoning; authorship of the parameters is.**
**Supports.** **Relevance 4.**
**Application note** Two limits that matter. The parameters here were **routing** parameters, not order-composition parameters (quantity, price, TIF); and the customer was itself a **registered broker-dealer** bearing the Rule 15c3-5 and best-execution obligations, with access restricted to institutional accounts under FINRA Rule 4512(c). A retail member is not a Sending Broker.

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### C3. *Datastream International Inc.* — the four factors, and the staff's own "who selects" axis · **[SUPERSEDES P6 S1 entry 10 — extended: the EJV Partners/UniVu description and the "customer … selects the search criteria" formulation, neither of which P6 carried]**

**Citation** · *Datastream International Inc.; Datastream International Limited*, SEC No-Action Letter, File Nos. 801-24551, 801-41452, 801-24281 (Div. of Investment Management, Office of Chief Counsel, Mar. 15, 1993) — https://www.sec.gov/divisions/investment/noaction/1993/datastream-international-031593-202a.pdf
**Type** Staff no-action letter (Advisers Act §202(a)(11); relief permitting withdrawal of adviser registration) · **Status** Still cited as current by the Commission in Rel. IA-6050 n.29 (2022). **Note carefully:** this letter says **nothing** about Exchange Act §3(a)(4)/§15(a). It is adviser-status authority only.

**Verbatim, staff outgoing letter at 2-3 (the four factors, complete):**
> "In addition to providing no-action assurance as previously discussed, the staff has given no-action assurance to providers of various computer software services offering calculations and pricing models. In not requiring these providers to register as investment advisers the staff considered a number of factors including **the sophistication of the users, the degree to which the users themselves perform the calculations, the degree to which the product is prepackaged and not personalized for each customer, and whether the calculations or models are based on traditional or standard calculations.** These factors are relevant in determining whether computer software services function merely as **mathematical tools to facilitate users' own analytical efforts** or whether they involve **the recommendation of securities**."

**Verbatim, staff outgoing letter at 1-2 (the three-part information test):**
> "The staff takes the position that the presentation of securities data or information to subscribers does not constitute furnishing investment advice or an analysis or report within the meaning of Section 202(a)(11) if (i) the information is readily available to the public in its raw state, (ii) the categories of information are not highly selective, and **(iii) the information is not organized or presented in a manner which suggests the purchase, holding or sale of any security or securities.**"

**Verbatim, staff outgoing letter at 4 (limits):**
> "On the basis of the facts and representations in your letters **and without necessarily agreeing with your legal analysis** … **different facts or representations may require a different conclusion.**"

**Verbatim, incoming letter at 11 — the requester's statement of the staff's own attribution axis. ◇ This sentence is in the *incoming* letter (Elizabeth Norsworthy, Esq., Jan. 18, 1993), i.e. it is counsel's characterisation of prior staff letters, not staff text. It is quoted here because it is the only "who selects" formulation located anywhere in the published federal material:**
> "…the view that information is not organized or presented [in a] manner suggesting the purchase, holding or sale of securities **where the customer or subscriber, not the information provider, selects the search criteria** or requests that the service provide certain select information."

**Verbatim, incoming letter at 11 (the *EJV Partners, L.P. / UniVu System* letter, pub. avail. Dec. 1992, as described in the published file) — the closest published statement of the axis under test:**
> "UniVu will enable customers to feed data directly into **various calculations and investment models which may be designed by the customer or provided by UniVu.** The calculations and models provided by UniVu will be generally available and widely used formulae taught in business schools and published in finance textbooks."
> "In granting no action assurance with respect to UniVu the staff found significant that **UniVu will be available only to institutional firms and not to the retail public.** … The staff found that the software services would **function merely as mathematical tools to facilitate users' own analytical efforts**, relying on representations that UniVu's subscribers will be **sophisticated institutional investors** who will receive the same software packages and who may arrange the various elements in a package to suit the customer's particular needs."

**Establishes** (i) The only articulated federal framework for software producing investment output, and its controlling dichotomy: **mathematical tools facilitating the user's own analysis** vs **the recommendation of securities**; (ii) factor 2 ("the degree to which the users themselves perform the calculations") is the one factor on the authorship axis and it is a **spectrum, not a switch**; (iii) the staff's practice, as described inside the published file, distinguishes models "designed by the customer" from models "provided by" the vendor — but grants relief **either way** where the output is a calculation rather than a recommendation; (iv) **user sophistication and institutional-only distribution were expressly "significant"** to the staff.
**Two-edged.** **Relevance 5.**
**Application note against the frozen configuration** Factor 2 is met about as fully as it can be — the member types every value into an empty field. Factor 3 (prepackaging) is met. **Factor 1 is failed head-on**: the frozen configuration's members are retail, and UniVu's relief expressly rested on institutional-only access. Factor 4 is neutral-to-adverse. And the three-part information test is failed by any output that presents a proposed purchase or sale. This letter is not a safe harbour for the engine layer; it is genuinely useful only for the runtime's composition step, read as arithmetic on the member's own numbers.

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### C4. *Taucher v. Born* — the only judicial findings of fact on software that mechanically applies **user-entered parameters** · **[SUPERSEDES P6 S2b entry 2.2 — P6 quoted the conclusions of law only; the findings of fact at *467-68 and *472-73, and the statutory holding at *475, are new here and change the reading]**

**Citation** · *Taucher v. Born*, 53 F. Supp. 2d 464 (D.D.C. 1999) (Sullivan, J.) — https://static.case.law/f-supp-2d/53/html/0464-01.html
**Type** Federal district court, post-trial judgment · **Date** 21 June 1999
**Status — stated precisely.** Never reviewed on the merits: the CFTC appealed, then **mooted its own appeal** by adopting 17 C.F.R. §4.14(a)(9) (Mar. 10, 2000), and the parties dismissed. The D.C. Circuit later **vacated the EAJA fee award**, holding the CFTC's defence "substantially justified" and observing that "'the cases upon which [the district court] relied' consist of **two concurring opinions** … the comments in the concurring opinions are just that: comments in concurring opinions." *Taucher v. Brown-Hruska*, 396 F.3d 1168, 1172, 1174-76 (D.C. Cir. 2005). **District-court authority only.**

**Verbatim, findings of fact 34-39, at 53 F. Supp. 2d 467-68 — the parameter findings:**
> "34. In order to generate meaningful trading advice, a user of the Dynamic Trader Trading Course or the Dynamic Trader Software is required to use it in conjunction with certain other information **that the user supplies** (the 'User Input'). **The User Input is made up of 'Price Data' and 'Parameters.'**"
> "36. **The Parameters are certain numerical values that the user may select in order to 'fine tune' the mathematical output of routines within the program** that examine a given set of Price Data. **A user will normally select the Parameters that, based on the user's knowledge or experience, are likely to lead to the most profitable or otherwise meaningful result.**"
> "37. By using the Dynamic Trader Trading Course or the Dynamic Trader Software in conjunction with a given set of Price Data and a given set of Parameters, **a user obtains output which the user must then interpret by using his own skills and knowledge.**"
> "38. Neither … require[s] the user to input any personal information. Specifically, they do not require the user to input information about his particular investment objectives, available capital, risk preferences, current portfolio holdings, or personal risk exposures…"
> "39. **Every person who uses the same Price Data and Parameters … will receive the same output regardless of his individual needs and circumstances.**"

**Verbatim, findings 47, 51, 54, at 468 — the "publisher never sees the configuration" findings:**
> "47. **Miner's Dynamic Trader software is incapable of actually executing trades on behalf of a customer, or otherwise performing any trading-related activity other than causing a computer to display the output of the price data or mathematical manipulation of the price data for a user to interpret.**"
> "51. When Miner wrote and published the Dynamic Trader Trading Course and the Dynamic Trader Software, he **was unfamiliar with the particular needs and circumstances of specific individuals who might use them.**"
> "54. **Miner does not and cannot alter the contents of the Dynamic Trader Trading Course or the Dynamic Trader Software after it has been distributed to a given user.**"

**Verbatim, findings 122-126, 133, 135, at 472-73 (the CrossCurrent software — a signal generator, user supplies only price data):**
> "124. By using the CrossCurrent software in conjunction with a given set of Price Data, a user obtains **either a specific trading recommendation or another meaningful output which the user must then interpret by using his own skills and knowledge.**"
> "133. **Briese's software is incapable of actually executing trades on behalf of a customer or otherwise performing any trading-related activity** other than causing a computer to display a trading recommendation or other piece of information for a user to interpret."

**Verbatim, at 475 — THE CRITICAL LIMIT, and the point P6 did not carry:**
> "**Each of the plaintiffs in this case falls squarely within the definition of a CTA.** They engage in the business of advising others, through publications, writings and electronic media, as to the value of or the advisability of trading in the futures market, and they do so for compensation or profit. Moreover, they are **not excluded** as publishers or producers of print or electronic data of general and regular dissemination because the furnishing of such services **is not solely incidental** to the conduct of their business or profession. To the contrary, **the furnishing of such services is the plaintiffs' primary business or profession.**"

**Verbatim, at 478 (the "exercise judgment" test):**
> "The plaintiffs, through their publishing activities, **do not go so far as to 'exercise judgment' on behalf of those who purchase their products.** … their advice and recommendations are identical for every customer … **They never make trades for their customers.** They simply sell their products and **leave it to their customers to decide for themselves** whether and how they will use the advice and recommendations purchased from the plaintiffs."

**Verbatim, at 478-79 (distinguishing AVCO — what tipped AVCO over):**
> "In AVCO, however, the investment advice went beyond that provided by the plaintiffs here. **AVCO not only provided specific buy and sell recommendations; it also provided a telephone number that customers could call to receive additional advice** about AVCO's general recommendations **and it provided customers 'a service by which brokers authorized by AVCO c[ould] actually make trades' for AVCO's customers.**"
> "In contrast to the defendants in AVCO, the plaintiffs here never engage in individual consultations … and under no circumstances do they make trades for their customers. **Indeed, their customers must go through some other licensed broker before they can act on any of the plaintiffs' recommendations.**"

**Verbatim, at 479 — the two-factor formulation the commission asked for:**
> "It is true that the plaintiffs seek to obtain money from their customers and, to that extent, they are pursuing a calling. Their calling, however, is **the selling of ideas, not the trading of commodity futures**, and they obtain money by selling their products **irrespective of whether or not their customers ever trade** … **Because the plaintiffs do not profit from their customers' gains or losses in the market and because the plaintiffs do not exercise judgment on behalf of their customers, the court concludes that their publications fall within the definition of protected speech.**"

**Verbatim, at 481-82 (the holding):**
> "**[T]he court concludes that the registration requirement of the CEA as applied to restrict the plaintiffs from engaging in their publishing activities constitutes an impermissible prior restraint upon the exercise of free speech.**"

**Establishes** (a) A federal court has made express findings of fact describing exactly the mechanism under test: **user-supplied Parameters, publisher-supplied routines, output the user must interpret, identical output for identical inputs, publisher unfamiliar with the user and unable to alter the software after distribution**; (b) those facts supported a finding that the publisher does **not** "exercise judgment" on the customer's behalf; **but** (c) **on the statutory question they made no difference at all** — the plaintiffs "fall[] squarely within the definition of a CTA," and the relief was constitutional, as-applied, district-court-only, and mooted.
**Supports on the "who exercises judgment" axis; is a NEGATIVE FINDING on the statutory axis.** **Relevance 5.**
**Application note against the frozen configuration** *Taucher* is the best language available — "the user must then interpret by using his own skills and knowledge"; "leave it to their customers to decide for themselves"; the publisher "does not and cannot alter the contents … after it has been distributed." But two of its five operative facts are **not** present in the frozen configuration: the runtime **does** perform a trading-related activity beyond display (it transmits an order under the member's credentials), and the member's customers do not "go through some other licensed broker before they can act" as an independent human step — the runtime is the step. And the *AVCO* distinction the court drew was precisely that AVCO "provided customers a service by which brokers … could actually make trades." That is the axis on which the frozen configuration is nearer to *AVCO* than to *Taucher*.

---

### C5. Staff Statement on Certain User Interfaces (13 Apr. 2026) — the only current staff text on **composing an order from user-identified parameters and customer-set defaults** · **[SUPERSEDES P6 S2 entry 13 — extended with the "default basis" language and disclosure item (9), neither of which P6 carried; re-fetched 5 Sep 2026]**

**Citation** · Division of Trading and Markets, *Staff Statement Regarding Broker-Dealer Registration of Certain User Interfaces Utilized to Prepare Transactions in Crypto Asset Securities* (Apr. 13, 2026), File No. 4-894 — https://www.sec.gov/newsroom/speeches-statements/staff-statement-regarding-broker-dealer-registration-certain-user-interfaces-utilized-prepare-staff-statement-regarding-broker-dealer-registration-certain-user-interfaces-utilized
**Type** Division staff statement (non-binding) · **Status** In effect; self-executing sunset five years from 13 April 2026.

**Verbatim (the mechanism — composition from the user's own parameters):**
> "Covered User Interfaces **prepare code enabling users to interact with blockchain protocols … by converting user-identified crypto asset securities transaction parameters (e.g., buy/sell, volume, crypto asset security, and price or price range) into blockchain-legible commands** for signature and transmission via the user's self-custodial wallet."

**Verbatim (customer-set defaults — the nearest primary treatment of order-entry presets located anywhere):**
> "Covered User Interfaces may present educational material to users to help users formulate and set their desired crypto asset securities transaction parameters **on a transaction-by-transaction or default basis.**"

**Verbatim (the conditions, in relevant part):**
> "the Covered User Interface **permits users to customize any default … transaction parameters** and … provides educational material to users to help users formulate and set their desired transaction parameters;"
> "for purposes of preparing a user's trading instructions … the Covered User Interface **only uses software that operates based on pre-disclosed and objective parameters that are independently verifiable**;"
> "aside from the functions described in this statement, the Covered User Interface **does not exercise any control or discretion over, or engage in any decision-making regarding**, the market information provided, or securities transactions;"
> "the Covered User Interface Provider **limits its compensation … to a fixed charge to the user** … and is product, execution route, execution venue, and counterparty agnostic;"

**Verbatim (disclosure item (9) — provider-supplied defaults are treated as a conflict source):**
> "(9) **any default crypto asset security transaction parameters, including how they are determined, the associated risks, and conflicts of interest** and the Covered User Interface Provider's policies, procedures, and controls to address any default … transaction parameters and any associated conflicts of interest or risks."

**Verbatim (the exclusion list):**
> "Except as outlined above, this statement does not extend to a Covered User Interface Provider that engages in … : negotiating terms for any transaction; solicitating specific crypto asset securities transactions; making investment recommendations or providing advice; … executing or settling transactions; or **taking or routing orders.**"

**Verbatim (fn. 1 and fn. 4 — the limits):**
> "**This statement, like all staff statements, has no legal force or effect** …"
> "…the Staff views … **do not apply to activities involving other securities.**"

**Establishes** In the staff's current thinking, **converting the user's own parameters into a signable instruction is "preparing", not broking** — and provider-supplied *defaults* are treated as a conflict of interest requiring express disclosure, i.e. the direction of concern runs toward the provider supplying values, not toward the software applying them. But **taking or routing orders is outside the statement entirely.**
**Supports as a design template; undercuts as authority.** **Relevance 4.**
**Application note** The frozen configuration exceeds the staff's parameter condition (no defaults at all, so nothing to customise and nothing under item (9) to disclose) and fails its routing exclusion (the runtime transmits). And fn. 4 disclaims application outside crypto asset securities altogether.

---

### C6. Exchange Act Rule 15c3-5 and its adopting release — where the Commission put responsibility when a non-broker composes orders with third-party technology · **[NEW to this track]**

**Citation** · 17 C.F.R. §240.15c3-5 — https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=240&section=240.15c3-5 · Adopting release, *Risk Management Controls for Brokers or Dealers with Market Access*, Exchange Act Rel. No. 34-63241 (Nov. 3, 2010) — https://www.sec.gov/rules/final/2010/34-63241.pdf
**Type** Commission rule and adopting release · **Status** In force at the 1 Sep 2026 snapshot.

**Verbatim, Rule 15c3-5(d):**
> "The financial and regulatory risk management controls and supervisory procedures described in paragraph (c) of this section shall be **under the direct and exclusive control of the broker or dealer** that is subject to paragraph (b) of this section."
> "(d)(1) Notwithstanding the foregoing, a broker or dealer … may reasonably allocate, by written contract, after a thorough due diligence review, control over specific regulatory risk management controls … **to a customer that is a registered broker or dealer** …"

**Verbatim, adopting release at 68:**
> "…a broker-dealer providing market access can use risk management tools or technology provided by a third party that is **independent of the customer**, so long as it has direct and exclusive control over those tools or technology and performs appropriate due diligence. … **When evaluating whether a technology provider is independent of the customer, the Commission will look at the substance rather than the form of the relationship.**"

**Establishes** The Commission's own regime presupposes that orders reaching a broker may be composed by a **non-broker customer using third-party technology**, and locates the pre-trade control obligation squarely at the **broker**, not at the technology provider. It nowhere suggests the technology provider becomes the party effecting the transaction.
**Supports structurally; carries one adverse habit of mind.** **Relevance 3.**
**Application note** The configuration's placement of pre-trade risk control at the member's broker matches the rule exactly. The transferable warning is the release's own sentence: on any question of who a party really is, "the Commission will look at the substance rather than the form of the relationship."

---

### D. Washington limb — RCW 21.20.020(1)

---

### D1. RCW 21.20.020(1) — verbatim, current text · **[NEW]**

**Citation** · RCW 21.20.020, "Unlawful acts of person advising another" — https://app.leg.wa.gov/RCW/default.aspx?cite=21.20&full=true
**Type** State statute · **History** [2002 c 65 § 2; 1998 c 15 § 2; 1959 c 282 § 2] · **Status** In force.

**Verbatim, in full:**
> "**(1) It is unlawful for any person who receives any consideration from another party primarily for advising the other person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise:**
> (a) To employ any device, scheme, or artifice to defraud the other person;
> (b) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon the other person; or
> (c) To engage in any dishonest or unethical practice as the director may define by rule.
> **This subsection (1) applies whether or not the person is an investment adviser, federal covered adviser, or investment adviser under this chapter or the Investment Advisers Act of 1940.**"

**Establishes** Three cumulative predicates before any of (a)-(c) can bite: **a person**, who **receives consideration from another party**, **primarily for advising** that person **as to the value of securities or their purchase or sale**. The final sentence detaches the section from adviser *status* — but not from the "primarily for advising" predicate, which is unchanged since 1959.
**Neutral-to-supports on the predicate; undercuts any reliance on the WA publisher exclusion.** **Relevance 5.**
**Application note against the frozen configuration** The runtime's publisher supplies no policy value and no view about any security. On the face of the words, consideration received for software that composes from the member's own numbers is not consideration received "primarily for advising … as to the value of securities or their purchase or sale." What the section does not do is stop at the Company's door: the *engine* layer and the community membership fee sit closer to the predicate than the runtime does.

---

### D2. Senate Bill 6483, ch. 65, Laws of 2002, § 2 — the amendment that added the "whether or not" sentence · **[NEW — decisive, and it changes the status of D3]**

**Citation** · Senate Bill 6483, Chapter 65, Laws of 2002, 57th Legislature, 2002 Regular Session, § 2 — https://lawfilesext.leg.wa.gov/biennium/2001-02/Pdf/Bills/Session%20Laws/Senate/6483.SL.pdf
**Type** Session law · **Date** approved 2002; **effective date 6/13/02** (stated on the certification page) · **Status** In force as codified.

**Verbatim, § 2 (amendment text, showing what was added — new matter underlined in the original, reproduced here as plain text):**
> "Sec. 2. RCW 21.20.020 and 1998 c 15 s 2 are each amended to read as follows: (1) It is unlawful for any person who receives any consideration from another party primarily for advising the other person as to the value of securities or their purchase or sale … **This subsection (1) applies whether or not the person is an investment adviser, federal covered adviser, or investment adviser under this chapter or the Investment Advisers Act of 1940.**"

**Cross-check performed:** the *preceding* amendment, **SB 6202, ch. 15, Laws of 1998, § 2** (effective 6/11/98) — https://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/Senate/6202.SL.pdf — was fetched and read in full. It re-lettered the subsections and **did not** contain the "whether or not" sentence. The sentence therefore entered the statute in **2002**, four years after *Brin v. Stutzman*.

**Establishes** The Washington Legislature, by request of the Department of Financial Institutions, **expressly detached RCW 21.20.020(1) from investment-adviser status in 2002**.
**Undercuts.** **Relevance 5.**
**Application note** The instinct that "we are not an investment adviser, so 21.20.020 cannot reach us" is foreclosed by the statute's own last sentence. The only remaining gate is "receives any consideration … primarily for advising."

---

### D3. *Brin v. Stutzman* — the only Washington appellate construction of RCW 21.20.020, and it is **superseded in part by statute** · **[NEW]**

**Citation** · *Brin v. Stutzman*, 89 Wash. App. 809, 830-39, 951 P.2d 291 (Div. I, Feb. 2, 1998) — https://static.case.law/wash-app/89/html/0809-01.html
**Type** State intermediate appellate opinion · **Date** 2 February 1998
**STATUS — stated precisely.** Its scope holding (below) was **superseded by RCW 21.20.020's 2002 amendment** (D2), enacted after the decision. No Washington appellate decision construing RCW 21.20.020 after 13 June 2002 was located (CourtListener v4 opinion search, `q="21.20.020"`, `filed_after=2002-06-13`: 11 results, none construing the section's scope). Its *reasoning* on "engaged in the business" is unaffected.

**Verbatim, at 833 (the superseded scope holding):**
> "In RCW 21.20.030, the Legislature used the statutorily defined term 'investment adviser' to indicate the scope of the subsection's coverage. In RCW 21.20.020, the Legislature described its coverage as 'any person who receives any consideration from another party **primarily for advising** the other person as to the value of securities or their purchase or sale' … **we conclude that the Legislature intended RCW 21.20.020 to govern persons satisfying the statutory definition of 'investment adviser' in RCW 21.20.005(6).** Accordingly, we must determine whether Stutzman falls under the RCW 21.20.005(6) definition of 'investment adviser.' **If he does not, the antifraud provisions of RCW 21.20.020 are not applicable to his conduct** giving rise to the lawsuit."

**Verbatim, at 835-36 (the "engaged in the business" reasoning — this part survives):**
> "…it is clear from case law construing federal securities law that **the receipt of compensation in exchange for advice regarding the purchase or sale of securities, standing alone, is not synonymous with 'engag[ing] in the business' of rendering investment advice 'for compensation'**, notwithstanding the opinion of the staff of the SEC above quoted."
> "First, Stutzman **did not hold himself out** as being in the business of giving investment advice. Second, although he accepted gifts from the two other women for whom he provided investment advice, **he did not charge them any fees**. Third … there is no evidence in the record that Stutzman was otherwise **financially interested** in the securities the parties were purchasing."

**Verbatim, at 837 (the purposive limit):**
> "**We do not believe that the Securities Act is aimed at persons who do not engage in the business of providing investment advice for compensation but who nevertheless may share their real or supposed investment expertise** with a friend or even among a small group of friends…"

**Establishes** (i) the *only* Washington appellate reading of "primarily for advising" — and it read the section as coextensive with adviser status, a reading the Legislature then reversed; (ii) a surviving Washington gloss on "engaged in the business": holding out, a definable charge for the advice, and financial interest in the outcome.
**Mixed; principally a status finding.** **Relevance 4.**
**Application note** Do not cite *Brin* for the scope of RCW 21.20.020(1) without the 2002 amendment beside it. Cite it for the three "engaged in the business" markers, on each of which the frozen configuration is on the favourable side as to the runtime's publisher (markets software not advice; the fee is not a charge for advice; no interest in the member's outcome).

---

### D4. RCW 21.20.005(6) — the Washington "investment adviser" definition and its publisher exclusion · **[NEW]**

**Verbatim, in relevant part:**
> "'Investment adviser' means any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities…"
> "'Investment adviser' does not include … **(d) a publisher of any bona fide newspaper, news magazine, news column, newsletter, or business or financial publication or service, whether communicated in hard copy form, by electronic means, or otherwise, that does not consist of the rendering of advice on the basis of the specific investment situation of each client** …"

**Establishes** Washington's publisher exclusion is broader than the federal one — it expressly covers a "service," "by electronic means," and turns on the absence of client-specific advice. **But it lives in the *definition*, and RCW 21.20.020(1) applies "whether or not the person is an investment adviser … under this chapter."**
**Supports on registration; does not reach 21.20.020(1).** **Relevance 4.**

### D5. WAC 460-24A-220 — the rule that supplies RCW 21.20.020(1)(c), and it self-limits to advisers · **[NEW]**

**Citation** · WAC 460-24A-220, "Unethical business practices — Investment advisers and federal covered advisers" — https://app.leg.wa.gov/WAC/default.aspx?cite=460-24A-220
**Verbatim (chapeau):**
> "**If you are an investment adviser, investment adviser representative, or a federal covered adviser**, you are a fiduciary and have a duty to act primarily for the benefit of your clients. … in accordance with **RCW 21.20.020 (1)(c)** and 21.20.110 (1)(g) you must not engage in dishonest or unethical business practices including, but not limited to, the following:"
**Verbatim (2) — Washington's own time-and-price carve-out, framed as *discretion*:**
> "(2) **Exercising any discretion in placing an order for the purchase or sale of securities for a client without obtaining written discretionary authority from the client** within ten business days after the date of the first transaction placed pursuant to oral discretionary authority, **unless the discretion relates solely to the price at which, or the time when, an order involving a definite amount of a specified security must be executed, or both.**"
**Verbatim (4)-(5):**
> "(4) Placing an order to purchase or sell a security for the account of a client **without authority to do so.**"
> "(5) Placing an order to purchase or sell a security for the account of a client **upon instruction of a third party without first having obtained a written third-party trading authorization from the client.**"

**Establishes** RCW 21.20.020(1)(a) and (b) apply to any person meeting the "primarily for advising" predicate, but subsection **(1)(c) operates only through a rule the director wrote for advisers**. And Washington's own time-and-price formulation, like FINRA's, calls the latitude **discretion**.
**Mixed.** **Relevance 4.**

### D6. *Ives v. Ramsden* ¶45 — the enforcement route for RCW 21.20.020 · **[NEW]**
**Citation** · *Ives v. Ramsden*, 142 Wash. App. 369, ¶45, 174 P.3d 1231 (Div. II, Jan. 2, 2008) — https://static.case.law/wash-app/142/html/0369-01.html
**Verbatim, ¶45:**
> "…it allowed individuals to sue investment brokers who allegedly violated 'any provisions of RCW 21.20.010, 21.20.140(1) or (2), or 21.20.180 through 21.20.230.' RCW 21.20.430(1). … **Also omitted from this list is a violation of RCW 21.20.020**, which makes it unlawful for a broker '[t]o engage in any dishonest or unethical practice as the director may define by rule' … WAC 460-24A-220."
**Establishes** RCW 21.20.020 is **not** among the provisions RCW 21.20.430(1) makes privately actionable; enforcement runs through the DFI director. *Brin* expressly reserved whether an implied private right exists.
**Supports (narrows practical exposure).** **Relevance 3.**

---

## S2 adverse register

| # | Authority | Threat | Does the frozen configuration distinguish? |
|---|---|---|---|
| **X1** | **Exchange Act §3(a)(35)(B)** + the "directly or indirectly" chapeau: "makes decisions … **even though some other person may have responsibility for such investment decisions**" | **5** | **No.** Local execution is invisible to the text. The prong is drafted to defeat "the member has responsibility." The only textual purchase is that the member "is authorized to determine" the values under prong (A) — and prong (B) is deliberately not limited by prong (A). No authority anywhere applies §3(a)(35) to software, in either direction (negative finding N1). |
| **X2** | ***SEC v. GEL Direct Trust***, ECF 38 at 7 & n.1: discretion inferred from "**six seconds later**"; and "**Even if GEL was not so authorized … the SEC alleges that GEL exercised discretion as a matter of fact**" | **5** | **Partly, and only by design.** The inference is drawn from the impossibility of a per-instance human instruction in machine time. Per-order approval answers it directly: a fresh, displayed, member act precedes every live transmission. Standing execution would forfeit the distinction entirely. Note also that the defendants' "our customers directed the trades; we merely kept the records" is the configuration's own framing, and it lost at the pleading stage. Distinguishing facts the configuration keeps: no per-trade compensation ($30/trade and $12.4m of "commissions" in *GEL*), no funds, no venue selection. |
| **X3** | ***CFTC v. Vartuli***, 228 F.3d 94, 111 (2d Cir. 2000): the words-vs-semiconductors sentence | **5** | **Partly, and on grounds the opinion itself supplies — but not the ground the commission proposes.** Treated at length below. |
| **X4** | ***Taucher v. Born***, 53 F. Supp. 2d at 475: "**Each of the plaintiffs in this case falls squarely within the definition of a CTA**" — notwithstanding findings 34-39, 47, 51 and 54 | **5** | **No.** This is the sharpest new finding in P7 Track 2. User-entered Parameters, output the user must interpret, a publisher unfamiliar with the user and unable to alter the software after distribution — **none of it took the publisher outside the statutory definition.** The relief was constitutional, as-applied, district-court-only, and mooted by regulation. Any argument that member-authored values remove the publisher from a *definition* has, in the one case where the facts were litigated, the wrong answer. |
| **X5** | **FINRA Rule 4512(a)(3)**: "**investment discretion** granted by a customer as to the price at which or the time to execute an order" — and **WAC 460-24A-220(2)**, which says the same thing in Washington | **4** | **No.** The re-peg rule and price band are, on both regulators' own drafting, *discretion*. The envelope must be argued as bounded discretion, never as non-discretion. Two regulators, federal SRO and Washington, agree. |
| **X6** | **FINRA Rule 3260(d)(1)** end-of-business-day expiry; **17 C.F.R. §240.17a-3(a)(17)(ii)** "**each natural person** to whom discretionary authority was granted"; **Rule 3260(b)** "to a stated individual or individuals" | **4** | **Partly.** The end-of-day sweep matches (d)(1)'s duration model exactly. But the exception is drafted only for members and RRs — an unregistered publisher is outside the rule, neither bound nor sheltered — and the recordkeeping framework has **no counterpart for a grant to a program**. An absence, not a prohibition; but there is no template to point at. |
| **X7** | ***SEC v. Coinbase***, slip op. 82: routing "**by providing trading instructions to third parties or directing how trades should be executed**," citing *GEL Direct* for "directives on **price and volume**" | **4** | **Contested.** A price band plus a re-peg rule is, on its face, a directive on price. The whole defence is that the directive is the member's own, given in advance in full parameter detail and re-affirmed by act before transmission. The opinion supplies **no test** for whose instruction it is (P6 negative finding N4, still open). |
| **X8** | **SEC, *Guide to Broker-Dealer Registration***: "effecting **or facilitating**"; "persons that **operate or control electronic or other platforms to trade securities**" · and **Staff Statement (13 Apr. 2026)**, excluding "**taking or routing orders**" | **4** | **No distinction on the face of either text.** "Facilitating" is not in the statute and four courts reject it — but that is a fight. The 2026 staff statement's own taxonomy puts *preparing* inside and *transmitting* outside; the runtime does both. And fn. 4 confines the statement to crypto asset securities. |
| **X9** | ***In re Neovest***, Rel. 34-92285 ¶8 (customers routed their own orders to customer-selected brokers) — and it made no difference; **Peirce dissent** ("the **form of the compensation is irrelevant** to … 'engaged in the business'"; the annual-membership-fee hypothetical) · **MFS v. SIPC** at 415 (regularity) | **4** | **No.** *Neovest* is the demonstration that "the customer decided and the customer routed" does not by itself defeat the claim; and Peirce's own reductio is a flat membership fee. Element one is supplied by regularity, which a continuously running runtime and a recurring membership both furnish. Compensation distinctions do not reach it. |
| **X10** | ***Datastream*** factor 1 (user sophistication) and the *EJV Partners/UniVu* ground: "**the staff found significant that UniVu will be available only to institutional firms and not to the retail public**" | **3** | **No.** The one factor of the four the configuration cannot satisfy. Every letter in this line rests to some degree on institutional or sophisticated users; the frozen configuration is retail by design. |
| **X11** | **Rel. 34-63241 at 68**: "**the Commission will look at the substance rather than the form of the relationship**" · **Reg ATS adopting release, 34-40760**: "the organization responsible for **arranging the collective efforts** will be deemed to have established a trading facility" | **3** | **Partly.** Neither is a §3(a)(4) look-through by its terms. Both record a settled institutional habit of disregarding interposed entities and formal splits. A three-layer architecture whose layers are commercially bound together invites the move. |
| **X12** | **Form 13F, Special Instruction vi(C)** — "**shared**" investment discretion is a recognised category | **3** | **No.** A regulator need not displace the member to reach another person; §3(a)(35) discretion can be shared, and the Commission's own form has a box for it. There is, however, no box for software. |

---

### *Vartuli* at length

**What the case actually decided, in two independent limbs.**

*CFTC v. Vartuli*, 228 F.3d 94 (2d Cir. Sept. 22, 2000) — https://static.case.law/f3d/228/html/0094-01.html — is good law, never overruled, and was relied on by *Universal City Studios v. Corley*, 273 F.3d 429 (2d Cir. 2001) and by Judge Failla in *United States v. Storm* (S.D.N.Y. 2024). It has a **statutory limb** and a **First Amendment limb**, and the commission's question lands differently on each.

**Limb 1 — the statutory holding, at 103-05.** The court held AVCO was a commodity trading advisor because it fell within 7 U.S.C. §1a(5)(A)(i): a person who "for compensation or profit, engages in the business of **advising others** … as to the **value of or the advisability of trading in**" futures. The court's reasoning, verbatim at 103:

> "There is no dispute that as the district court found, **AVCO advised others through the electronic media, for profit, as to 'the value or the advisability of trading in' futures contracts** for Swiss francs and Japanese yen. Avco II, 28 F.Supp.2d at 118. '**Throughout the day, in response to market conditions, Recurrence provided specific buy, sell, stop and profit objective recommendations to customers.**' Id. **AVCO therefore falls within the primary definition of a CTA: It engaged in the business of advising others, through Recurrence, as to the value or the advisability of trading in futures contracts, i.e., it told customers whether to buy or sell yen or Swiss franc futures.**"

And at 105, on the publisher exclusion:

> "…as the Supreme Court reasoned when analyzing the identical phrase in the Investment Advisers Act, regular dissemination requires that there be '… no indication that [dissemination] ha[s] been timed to specific market activity.' In this case, **the petitioners' recommendations were provided by software that was programmed to "speak" only when certain market conditions were met.** Thus, the petitioners' recommendations were timed to particular market activity and not 'regularly' disseminated." (quoting *R&W Technical Servs. v. CFTC*, 205 F.3d 165, 174-75 (5th Cir. 2000))
> "**The publishing of Recurrence was AVCO's primary business.**"

**Limb 2 — the First Amendment holding, at 111.** Verbatim:

> "**We do not think that Recurrence in the form it was sold and marketed by the defendants was 'speech' of the sort thus protected.**"
> "AVCO sold Recurrence not as a learning program, or an editorial, or an informational newsletter, but as a 'system' and 'trading program.' 'The system [was] automatic,' with 'NO complicated rules to follow. NO calculations to make. NO fundamentals to analyze. And NOTHING to interpret.' **Users were told they must 'follow the signals with no second-guessing.'** … The system was advertised and marketed on the basis that it was to be trusted implicitly and followed explicitly. **The customer or 'client' was to be an automaton, mechanically following Recurrence's commands.**"
> "**The language at issue here was to be used in an entirely mechanical way, as though it were an audible command to a machine to start or to stop.** … **It was to induce action without the intercession of the mind or the will of the recipient.** … From a First Amendment perspective, Recurrence, as sold, did not materially differ from a system in which Recurrence's signals electronically triggered trades. In other words, **the fact that the system used words as triggers and a human being as a conduit, rather than programming commands as triggers and semiconductors as a conduit, appears to us to be irrelevant for purposes of this analysis.**"

**Does the "the runtime's author distributes no policy" distinction have purchase in the opinion's own reasoning? Three answers, and they are not the same.**

**(a) On the statutory limb — yes, and squarely, in the opinion's own words.** The court's CTA holding rests entirely on the proposition that **AVCO supplied the advisory content**. Every operative sentence attributes the substance to the defendants: Recurrence "provided specific buy, sell, stop and profit objective recommendations"; "**it** told customers whether to buy or sell"; "**the petitioners'** recommendations were provided by software"; "the recommendations provided by software such as Recurrence." The Joint Pretrial Order, quoted at 99, repeats the attribution twice in one sentence:

> "The Defendants' customers pay AVCO's licensing fee, and, **if they wish to follow the instructions given by the Defendants' system** themselves, install the Defendants' computer program on their personal computers, procure a market reporting service to feed current market prices to the computer, and then **act on the instructions given by the Defendants' system**."

The **only** thing the AVCO user supplied was market data — a price feed. Every judgment in the output was AVCO's, including the price to buy or sell at, the protective stop, and where to take profits (the advertisement quoted at 99: "**You'll be advised on what pattern is present, at what price to buy or sell, at what price to place your protective stop, and where to take profits**"). A publisher who supplies **no** buy/sell content is not, on this reasoning, "advising others … as to the value of or the advisability of trading." The statutory predicate is simply absent. **That is a real distinction, and it is the same predicate as RCW 21.20.020(1)'s "primarily for advising."**

**(b) On the First Amendment limb — no, and the distinction is largely beside the point.** The speech/non-speech holding is expressly keyed to "**the form it was sold and marketed by the defendants**" — to marketing, holding-out and intended use, not to who authored the values. The court's axis is *learning program / editorial / newsletter* versus *system / trading program*. Authorship of parameters is nowhere an axis in the opinion; the words "parameter" and "configuration" do not appear in the analysis. A publisher who distributes no policy simply has less output — which means less to claim protection for, not more.

**(c) The "irrelevant" sentence is narrower than it is usually read — and, read correctly, it is still adverse.** Three limits, all internal to the opinion:

1. It is expressly bounded: "**appears to us to be irrelevant for purposes of this analysis**" — the analysis being whether the *output is speech*. It is not a holding that a human intermediary is irrelevant to **who decides**, and *Vartuli* contains no §3(a)(35)-style analysis at all.
2. The court immediately carved out the opposite case, at 111-12: "**To be sure, some purchasers of Recurrence doubtless used it as no more than a provider of information and advice. Recurrence communications to those customers may well have been 'speech,' and protected speech at that.**" The same output was speech or non-speech depending on **how the recipient used it** — which is a use-and-marketing test, not an authorship test.
3. The court closed with an express instruction against generalisation, at 112: "**Any assertion that a statement like or unlike the 'buy' and 'sell' instructions issued by a Recurrence-loaded computer is not fully protected by the Constitution should be subjected to careful and particularized analysis to insure that no speech entitled to First Amendment protection fails to receive it.**" And it **remanded to narrow the injunction** to "the dissemination of systems for the automatic trading of futures contracts," because the injunction as written would have required registration to publish Recurrence "**even if it were being used solely as speech.**"

**Two facts in *Vartuli* that the frozen configuration cannot use, and must not claim.**

- **Local installation did not save AVCO.** Recurrence was software the customer installed "on their personal computers," fed with the customer's own market-data subscription, at 99. The court never mentions it as relevant to anything. **Local installation is present in *Vartuli*, present in *CommandTRADE*, present in *Taucher* — and operative in none of them.**
- **A human being pressing the button did not save AVCO.** The customer had to "call [his or her] broker and place the appropriate trades." That is a stronger human interposition than a tap in a panel, and the court held it irrelevant *to the speech question*.

**Where this leaves the frozen configuration.** The distinction the commission proposes is real but narrower than hoped: it goes to **whether the publisher is advising**, not to **whether a human conduit matters**. On the first, *Vartuli*'s own statutory reasoning cuts the configuration's way, because every sentence of it turns on AVCO having authored the recommendations. On the second, *Vartuli* is adverse and no amount of member authorship touches it. And the whole opinion's real axis — how the thing was "sold and marketed," and whether the user was told to be "an automaton" — is a **marketing and intended-use** axis. That is where the configuration's "software tools, never a trading/execution/signal service" rule does its work, and it is doing more work than the no-policy-distributed fact is.

---

## Direct answers

### 1 · Does moving composition from a hosted party to the member's own local software change who "exercises investment discretion" under §3(a)(35), or who "effects transactions" under §3(a)(4)?

**On §3(a)(35): nothing in the primary material makes location relevant, and nothing in the primary material applies §3(a)(35) to software at all.** The definition reaches "a person" who acts "directly or indirectly," and prong (B) reaches a person who "makes decisions … even though some other person may have responsibility for such investment decisions." There is no locality term, no medium term, and no exclusion. The Commission's only elaboration of the definition, Rule 13f-1(b), extends it by **control**, and Form 13F's operative categories are "sole," "shared-defined" and "shared-other" — every one of them a *person*. **No release, rule, no-action letter, order or opinion was located applying §3(a)(35) to a software vendor, in either direction.** That absence is the finding (N1).

What *does* move on the §3(a)(35) axis is prong (A): "**is authorized to determine**." Where every value is typed by the member into an empty field, the member is the person authorized to determine, and the runtime is downstream of that determination. Prong (B), however, is drafted precisely so that prong (A)'s answer does not dispose of the question — and *GEL Direct* at 7 n.1 is the live demonstration that a court will find discretion "as a matter of fact" even where authorisation is doubtful, and will infer it from the shortness of the interval between market event and instruction.

**On §3(a)(4): the primary material treats authorship of the parameters as the operative fact and treats hosting/locality as no fact at all.** The two staff letters that address the mechanism directly split on location and agree on authorship. *CommandTRADE* (2005): software "that will reside on the user's computer," monitoring the market unattended and transmitting complete orders "when **user-specified parameters, as determined by the user's personalized investment strategy**, are met" — relief granted. *S3 Matching* (2012): software residing "on Company servers in a secure data center," where "**a Sending Broker will determine the parameters** … and the Platform will route order messages based on those parameters" — relief granted, with the staff repeating that "neither the Company nor the Platform will have discretion." **Local in one, hosted in the other; parameters set by the customer in both; relief in both.** Neither letter treats the machine's location as a fact worth mentioning in its grant.

Against that: *Neovest* ¶8 records that the customer routed to a customer-selected broker and the Commission found a §15(a) violation anyway; *GEL Direct* records the defendants pleading that they merely recorded "the trading its customers directed" and losing at the pleading stage; and the *Guide*'s "or facilitating" gloss and the 2026 staff statement's "taking or routing orders" exclusion both bite at the transmission step, which moving composition into the runtime does not remove — it moves *into* the runtime.

**Register position: on both provisions the primary material makes locality irrelevant and makes authorship of the values the axis that carries weight. Moving composition to the member's machine, taken alone, changes nothing; moving *authorship* to the member is what the material rewards, and that fact would be the same whether the code ran locally or in a data centre.**

### 2 · Does *Vartuli* reach a publisher who distributes no strategy?

**On the statutory limb, on the opinion's own reasoning, no.** *Vartuli*'s CTA holding is that AVCO "engaged in the business of **advising others** … i.e., **it told customers whether to buy or sell**" (at 103), and that "the **petitioners'** recommendations were provided by software" (at 105). A publisher whose software contains no view about any instrument, no threshold, no size, no price and no timing supplies nothing that answers to "advising others as to the value of or the advisability of trading." That is a genuine distinction and it is drawn in the court's own words, not imported.

**On the First Amendment limb, yes, and it is unaffected.** The words-vs-semiconductors sentence at 111 is aimed at the speech/non-speech question and is expressly confined to it ("for purposes of this analysis"). It says a human conduit does not turn a trading system's output into protected speech. It does not say who exercises discretion, and *Vartuli* never asks. What controls that limb is **how the thing was sold, marketed and intended to be used** — the axis on which the configuration's marketing rule, its absence of any "follow with no second-guessing" instruction, and its per-order approval requirement do the work.

**Three cautions.** (i) Local installation was present in *Vartuli* and did nothing. (ii) A human placing the order by telephone was present in *Vartuli* and did nothing. (iii) *Vartuli* remains the operative threshold authority when a financial-regulatory statute meets software — Judge Failla applied it in 2024 against a developer of free, open-source, non-custodial code (P6 S2b §2.4).

### 3 · Is there authority on software that mechanically applies user-entered parameters?

**Yes — four items, none of them a holding, and one of them adverse in a way P6 did not record.**

1. ***CommandTRADE / GlobalTec*** (SEC staff, §15(a), Dec. 28, 2005) is the closest and best. Locally installed, user-programmable, unattended: "orders are transmitted **only in accordance with instructions or parameters established by the user**, and only involving individual stocks selected by the user." Relief granted, on a condition list the frozen configuration meets or exceeds — except that the CT Platform took a flat monthly fee from participating broker-dealers, which the configuration does not.
2. ***S3 Matching Technologies*** (SEC staff, §15(a), July 19, 2012): "neither the Company nor the Platform will have discretion … **a Sending Broker will determine the parameters** … and the Platform will route order messages based on those parameters." Relief granted. Limits: routing parameters, not order composition; the customer was a registered broker-dealer; institutional accounts only.
3. ***Datastream*** (SEC staff, Advisers Act, Mar. 15, 1993) supplies the four factors, of which factor 2 — "**the degree to which the users themselves perform the calculations**" — is the only one on this axis, and it is a spectrum. The published file also carries the *EJV Partners/UniVu* description of models "**which may be designed by the customer or provided by UniVu**," and, in the requester's own words at 11, the "**where the customer or subscriber, not the information provider, selects the search criteria**" formulation ◇ (incoming letter, not staff text). Factor 1 and the UniVu ground both rest on **institutional, sophisticated users**, which the frozen configuration is not.
4. ***Taucher v. Born*** supplies the **only judicial findings of fact** on the mechanism, at 467-68: the User Input is "Price Data" and "**Parameters**," being "numerical values that the user may select in order to 'fine tune' the mathematical output"; "a user obtains output which **the user must then interpret by using his own skills and knowledge**"; the publisher "**was unfamiliar with the particular needs and circumstances of specific individuals who might use them**"; and "**does not and cannot alter the contents … after it has been distributed**." Those findings supported the conclusion at 478 that the plaintiffs "**do not go so far as to 'exercise judgment' on behalf of those who purchase their products**." **But at 475 the same court held that "each of the plaintiffs in this case falls squarely within the definition of a CTA."** User-entered parameters did not remove the publisher from the statutory definition; the relief was constitutional, as-applied, district-court-only, and mooted by regulation.

**And a fifth, current, on customer-set order-entry defaults specifically:** the 13 April 2026 staff statement, which treats "converting **user-identified** … transaction parameters … into blockchain-legible commands" as *preparing*, contemplates users setting parameters "**on a transaction-by-transaction or default basis**," and lists **provider-supplied defaults** as a conflict of interest requiring express disclosure. Its concern runs toward providers who *supply* values, not toward software that *applies* the user's.

**Nothing found is a holding, and no authority states the proposition as a rule.** The strongest are two staff letters that "do[] not purport to express any legal conclusions," a fact-bound 1993 letter that came "without necessarily agreeing with your legal analysis," and a district-court judgment whose statutory holding runs the other way. **On the specific question "does mechanically applying user-entered parameters put the software's publisher outside the statutory definitions" the answer in the primary material is: never squarely addressed, and in the one litigated instance, no.**

### 4 · Does RCW 21.20.020(1) reach a runtime publisher who supplies no values?

**The predicate is "receives any consideration from another party *primarily for advising* the other person as to the value of securities or their purchase or sale."** On the words, a publisher who supplies no policy value, no view about any instrument, and never sees the member's configuration is not receiving consideration primarily for advising anyone about the value of securities or their purchase or sale. The reasoning of *Vartuli* at 103 on the parallel CEA text points the same way: the statutory predicate attaches to the party whose recommendations the software carries.

**Four things must be said against any comfort in that:**

1. **The "not an investment adviser" escape is closed by statute.** RCW 21.20.020(1) applies "**whether or not the person is an investment adviser, federal covered adviser, or investment adviser under this chapter or the Investment Advisers Act of 1940.**" That sentence was added by **SB 6483, ch. 65, Laws of 2002, § 2** (effective 13 June 2002), verified from the session law. Washington's broad publisher exclusion in RCW 21.20.005(6)(d) — which expressly covers a "service … by electronic means" — sits in the *definition* and does **not** carry into 21.20.020(1).
2. ***Brin v. Stutzman* is superseded on precisely this point.** At 833 it held "the Legislature intended RCW 21.20.020 to govern persons satisfying the statutory definition of 'investment adviser' in RCW 21.20.005(6)." The 2002 amendment reverses that. Anyone relying on *Brin* for the section's scope is relying on superseded authority.
3. **No Washington appellate decision construes "primarily for advising" after the 2002 amendment.** CourtListener v4 opinion search, `q="21.20.020"`, `filed_after=2002-06-13`, returns 11 results, none construing the phrase. **The predicate is textually unglossed in Washington.** No DFI interpretation, order or rule addressing software tools under RCW 21.20.020(1) was located — and, given that WebSearch was unavailable, that is a not-searched finding as to DFI's own publications, not a verified negative.
4. **The section is not the whole of the exposure, and the runtime is not the whole of the configuration.** *Brin*'s surviving "engaged in the business" markers — holding out, a clearly definable charge for the advice, and financial interest in the client's outcome — are all favourable to the runtime's publisher. They are less obviously favourable to a **flat monthly community membership** paid for access to signal sources, or to the **20% share** paid to a party for "the name and member relationship." Whether either is consideration received "primarily for advising" is a question the Washington material does not answer, and it is the question that matters most.

**Register position: on the statutory text, RCW 21.20.020(1) does not obviously reach a party paid for software that composes from the member's own values; the phrase is unconstrued in Washington after 2002; and the section's reach must be tested against the *engine* and *membership* layers, not the runtime, because that is where the consideration and the securities-specific content meet.**

---

## Negative findings — explicit

**N1 — No authority of any kind applies Exchange Act §3(a)(35) to software, an algorithm, or a technology vendor.** Sources checked: 15 U.S.C. §78c(a)(35) full text; 17 C.F.R. §240.13f-1 (eCFR versioner, 2026-09-01); Form 13F General and Special Instructions; 17 C.F.R. §240.17a-3; FINRA Rules 3260 and 4512; the 13 April 2026 staff statement; *Coinbase*; *GEL Direct*; *Neovest*. The concept is applied only to persons. **The absence is the finding**, and it cuts both ways: there is no authority saying the runtime exercises discretion, and none saying it cannot.

**N2 — In the one litigated case where a court made findings about software that mechanically applies user-entered parameters, those facts did *not* remove the publisher from the statutory definition.** *Taucher v. Born*, 53 F. Supp. 2d at 475. This corrects an over-reading available from P6's S2b entry, which quoted *Taucher*'s conclusions of law without its statutory holding. **P6's S2b treatment of *Taucher* should be read with this correction.**

**N3 — No authority gives weight to open-source status, free distribution, or local installation under §3(a)(4), §15(a), or §3(a)(35).** P6's negative finding (S2 N5, S7 E2) is **confirmed and strengthened by three independent fact patterns in which local installation was present and operative in none**: Recurrence was installed "on their personal computers" (*Vartuli*, 228 F.3d at 99) and its publisher was held a CTA and required to register; the CT Platform was "software that will reside on the user's computer" (*CommandTRADE* incoming letter at 2) and the staff's grant does not mention it; the Dynamic Trader software was locally run and its publisher "does not and cannot alter the contents … after it has been distributed" (*Taucher*, finding 54) and he "fall[s] squarely within the definition of a CTA." The symmetrical point is that *S3 Matching*'s software ran on the vendor's own servers and relief was granted anyway. **Location of execution is not an operative fact anywhere in the material.** P6's own S2c file on open-source publisher liability was truncated by a session limit and contains no findings; that limb has never been completed.

**N4 — No authority was located on authorship attribution to a publisher who supplies no values and never sees the user's configuration.** The nearest primary texts are *Taucher* findings 51 and 54 (publisher unfamiliar with the user; cannot alter after distribution) — which did not defeat the statutory definition — and the *Datastream* incoming letter's "where the customer or subscriber, not the information provider, selects the search criteria," which is **counsel's characterisation, not staff text** ◇. **No holding, rule, release or staff letter states the proposition.**

**N5 — No SEC or FINRA treatment of "who is responsible for an order composed from customer-set defaults" was located.** FINRA Regulatory Notice 15-09 (algorithmic trading supervision) was fetched and read in full: it addresses **member firms'** supervision of their own algorithmic strategies and contains no discussion of customer-supplied parameters, third-party vendors, or attribution. FINRA Rules 3260 and 4512 contain nothing. 17 C.F.R. §240.17a-3(a)(6)(i) supplies only the two-category binary at A4. The single closest text in force is the 13 April 2026 staff statement's "on a transaction-by-transaction or **default basis**" and its disclosure item (9) on provider-supplied defaults — and that statement has no legal force, sunsets in 2031, and disclaims application outside crypto asset securities. **This is a not-fully-searched finding: WebSearch was unavailable, so FINRA interpretive letters and the SEC no-action database outside the Trading & Markets index were not keyword-searched.**

**N6 — *Brin v. Stutzman*'s holding on the scope of RCW 21.20.020 is superseded by RCW 21.20.020's 2002 amendment.** Verified by reading both amending session laws in full: **SB 6202, ch. 15, Laws of 1998, § 2** (effective 6/11/98) re-lettered the subsections and did **not** add the "whether or not" sentence; **SB 6483, ch. 65, Laws of 2002, § 2** (effective 6/13/02) did. Any register or memo citing *Brin* for the section's reach must carry this.

**N7 — No Washington appellate decision construes "primarily for advising" after 13 June 2002**, and no Washington DFI interpretation, order or rule addressing software tools under RCW 21.20.020(1) was located. The DFI publication search could not be run (no WebSearch); treat the DFI half as **not searched**, not as a verified negative.

**N8 — *SEC v. GEL Direct Trust* ECF 38 is a scanned PDF with no text layer**, and no OCR tooling was available in this environment. The quotations at B1 were transcribed from rendered page images at 150 dpi and are believed exact; counsel should confirm against 2023 WL 3166421 before any of them is put in a letter. The docket also shows the SEC **lost** its summary-judgment motion (ECF 65, 31 Mar. 2024); the merits outcome of the case was not traced further (CourtListener's dockets endpoint requires a token).

**N9 — *Quick America Corporation* (June 1993) and *Evare, LLC* (Nov. 30, 1998) could not be retrieved in primary form.** Both are the acknowledged ancestors of *CommandTRADE* (incoming letter at 4: "the CT Platform is substantially similar to the Market Data and Order Management Systems described in Quick America Corporation"; "Both the CT Platform and the system in Evare function primarily through the users' own desktop computer via a connection to a central hub or server"). Their existence and substance are corroborated **only inside other primary documents**. ◇. The date of *Quick America* is disputed between two SEC-published incoming letters (June 18 vs June 28, 1993) and remains unresolved.

**N10 — The word "parameter" appears nowhere in Exchange Act §3(a)(4), §3(a)(35), §15(a), 17 C.F.R. §240.17a-3, FINRA Rule 3260 or FINRA Rule 4512.** The entire "who authored the values" line rests on staff letters and one district-court judgment. There is no statute or rule on it.

---

## Search log

All work 5 September 2026. **WebSearch was unavailable — the session's 200-call budget was exhausted before this track began.** No product, project, methodology, person or domain name was used in any query. Every item below was located by direct HTTP fetch, index-walking, or a structured API.

| # | Source / URL | Method | Result |
|---|---|---|---|
| 1 | govinfo `USCODE-2023-title15-chap2B-sec78c.htm` | curl + declared UA + tag-strip + regex | §3(a)(35) complete; §3(a)(4)(A); §3(a)(5). Zero hits for "time and price"; zero "except" inside (35) |
| 2 | `static.case.law/f3d/228/html/0094-01.html` | curl; star-page anchors preserved | *Vartuli* full text, \*97-\*113. Pin-cites at \*99, \*103, \*105, \*110, \*111, \*112 |
| 3 | `static.case.law/f-supp-2d/53/html/0464-01.html` | curl; star-page anchors preserved | *Taucher* full text, \*464-\*483. Findings 34-39 (\*467), 47/51/54 (\*468), 122-135 (\*472-73); CTA holding (\*475); \*478-\*480 |
| 4 | `sec.gov/divisions/investment/noaction/1993/datastream-international-031593-202a.pdf` | curl + `pdftotext -layout` + page mapping | *Datastream* outgoing letter pp. 1-4 (four factors span pp. 2-3); incoming letter pp. 5-21 (EJV/UniVu at p. 11) |
| 5 | `sec.gov/divisions/marketreg/mr-noaction.shtml` (571 KB) | curl + grep for category headings and hrefs | *Limited Broker-Dealer Functions* index; located CommandTRADE and S3 URLs; confirmed no withdrawal notations |
| 6 | `sec.gov/divisions/marketreg/mr-noaction/commandtrade122805.htm` | curl + tag-strip | *CommandTRADE* outgoing letter, complete |
| 7 | `web.archive.org/cdx/search/cdx?...commandtrade...` → `sec.gov/.../commandtrade122305-incoming.pdf` | CDX API to discover the filename (note: **122305**, not 122805), then live curl (HTTP 200) | *CommandTRADE* incoming letter, 5 pp., complete |
| 8 | `sec.gov/divisions/marketreg/mr-noaction/2012/s3-matching-tech-071912.pdf` | curl + pdftotext | *S3 Matching* outgoing + incoming, complete |
| 9 | `sec.gov/newsroom/speeches-statements/staff-statement-regarding-broker-dealer-registration-certain-user-interfaces-...` | curl + tag-strip | 13 Apr. 2026 staff statement: mechanism, all conditions, disclosure items (1)-(9), exclusion list, fn. 1 and fn. 4 |
| 10 | eCFR versioner API, `2026-09-01/title-17.xml?part=240&section=…` | curl `--compressed` | §240.13f-1 complete; §240.17a-3(a)(6)(i), (a)(17)(ii); §240.15c3-5(a)-(d)(1) |
| 11 | `sec.gov/files/form13f.pdf` | curl + pdftotext | General Instructions 1-2; Special Instruction vi, Column 6 (SOLE / DEFINED / OTHER) |
| 12 | `sec.gov/rules/final/2010/34-63241.pdf` (6,562 lines) | curl + pdftotext + grep | Rel. 34-63241 at 65-68: third-party technology, "substance rather than the form" |
| 13 | `finra.org/rules-guidance/rulebooks/finra-rules/3260`, `/4512`, `/notices/15-09` | curl + tag-strip | Rule 3260(a)-(d) complete; Rule 4512(a)(3) complete; **RN 15-09 read in full — zero hits for third-party / vendor / customer-provided algorithms** |
| 14 | `app.leg.wa.gov/RCW/default.aspx?cite=21.20&full=true` (432 KB) | curl + tag-strip | RCW 21.20.020 complete with history line; RCW 21.20.005(6) definition and exclusions |
| 15 | `lawfilesext.leg.wa.gov/biennium/1997-98/…/Session Laws/{House,Senate}/` | directory listing → filtered to 1998-session bills → parallel fetch of 60 Senate SL PDFs → `pdftotext | grep "21.20.020"` | **HIT: 6202.SL.pdf = ch. 15, Laws of 1998**, eff. 6/11/98. §2 verified: **does not** contain the "whether or not" sentence |
| 16 | `lawfilesext.leg.wa.gov/biennium/2001-02/…/Session Laws/{House,Senate}/` | same technique, ~200 PDFs scanned | **HIT: 6483.SL.pdf = ch. 65, Laws of 2002**, eff. 6/13/02. §2 verified: **added** the "whether or not" sentence |
| 17 | `app.leg.wa.gov/WAC/default.aspx?cite=460-24A-220` | curl + tag-strip | WAC 460-24A-220 chapeau and items (1)-(9) |
| 18 | CourtListener v4 search API, `type=o&q="21.20.020"`; `q="primarily for advising"`; `filed_after=2002-06-13` | curl + JSON parse | 18 / 26 / 11 results; identified *Brin v. Stutzman* and *Ives v. Ramsden*; **no post-2002 construction of the phrase in Washington** |
| 19 | `static.case.law/wash-app/89/html/0809-01.html`; `.../142/html/0369-01.html` | curl; star pages | *Brin* at \*830-\*839 verbatim; *Ives* ¶45 verbatim |
| 20 | CourtListener v4 search API, `type=r` and `type=rd`, `q="GEL Direct"` | curl + JSON parse | Docket 1:22-cv-09803 (S.D.N.Y.); ECF 38 (MTD opinion) and ECF 65 (SJ opinion) located |
| 21 | `storage.courtlistener.com/recap/gov.uscourts.nysd.589655/…38.0.pdf` | curl; **no text layer** → `pdftoppm -r 150 -png` pp. 4-7 → read as images | *GEL Direct* ECF 38 at 4-7 and n.1, transcribed verbatim |
| 22 | CourtListener v4 search, `type=o&q="GEL Direct"` | curl | **0 results** — the opinion is not in the opinions corpus; RECAP is the only free route |

**Access notes (reproducible).**
- `sec.gov` and `govinfo.gov` require a declared User-Agent carrying a contact address. A **53,435-byte** response body is the reliable 404/block signature on sec.gov regardless of status code.
- `static.case.law/<reporter>/<vol>/html/<page>-01.html` carries star pagination as `<a … class="page-label">*NNN</a>`. **The tag has attributes before `class`**, so a regex anchored on `<a class="page-label"` silently matches nothing — use `<a [^>]*class="page-label"`.
- eCFR web pages 302-redirect automated clients; the versioner API at `/api/versioner/v1/full/<date>/title-NN.xml?part=&section=` with `curl --compressed` returns clean XML.
- **SEC no-action incoming letters are often at a *different date stem* from the outgoing letter** (here `commandtrade122305-incoming.pdf` against `commandtrade122805.htm`) and are not always linked from the index. The Internet Archive CDX API against `sec.gov/divisions/marketreg/mr-noaction*` with a urlkey filter is the fastest way to discover the true filename; the file then usually fetches live from sec.gov.
- **Washington session laws are directly browsable** at `lawfilesext.leg.wa.gov/biennium/<yyyy-yy>/Pdf/Bills/Session%20Laws/{House,Senate}/` as a plain directory listing. There is no chapter→bill index, but filtering to the right session's bill-number range and grepping ~200 PDFs for the RCW section resolves a chapter cite in about two minutes. This is the only free route to a Washington amendment's actual text.
- CourtListener v4 `/search/` is open (`type=o|r|rd`); `/opinions/` and `/dockets/` require a token. Bare parentheses inside a quoted phrase silently return COUNT 0.
- Some RECAP opinions are **scanned images with no text layer** and no OCR tooling is present in this environment; `pdftoppm -r 150 -png` followed by reading the images is a workable substitute for short opinions.


---

<br>

# S3 · TRACK 3 — Consent obtained in a third party's surface, recorded by the runtime

I have completed the research. Here is the deliverable.

---

# P7 TRACK 3 — Consent obtained in a third party's surface, recorded by the runtime

**Research date:** 5 September 2026. Every URL below was fetched and the quoted text extracted on that date unless marked ◇.
**Provenance tags:** `[CARRIED FROM P6]` = P6 entry re-verified and reproduced in full · `[SUPERSEDES P6 entry X]` = P6 entry replaced or materially extended · `[NEW]` = not in P6.
**Scope note:** P6's sub-track 3a (entries A1–A10) is carried forward here in full. P6 3b (standing authorization) and 3c (envelope-working) are outside P7 Track 3 and are not reproduced, except FINRA Rule 3260(b) (P6 3b/B4), which the commission expressly assigns to this track.

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## S3 — Track 3 authority register

### A. The federal electronic-signature layer — what it does and does not supply

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**T3-1 · Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001(a), (b)(1), (c), (h)** `[SUPERSEDES P6 entry A4 — extended to (a) and (c)]`
**URL:** https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap96-subchapI-sec7001.htm
**Type:** Federal statute · **Date:** Pub. L. 106-229 tit. I §101 (30 June 2000), 114 Stat. 464; effective 1 Oct 2000 · **Status:** good law (2023 Code edition, verified today).

**Verbatim §7001(a):**
> "Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce— (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation."

**Verbatim §7001(b)(1):**
> "This subchapter does not— (1) limit, alter, or otherwise affect any requirement imposed by a statute, regulation, or rule of law relating to the rights and obligations of persons under such statute, regulation, or rule of law **other than a requirement that contracts or other records be written, signed, or in nonelectronic form**;"

**Verbatim §7001(c)(1) (opening) — the consumer-disclosure limb:**
> "Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting interstate or foreign commerce be **provided or made available to a consumer in writing**, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if— (A) the consumer has affirmatively consented to such use and has not withdrawn such consent; (B) the consumer, prior to consenting, is provided with a clear and conspicuous statement— (i) informing the consumer of (I) any right or option of the consumer to have the record provided or made available on paper …"

**Verbatim §7001(e):**
> "Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that a contract or other record … be in writing, the legal effect, validity, or enforceability of an electronic record of such contract or other record **may be denied if such electronic record is not in a form that is capable of being retained and accurately reproduced for later reference** by all parties or persons who are entitled to retain the contract or other record."

**Verbatim §7001(h) — "Electronic agents":**
> "A contract or other record relating to a transaction in or affecting interstate or foreign commerce may not be denied legal effect, validity, or enforceability solely because its formation, creation, or delivery involved the action of one or more electronic agents **so long as the action of any such electronic agent is legally attributable to the person to be bound**."

**Establishes precisely what ESIGN does and does not supply on attribution.** ESIGN **does** supply: (i) a medium-neutrality rule for the record and the signature (§7001(a)); (ii) a rule that a machine's participation in forming the record is not itself a defect (§7001(h)); (iii) a retainability condition on which the writing-substitution can fail (§7001(e)); and (iv) a distinct, heavier consent-and-hardware-disclosure regime **only** where a law requires information to be provided *to a consumer* in writing (§7001(c)). ESIGN **does not** supply: any attribution rule of its own. §7001(h) conditions expressly on the electronic agent's action being "legally attributable … to the person to be bound" **under other law**, and §7001(b)(1) disclaims any effect on substantive rights and obligations save the writing/signing/nonelectronic-form requirement itself.
**Neutral-to-supports on form; a NEGATIVE finding on attribution.** **Relevance 5.**
**Application note:** ESIGN answers "may the authorization be electronic?" (yes) and "does the runtime's participation in composing it void it?" (no) — it does not answer "was the act the member's?" or "to whom does the authorization run"; and §7001(e) makes the journal's exportable, retainable rendering a condition of the writing-substitution, not a nicety.

---

**T3-2 · ESIGN definitions, 15 U.S.C. §7006(3), (5), (9), (13)** `[CARRIED FROM P6 entry A4 — extended to (9), (13)]`
**URL:** https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap96-subchapI-sec7006.htm
**Type:** Federal statute · **Date:** Pub. L. 106-229 tit. I §106 · **Status:** good law.

**Verbatim (3):** > "The term 'electronic agent' means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part **without review or action by an individual at the time of the action or response**."
**Verbatim (5):** > "The term 'electronic signature' means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and **executed or adopted by a person with the intent to sign the record**."
**Verbatim (9):** > "The term 'record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is **retrievable in perceivable form**."
**Verbatim (13):** > "The term 'transaction' means an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons …"

**Establishes:** The statutory "electronic agent" is defined by the *absence* of an individual's action at the time. A one-tap approval inside a displayed-terms panel is therefore **not** an electronic-agent action at all — it is an §7006(5) electronic signature: a "process … executed or adopted by a person with the intent to sign." §7006(5) is a definition, not an attribution test; it locates the operative question in intent and in the process's association with the record.
**Supports.** **Relevance 5.**
**Application note:** The configuration's key design fact — one explicit human act at the moment of order placement — moves it out of §7006(3) and into §7006(5); the cryptographic binding to the exact displayed terms is what makes the signature "logically associated with" the record.

---

**T3-3 · ESIGN §7002 — exemption to preemption (why the state UETA governs)** `[NEW]`
**URL:** https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap96-subchapI-sec7002.htm
**Type:** Federal statute · **Status:** good law.
**Verbatim §7002(a)(1):**
> "A State statute, regulation, or other rule of law may modify, limit, or supersede the provisions of section 7001 of this title with respect to State law only if such statute, regulation, or rule of law— (1) constitutes an enactment or adoption of the Uniform Electronic Transactions Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws in 1999, except that any exception to the scope of such Act enacted by a State under section 3(b)(4) of such Act shall be preempted to the extent such exception is inconsistent with this subchapter …"

**Establishes:** For a **state-law** writing requirement (which WAC 460-24A-220(5) is), the operative rule is the state's UETA enactment, not §7001, provided the enactment is the 1999 uniform act. Washington's ch. 1.80 RCW says in terms that it is (T3-8, RCW 1.80.190).
**Supports (routing).** **Relevance 4.**
**Application note:** This is the hinge that takes the Washington form question out of ESIGN and into RCW 1.80.060(3).

---

**T3-4 · ESIGN §7003 — specific exceptions (securities not excepted)** `[NEW]`
**URL:** https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap96-subchapI-sec7003.htm
**Type:** Federal statute · **Status:** good law.
**Verbatim §7003(a):**
> "The provisions of section 7001 of this title shall not apply to a contract or other record to the extent it is governed by— (1) a statute, regulation, or other rule of law governing the creation and execution of wills, codicils, or testamentary trusts; (2) a State statute, regulation, or other rule of law governing adoption, divorce, or other matters of family law; or (3) the Uniform Commercial Code, as in effect in any State, other than sections 1–107 and 1–206 and Articles 2 and 2A."
**Verbatim §7003(b)** — additional exceptions: court documents; notices of utility cancellation, credit/rental default and foreclosure, health- and life-insurance cancellation, product recall; hazardous-materials documents.

**Establishes:** A **verified negative**: there is no securities exception, no trading-authorization exception, and no brokerage-account exception anywhere in §7003. §7001 reaches a securities trading authorization on its face.
**Supports; is itself a negative finding.** **Relevance 4.**

---

**T3-5 · ESIGN §7004(a)–(b) — limits on regulator interpretation** `[NEW]`
**URL:** https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap96-subchapI-sec7004.htm
**Type:** Federal statute · **Status:** good law.
**Verbatim §7004(a):**
> "Subject to subsection (c)(2), nothing in this subchapter limits or supersedes any requirement by a Federal regulatory agency, **self-regulatory organization**, or State regulatory agency that records be filed with such agency or organization in accordance with specified standards or formats."
**Verbatim §7004(b)(2):**
> "Notwithstanding paragraph (1), a Federal regulatory agency shall not adopt any regulation, order, or guidance described in paragraph (1), and **a State regulatory agency is preempted by section 7001 of this title from adopting any regulation, order, or guidance** described in paragraph (1), unless— (A) such regulation, order, or guidance is consistent with section 7001 …; (B) such regulation, order, or guidance **does not add to the requirements of such section**; and (C) such agency finds … (iii) the methods selected to carry out that purpose **do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification** …"

**Establishes:** ESIGN contemplates SROs as a distinct class (see also §7006(11)) and constrains *state* regulators from adding to §7001 by guidance or order. It is technology-neutral by command: no regulator may privilege a particular signature technology.
**Neutral-to-supports.** **Relevance 3.**
**Application note:** Read with §7002, this bounds — but does not eliminate — what the Washington Securities Division could do by interpretive statement if it ever addressed the form of a third-party trading authorization. §7004(b)(2) governs interpretations of §7001; where RCW 1.80 supersedes §7001 for state law under §7002(a)(1), the constraint operates through the state act instead. **Untested; flagged as an open point, not a conclusion.**

---

**T3-6 · UETA §9 (attribution) as enacted in Delaware — 6 Del. C. §12A-109** `[CARRIED FROM P6 entry A5]`
**URL:** https://delcode.delaware.gov/title6/c012A/index.html
**Type:** State statute (uniform act as enacted; Delaware is the LLC's formation state) · **Date:** 72 Del. Laws c. 457 §1 (2000) · **Status:** in force.
**Verbatim:**
> "(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
> (b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) of this section is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law."

**Establishes:** Attribution is a **factual** question — "was it the act of the person" — and the efficacy of a security procedure is expressly an admissible route to proving it. The *effect* (to whom it runs) turns on context, circumstances and the parties' agreement.
**Strongly supports.** **Relevance 5.**
**Application note:** §9(a) is a proof rule; the runtime's trusted path, nonce and cryptographic binding are exactly "the efficacy of a security procedure."

---

**T3-7 · UETA §14 (automated transactions) as enacted in Delaware — 6 Del. C. §12A-114** `[CARRIED FROM P6 entry A6]`
**URL:** as T3-6 · **Status:** in force.
**Verbatim:**
> "In an automated transaction, the following rules apply:
> (1) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements.
> (2) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, **including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance**.
> (3) The terms of the contract are determined by the substantive law applicable to it."

**Establishes:** §14(2) is the exact fact pattern — an individual acting inside a machine interface, free to refuse, knowing the act will cause the machine to complete the transaction. That interaction *forms* the legally operative act.
**Strongly supports.** **Relevance 5.**
**Application note:** §14(2) is the doctrinal basis for "one act creates the authorization record," conditional on genuine freedom to refuse and on knowledge of what the act will cause — which is precisely what displaying the complete composed order is for. Note the condition is knowledge of *effect*, not a second confirmation.

---

**T3-8 · WASHINGTON'S UETA — ch. 1.80 RCW, Uniform Electronic Transactions Act** `[NEW — this is the single most important new authority in the track]`
**URL:** https://app.leg.wa.gov/RCW/default.aspx?cite=1.80&full=true
**Type:** State statute · **Date:** Laws 2020, ch. 57 (§§2–20); applies to records created on or after **11 June 2020** (RCW 1.80.030); RCW 1.80.020 amended by Laws 2024, ch. 188 §17 · **Status:** in force. Washington's prior electronic-signature statutes are gone: ch. 19.34 RCW (Washington Electronic Authentication Act) repealed by 2019 c 132 §8; ch. 19.360 RCW repealed by 2020 c 57 §90.

**ANSWER TO THE COMMISSION'S QUESTION: Washington DID enact UETA.** Verbatim, the provisions that matter:

**RCW 1.80.080 — Attribution (UETA §9), verbatim:**
> "(1) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
> (2) The effect of an electronic record or electronic signature attributed to a person under subsection (1) of this section is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law."

**RCW 1.80.060 — Legal recognition, verbatim:**
> "(1) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (2) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. **(3) If a law requires a record to be in writing, an electronic record satisfies the law. (4) If a law requires a signature, an electronic signature satisfies the law.**"

**RCW 1.80.130 — Automated transaction (UETA §14), verbatim:**
> "(1) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements. (2) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance. (3) The terms of the contract are determined by the substantive law applicable to it."

**RCW 1.80.010(16) — "Security procedure", verbatim:**
> "'Security procedure' means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, **encryption**, or callback or other acknowledgment procedures."

**RCW 1.80.010(10) — "Electronic signature", verbatim:**
> "'Electronic signature' means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."

**RCW 1.80.020 — Scope, verbatim (2), the ONLY exclusions:**
> "(2) This chapter does not apply to a transaction to the extent it is governed by: (a) A law governing the creation and execution of wills, codicils, or testamentary trusts. However, this chapter applies to nonjudicial settlement agreements under RCW 11.96A.220; and (b) Title 62A RCW other than RCW 62A.1-306 and chapters 62A.2 and 62A.2A RCW.
> (3) This chapter applies to an electronic record or electronic signature otherwise excluded … to the extent it is governed by a law other than those specified in subsection (2) of this section. **(4) A transaction subject to this chapter is also subject to other applicable substantive law.**"

**RCW 1.80.040(2)–(3) — the agreement condition, verbatim:**
> "(2) **This chapter applies only to transactions between parties each of which has agreed to conduct transactions by electronic means.** Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct. (3) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement."

**RCW 1.80.070(1), (3) — retainability, verbatim:**
> "(1) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered … **in an electronic record capable of retention by the recipient at the time of receipt**. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record. … (3) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient."

**RCW 1.80.190 — Relation to ESIGN, verbatim:**
> "This chapter modifies, limits, and supersedes the electronic signatures in global and national commerce act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. Sec. 7003(b)."

**Establishes:** (i) Washington has the identical attribution rule to Delaware, with encryption named in terms as a qualifying security procedure; (ii) **RCW 1.80.060(3) is a flat rule — "If a law requires a record to be in writing, an electronic record satisfies the law"**; (iii) the scope exclusions in RCW 1.80.020(2) are two, and neither reaches securities, RCW 21.20, or Title 460 WAC; (iv) three conditions attach — both parties must have agreed to transact electronically (RCW 1.80.040(2)), the record must be capable of retention (RCW 1.80.070(1)), and other substantive law still applies (RCW 1.80.020(4)); (v) RCW 1.80.190 makes ch. 1.80 the §7002(a)(1) superseding enactment, while preserving §7001(c) for consumer disclosures.
**Strongly supports the form position; carries three named conditions.** **Relevance 5.**
**Application note:** This is the provision that answers the Washington form question. Two textual caveats a court could press: (a) RCW 1.80.060(3) says "a law", and ch. 1.80 nowhere defines "law" — whether an administrative rule (a WAC) is "a law" for this purpose is **not addressed in the chapter and no Washington decision was found construing it**; (b) RCW 1.80.040(2)'s mutual-agreement condition means an authorization is only inside the chapter if the record shows the member agreed to transact electronically — an onboarding fact, not a runtime fact.

---

**T3-9 · *Aerotek, Inc. v. Boyd*, No. 20-0290 (Tex. 28 May 2021)** `[NEW]`
**URL:** https://storage.courtlistener.com/pdf/2021/05/28/aerotek_inc._v._lerone_boyd_michael_marshall_jimmy_allen_and_trojuan_1.pdf (majority); dissent at …_trojuan.pdf
**Type:** State supreme court opinion construing the uniform UETA §9 attribution provision (Tex. Bus. & Com. Code §322.009, textually identical to RCW 1.80.080 and 6 Del. C. §12A-109) · **Date:** opinion delivered 28 May 2021; dissent delivered 28 June 2021 · **Status:** good law; reported at 624 S.W.3d 199 ◇ (reporter pagination not verified — case.law coverage ends before this volume).

**Verbatim (slip op. 9–10):**
> "Thus, security procedures may include requiring personal identifying information—such as a social security number or an address—to register for an account; assigning a unique identifier to a user and then tying that identifier to the user's actions; maintaining a single, secure system for tracking user activities that prevents unauthorized access to electronic records; business rules that require users to complete all steps in a program before moving on or completing it; and timestamps showing when users completed certain actions. These examples are illustrative and not exclusive under Section 322.009(a). **The efficacy of the security procedure provides the link between the electronic record stored on a computer or in a database and the person to whom the record is attributed. A record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials.**"

**Verbatim (slip op. 15):**
> "Under Section 322.009's framework for electronic-signature attribution, **once Aerotek proved its security procedures, the burden shifted to the Employees to demonstrate how their electronic signatures could have wound up on the MAAs without their having placed them there themselves. Mere denials do not suffice.**"

**Verbatim (slip op. 18):**
> "The Act does not limit the ways in which electronic contracts may be proved valid, but it specifically states that proof of the efficacy of the security procedures used in generating a contract can prove that an electronic signature is attributable to an alleged signatory. An opposing party may, of course, offer evidence that security procedures lack integrity or effectiveness and therefore cannot reliably be used to connect a computer record to a particular person. **But that attribution cannot be cast into doubt merely by denying the result that reliable procedures generate.**"

**Verbatim (dissent, slip op. 7–8) — the adverse reading:**
> "The Act provides that evidence of the 'efficacy of any security procedure' can establish that an 'electronic signature is attributable to a person,' but it also provides that the 'effect' of that evidence must be 'determined from the context and surrounding circumstances . . . and otherwise as provided by law.' … In other words, the Act **makes evidence of the 'efficacy of security procedures' sufficient to establish the validity of an electronic signature, but it does not make that evidence conclusive in the face of contrary evidence.**"

**Establishes:** The most developed judicial construction located of the uniform attribution provision. The enumerated qualifying security procedures map one-for-one onto the frozen configuration: unique identifier tied to user actions; a single secure system that prevents unauthorized access to the records; business rules that force completion of all steps; timestamps. And the sentence "A record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials" is the doctrinal statement of the design's central claim. The court also allocates the burden: once the proponent proves the procedure, a bare denial does not create a fact issue.
**Strongly supports.** **Relevance 5.**
**Application note:** Persuasive only in Washington and Delaware — a Texas construction of an identical uniform provision. The immutability-after-mint and storage-enforcement properties are what the sentence at slip op. 9–10 is about; the engine's inability to alter the record after approval is exactly "cannot be created or changed."

---

**T3-10 · *Garcia v. Stoneledge Furniture LLC*, No. A166785 (Cal. Ct. App. 17 May 2024) — ADVERSE** `[NEW]`
**URL:** https://storage.courtlistener.com/pdf/2024/05/17/garcia_v._stoneledge_furniture_llc.pdf (official: https://www.courts.ca.gov/opinions/documents/A166785.PDF)
**Type:** State intermediate appellate opinion construing California's UETA §9 (Cal. Civ. Code §1633.9(a)) · **Date:** 17 May 2024 · **Status:** good law.

**Verbatim (slip op. 14):**
> "A proponent seeking to authenticate an electronic signature must show the electronic signature "'was the act of the person,'" which could be shown "'in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.'" … For example, a party may present evidence that the signatory was required to use a unique, private login and password to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions."

**Verbatim (slip op. 14–15):**
> "Here, RAC failed to carry its burden because the evidence it provided … **did not show that only Garcia could have placed the electronic signature on the arbitration agreement.** … The trial court found that Dale's declaration did not detail the security precautions regarding the use of the Taleo username and password; **the arbitration agreement lacked a date, time, or IP address; and the agreement contained no indication it was created within the Taleo system.**"

**Establishes:** The mirror image of *Aerotek*. Where the record does not itself carry provenance — a date, a time, an origin identifier, an indication that it was created inside the claimed system — the proponent fails, and the California line (via *Ruiz v. Moss Bros. Auto Group* (2014) 232 Cal.App.4th 836, 844–845 ◇, and *Bannister v. Marinidence Opco, LLC* (2021) 64 Cal.App.5th 541 ◇, both known here only as quoted in *Garcia*) treats a signatory's denial as creating a fact issue. There is a genuine split with *Aerotek* on burden.
**Undercuts — the sharpest evidentiary adverse authority in this track.** **Relevance 5.**
**Application note:** The three things *Garcia* found missing — date, time, origin identifier, and an intrinsic indication that the record was created inside the claimed system — are the exact fields the mint must carry. The finding turns on what the *record* shows, not on what a witness says about the system. It also means "only the member could have produced this record" must be provable, not merely asserted.

---

### B. The agency-law layer

---

**T3-11 · Restatement (Third) of Agency §8.06, black letter and comment b — as reproduced verbatim by a court** `[CARRIED FROM P6 entry A7 — re-verified today at slip op. 38–40]`
**Primary carrier:** *New Enterprise Associates 14, L.P. v. Rich*, C.A. No. 2022-0406-JTL (Del. Ch. 2 May 2023) (Laster, V.C.), slip op. at 38–40.
**URL:** https://storage.courtlistener.com/pdf/2023/05/02/new_enterprise_associates_14_l.p._v._rich.pdf
**Type:** Court opinion quoting Restatement (Third) of Agency §8.06 (Am. L. Inst. 2006) · **Date:** 2 May 2023 · **Status:** good law.

**Verbatim black letter (slip op. 39, quoting §8.06):**
> "Conduct by an agent that would otherwise constitute a breach of duty . . . does not constitute a breach of duty if the principal consents to the conduct, provided that
> (a) in obtaining the principal's consent, the agent
>  (i) acts in good faith,
>  (ii) discloses all material facts that the agent knows, has reason to know, or should know would reasonably affect the principal's judgment unless the principal has manifested that such facts are already known by the principal or that the principal does not wish to know them, and
>  (iii) otherwise deals fairly with the principal; and
> (b) the principal's consent concerns either a specific act or transaction, or acts or transactions of a specified type that could reasonably be expected to occur in the ordinary course of the agency relationship."

**Verbatim comment b, as reproduced (slip op. 39–40):**
> "The commentary explains that these conditions impose 'mandatory limits on the circumstances under which an agent may be empowered to take disloyal action.'"
> "[A]n agreement that contains general or broad language purporting to release an agent in advance from the agent's general fiduciary obligation to the principal is not likely to be enforceable. This is because a broadly sweeping release of an agent's fiduciary duty may not reflect an adequately informed judgment on the part of the principal; if effective, the release would expose the principal to the risk that the agent will exploit the agent's position in ways not foreseeable by the principal at the time the principal agreed to the release."
> "In contrast, when a principal consents to specific transactions or to specified types of conduct by the agent, the principal has a focused opportunity to assess risks that are more readily identifiable."
> "The **'agent bears the burden of establishing that the requirements stated in this section have been fulfilled.'**"

**Establishes:** Consent runs to the *agent* whose conduct it authorizes, and that agent bears the burden of proving the §8.06 conditions were met. The validating variable is **specificity of the authorized conduct** — not duration, not periodicity, not who owns the pixels.
**Supports per-order approval on complete displayed terms; undercuts any broadly-worded blanket enablement.** **Relevance 5.**
**Application note:** §8.06 comment b's burden allocation is the doctrinal reason the journal must be able to prove *what was displayed*, not merely that a tap occurred. Combined with *Garcia*, the burden sits on the party relying on the authorization and it is a burden about the content of the surface at the moment of the act. ◇ **for source of text only** — the ALI text is paywalled; this is a court's reproduction, and counsel should confirm against the ALI original.

---

### C. The SEC layer — consent obtained in one surface, relied on by another

---

**T3-12 · SEC Rel. Nos. 33-7233; 34-36345; IC-21399, *Use of Electronic Media for Delivery Purposes* — Example 6 and n.29** `[CARRIED FROM P6 entry A1 — re-verified today with page pins]`
**URL:** https://www.sec.gov/rules/interp/33-7233.txt
**Type:** Commission interpretive release · **Date:** effective 6 Oct 1995 · **Status:** good law; built on, not superseded, by the 2000 release.

**Verbatim (Example 6, at pages 12–13 of the text as marked by the release's own `BEGINNING OF PAGE` markers; quoted language on page 13):**
> "The underwriter may satisfy its obligation under Rule 15c2-8(b) to John and Jane Doe by this means since both have consented to electronic delivery through the Company's Internet Web site. **Although consent was not provided directly to the underwriter, the underwriter can rely on the consent supplied to the Company. Similarly, had the consent been provided to the underwriter, the Company could rely on it as well.**"

**Verbatim (n.29, at page 10):**
> "If a consent is used, the consent should be an informed consent. Recipients generally should be apprised: that information provided would be available through a specific electronic medium or source (e.g., via a limited proprietary system, or at a World Wide Web site); of the potential that investors may incur costs (e.g., on-line time); and of the period during, and the documents for, which the consent will be effective."

**Verbatim (n.29 continued, at page 11):**
> "Moreover, an issuer could rely on consents provided to an underwriter, a brokerage firm or other service provider. Similarly, an underwriter or brokerage firm could rely on a consent that its customer provided to the issuer, and deliver that issuer's documents through the same electronic medium."

**Establishes:** Consent obtained in party A's surface can be relied on by party B, who never obtained it, and reliance runs in both directions. The consent must name the medium/source and state its duration and scope.
**Supports the topology.** **Relevance 5.**
**Application note:** The closest primary analogue to "the member acts inside the engine's interface; the runtime relies on it" — **but the subject matter is document delivery, not trade authorization** (see Negative Finding 5), and the release makes the *relying* party's obligation the operative one.

---

**T3-13 · SEC Rel. Nos. 33-7856; 34-42728; IC-24426, *Use of Electronic Media*, footnote 25 and footnote 26** `[CARRIED FROM P6 entries A2 and A3 — re-verified today]`
**URL:** https://www.sec.gov/files/rules/interp/34-42728.htm (landing page https://www.sec.gov/rules/interp/34-42728.htm renders metadata only) · 65 FR 25843
**Type:** Commission interpretive release · **Date:** 28 Apr 2000, effective 4 May 2000 · **Status:** good law.

**Verbatim n.25, in full:**
> "*Id.* at Ex. 6. Under this interpretation, we also believe, and we further clarify today, that **an issuer or broker-dealer may rely on a consent obtained by a third-party document delivery service, but the issuer or broker-dealer retains the ultimate responsibility for assuring that the consent is authentic** and for the delivery of required documents."

**Verbatim n.26:**
> "Generally, a consent is considered to be informed when an investor is apprised that the document to be provided will be available through a specific electronic medium or source (for example, through a limited proprietary system or at an Internet web site) and that there may be costs associated with delivery … In addition, for a consent to be informed an investor must be apprised of the time and scope parameters of the consent. For example, an investor should be made aware of whether the consent is indefinite and extends to more than one type of document."

**Verbatim (n.23 call-site, Section II.A.1):**
> "As with written or electronic consent, telephonic consent must be obtained in a manner that **assures its authenticity**."

**Establishes:** (i) Reliance on a consent obtained by a *third-party service* — not merely by another regulated intermediary — is expressly permitted; (ii) but the party that **acts on** the consent bears "the ultimate responsibility for assuring that the consent is authentic." **Authenticity, not proximity, is the operative requirement.**
**Supports — and simultaneously defines the exposure.** **Relevance 5.**
**Application note:** The single closest authority to the mechanism's hardest point. It locates responsibility for authenticity with the party that **acts**, i.e. the runtime layer and whoever publishes it — not the engine whose interface framed the workflow. It converts the cryptographic binding from a design nicety into the thing the position stands on. Again: **document delivery, not trade authorization.**

---

**T3-14 · SEC Rel. IA-5248, *Commission Interpretation Regarding Standard of Conduct for Investment Advisers*, at 26 and n.68** `[SUPERSEDES P6 entry A8 — adds footnote 68]`
**URL:** https://www.sec.gov/rules/interp/2019/ia-5248.pdf
**Type:** Commission interpretation, 17 CFR Part 276, File No. S7-07-18, RIN 3235-AM36 · **Date:** effective 12 July 2019 · **Status:** good law.

**Verbatim (p. 26):**
> "The fact that disclosure must be full and fair such that a client can provide informed consent **does not require advisers to make an affirmative determination that a particular client understood the disclosure** and that the client's consent to the conflict of interest was informed. Rather, **disclosure should be designed to put a client in a position to be able to understand and provide informed consent** to the conflict of interest. A client's informed consent can be either explicit or, depending on the facts and circumstances, implicit. We believe, however, that **it would not be consistent with an adviser's fiduciary duty to infer or accept client consent where the adviser was aware, or reasonably should have been aware, that the client did not understand** the nature and import of the conflict."

**Verbatim (n.68, at p. 26) — NEW, not in P6:**
> "We do not interpret an adviser's fiduciary duty to require that full and fair disclosure or informed consent be achieved in a written advisory contract or otherwise in writing. For example, an adviser could provide a client full and fair disclosure of all material facts … through a combination of Form ADV and other disclosure and the client could implicitly consent by entering into or continuing the investment advisory relationship with the adviser."

**Verbatim (p. 8):**
> "The fiduciary duty follows the contours of the relationship between the adviser and its client, and the adviser and its client may shape that relationship by agreement, provided that there is full and fair disclosure and informed consent."

**Establishes:** The Commission's informed-consent standard is a **design standard, not an outcome standard** — the surface must put the person in a position to understand; it need not prove they did. Two riders: consent may **not be inferred** where the party knew or should have known it was not understood (the caution the commission asked to be surfaced); and, per n.68, **the Commission's own fiduciary standard imposes no writing requirement at all** on informed consent.
**Supports the display-then-act design; carries an express caution.** **Relevance 4.**
**Application note:** n.68 cuts both ways. It confirms that no federal fiduciary writing requirement stands behind the informed-consent concept — so any writing requirement here comes from FINRA 3260(b), 17 CFR 240.17a-3(a)(17)(ii), 17 CFR 275.204-2(a)(9) or WAC 460-24A-220(5), not from the fiduciary standard. But it also shows the Commission is content with *implicit* consent by conduct in the adviser frame, which weakens any argument that an explicit per-order tap is doing distinctive legal work under IA-5248. **The transfer of IA-5248 from advisers-and-conflicts to a non-adviser authorization mechanism is analogical: ◇ for transfer, not for text.**

---

### D. The authorization-record layer — what federal law actually demands of the artifact

---

**T3-15 · FINRA Rule 3260(b) (Discretionary Accounts)** `[CARRIED FROM P6 3b entry B4]`
**URL:** https://www.finra.org/rules-guidance/rulebooks/finra-rules/3260
**Type:** SRO rule · **Date:** amended SR-FINRA-2019-009, eff. 8 May 2019 (successor to NASD Rule 2510) · **Status:** in force; re-verified today. **No fee-based carve-out exists in the rule text**; the only exceptions are (d)(1) time-and-price and (d)(2) money-market bulk exchanges.

**Verbatim (b), complete:**
> "No member or registered representative shall exercise any discretionary power in a customer's account unless such customer has given **prior written authorization to a stated individual or individuals** and the account has been accepted by the member, as evidenced in writing by the member or the partner, officer or manager, duly designated by the member, in accordance with Rule 3110."

**Verbatim (c):**
> "The member or the person duly designated shall approve promptly in writing each discretionary order entered and shall review all discretionary accounts at frequent intervals…"

**Establishes:** In the brokerage frame, limited discretionary authority is (i) member-scoped and RR-scoped by its terms, (ii) granted by prior written authorization **to a stated individual or individuals**, and (iii) has no expiry and no renewal cadence — it runs until revoked.
**Neutral-to-undercuts.** **Relevance 4.**
**Application note:** "To a stated individual or individuals" is the hardest single phrase in the track for a design whose grantee is a locally-running program. Note also the rule's addressees: "No member or registered representative…" — an unregistered runtime publisher is outside the rule, neither bound by it nor sheltered by it.

---

**T3-16 · 17 C.F.R. §240.17a-3(a)(17)(ii) and (a)(6)(i)** `[CARRIED FROM P6 entry A10 — re-verified today]`
**URL (eCFR versioner API, 1 Sep 2026 snapshot):** https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=240&section=240.17a-3
**Type:** SEC rule · **Status:** in force as of the 1 Sep 2026 snapshot.

**Verbatim (a)(17)(ii), complete:**
> "If an account is a discretionary account, a record containing **the dated signature of each customer or owner granting the authority and the dated signature of each natural person to whom discretionary authority was granted.**"

**Verbatim (a)(6)(i)(A), in part:**
> "The memorandum must show the terms and conditions of the order or instructions and of any modification or cancellation thereof, the account for which entered, the time the order was received, the time of entry, the price at which executed, the identity of each associated person, if any, responsible for the account, **the identity of any other person who entered or accepted the order on behalf of the customer, or, if a customer entered the order on an electronic system, a notation of that entry**; and, to the extent feasible, the time of execution or cancellation. … An order entered pursuant to the exercise of discretionary authority by the member, broker or dealer, or associated person thereof, **must be so designated**."

**Establishes:** Federal law's own authorization-record standard: a dated signature from the grantor **and** a dated signature from **each natural person** to whom discretion was granted; plus an order-ticket distinction between a customer-entered order on an electronic system and a discretion-entered order.
**Supports the journal's provenance chain as the right *kind* of artifact; undercuts any framing in which software is the grantee of discretion.** **Relevance 4.**
**Application note:** "If a customer entered the order on an electronic system, a notation of that entry" is the recordkeeping counterpart of the mechanism exactly — and the rule treats that as the *non*-discretionary branch. There is no counterpart in (a)(17)(ii) for a grant to a program; that is an absence, not a prohibition, but it means there is no template to point at.

---

**T3-17 · 17 C.F.R. §275.204-2(a)(8), (a)(9) — the Advisers Act counterpart** `[NEW]`
**URL (eCFR versioner API, 1 Sep 2026 snapshot):** https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-17.xml?part=275&section=275.204-2
**Type:** SEC rule · **Status:** in force as of the 1 Sep 2026 snapshot.
**Verbatim:**
> "(8) A list or other record of all accounts in which the investment adviser is vested with any discretionary power with respect to the funds, securities or transactions of any client.
> (9) **All powers of attorney and other evidences of the granting of any discretionary authority by any client to the investment adviser, or copies thereof.**"
**Verbatim (g)(2)(ii), (g)(3):**
> "(ii) Electronic storage media, including any digital storage medium or system that meets the terms of this section." … "In the case of records on electronic storage media, the investment adviser must establish and maintain procedures: … (iii) To reasonably ensure that any reproduction of a non-electronic original record on electronic storage media is complete, true, and legible when retrieved."

**Establishes:** The federal adviser-side authorization-record rule is **form-agnostic** — "powers of attorney **and other evidences of the granting** of any discretionary authority … or copies thereof" — and electronic storage media are expressly permitted.
**Supports.** **Relevance 4.**
**Application note:** "Other evidences of the granting" is the most permissive federal formulation located anywhere on this axis, and it is the closest federal counterpart to a journal-rendered authorization document. Contrast it directly with 17a-3(a)(17)(ii)'s "dated signature of each natural person," which is not form-agnostic.

---

**T3-18 · Advisers Act §206(3) — 15 U.S.C. §80b-6(3)** `[CARRIED FROM P6 entry A9]`
**URL:** https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-6.htm
**Type:** Federal statute · **Date:** Act of 22 Aug 1940, as amended by Dodd-Frank §985(e)(2) (2010) · **Status:** good law.
**Verbatim:**
> "(3) acting as principal for his own account, knowingly to sell any security to or purchase any security from a client, or acting as broker for a person other than such client, knowingly to effect any sale or purchase of any security for the account of such client, **without disclosing to such client in writing before the completion of such transaction the capacity in which he is acting and obtaining the consent of the client to such transaction.** The prohibitions of this paragraph shall not apply to any transaction with a customer of a broker or dealer if such broker or dealer is not acting as an investment adviser in relation to such transaction;"

**Establishes:** The transaction-by-transaction mechanic is textual: disclosure *in writing*, *before the completion of such transaction*, consent *to such transaction* — singular, per transaction.
**Undercuts any equivalence between a standing authorization and per-transaction consent in the §206(3) setting; is neutral-to-supportive of a per-order design.** **Relevance 4.**
**Application note:** §206(3) is a conflicted-capacity rule triggered by the actor's own adverse interest, which this topology does not create. Its relevance to Track 3 is structural: it is the only statutory authorization mechanic in the Advisers Act and it is per-order and in-writing-before-completion — which is what the mechanism does.

---

### E. Washington — the form question

---

**T3-19 · WAC 460-24A-220(5) — unethical business practices, investment advisers** `[SUPERSEDES P6 S9 entry B12 — same text, now the operative Track 3 entry with full opening and closing]`
**URL:** https://app.leg.wa.gov/WAC/default.aspx?cite=460-24A&full=true
**Type:** State administrative rule · **Date:** WSR 19-03-133, filed 18 Jan 2019, eff. 18 Feb 2019 (rule origin WSR 85-23-063, Order SDO-220-85, filed 19 Nov 1985) · **Status:** current, re-verified today.

**Verbatim opening (chapeau):**
> "If you are an investment adviser, investment adviser representative, or a federal covered adviser, **you are a fiduciary and have a duty to act primarily for the benefit of your clients.** If you are a federal covered adviser, the provisions of this subsection apply to the extent that the conduct alleged is fraudulent, deceptive, or as otherwise permitted by the National Securities Markets Improvement Act of 1996 … in accordance with RCW 21.20.020 (1)(c) and 21.20.110 (1)(g) you must not engage in dishonest or unethical business practices including, but not limited to, the following:"

**Verbatim (5) — THE PROVISION, complete:**
> "**(5) Placing an order to purchase or sell a security for the account of a client upon instruction of a third party without first having obtained a written third-party trading authorization from the client.**"

**Verbatim (2), (4), (21), (26) — the surrounding limbs:**
> "(2) Exercising any discretion in placing an order for the purchase or sale of securities for a client without obtaining written discretionary authority from the client within ten business days after the date of the first transaction placed pursuant to oral discretionary authority, **unless the discretion relates solely to the price at which, or the time when, an order involving a definite amount of a specified security must be executed, or both.**"
> "(4) Placing an order to purchase or sell a security for the account of a client without authority to do so."
> "(21) Engaging in conduct or any act, **indirectly or through or by any other person**, which would be unlawful for such person to do directly under the provisions of the Securities Act of Washington, chapter 21.20 RCW, or any rule or regulation thereunder."
> "(26) Accessing a client's account by using the client's own unique identifying information (such as username and password)."

**Verbatim closing:**
> "The conduct set forth above is **not inclusive**. Engaging in other conduct such as nondisclosure, incomplete disclosure, or deceptive practices will be deemed an unethical business practice."

**Establishes:** The rule's four operative facts for Track 3: the authorization must be (i) **written**, (ii) **obtained first** — before the order is placed, (iii) **from the client**, and (iv) it is triggered by placing an order **"upon instruction of a third party."** The rule contains **no definition of "written," no form specification, no signature requirement, no delivery requirement and no naming requirement.** Contrast FINRA 3260(b)'s "to a stated individual or individuals" — WAC 460-24A-220(5) has no such words.
**Undercuts if the member's act is characterised as accepting an engine's instruction; the four requirements are satisfiable on the frozen configuration's own terms if it is not.** **Relevance 5.**
**Application note:** (2)'s ten-business-day grace and time-and-price carve-out govern *the adviser's own* discretion; (5) governs *a third party's instruction*. Subsection (26) is the mirror image of, and support for, credential isolation. The chapeau limits the rule's addressees to advisers/IARs/FCAs, but RCW 21.20.020(1) is status-blind and pulls the whole of -220 into preserved space by rule (see P6 S9 B13).

---

**T3-20 · WAC 460-20C-210(5), (6) and WAC 460-20C-220(10), (11) — the broker-dealer chapter has NO third-party-instruction limb** `[NEW]`
**URL:** https://app.leg.wa.gov/WAC/default.aspx?cite=460-20C&full=true
**Type:** State administrative rule · **Date:** WSR 24-19-055, filed 12 Sep 2024, eff. 13 Oct 2024 · **Status:** current.
**Verbatim §460-20C-210 (broker-dealers), (5) and (6):**
> "(5) Executing a transaction on behalf of a customer without authorization to do so;
> (6) Exercising any discretionary power in effecting a transaction for a customer's account without first obtaining **written discretionary authority** from the customer, unless the discretionary power relates solely to the time and/or price for the execution of orders;"
**Verbatim §460-20C-220 (salespersons), (10) and (11):** identical wording.

**Establishes:** A **verified negative** on scope. Washington's broker-dealer and salesperson unethical-practices rules contain a written-discretionary-authority requirement but **no counterpart to 460-24A-220(5)** — no third-party-instruction limb anywhere in chapter 460-20C WAC. The "written third-party trading authorization" obligation exists on the **investment-adviser side only**.
**Supports scoping; neutral otherwise.** **Relevance 4.**
**Application note:** If the exposure is characterised as broker-dealer rather than adviser, WAC 460-24A-220(5) is not the operative rule at all; §460-20C-210(6) is, and its trigger is the *actor's own* exercise of discretion.

---

**T3-21 · Washington DFI Securities Act Policy Statement PS-23, *Custody: Standing Letters of Authorization*** `[NEW — SUPERSEDES P6 S9 negative finding 6]`
**URL:** https://dfi.wa.gov/industry/securities-act-interpretive-statements/securities-act-policy-statement-23 (index: https://dfi.wa.gov/industry/securities-act-interpretive-policy-statements)
**Type:** State securities administrator policy statement · **Date:** Adopted 29 September 2017, William Beatty, Securities Administrator; prepared by the Licensing and Examinations Unit · **Status:** published and current on the Division's index as of today.

**Verbatim (the conditions — the only DFI statement located on the FORM of a written client authorization of any kind):**
> "However, if the investment adviser has custody solely because the investment adviser has a third-party SLOA transfer arrangement with a client, the Division will not require the investment adviser to comply with the requirement to file an audited balance sheet … if the investment adviser complies with … the following conditions:
> **The client provides an instruction to the qualified custodian, in writing, that includes the client's signature, the third party's name, and either the third party's address or the third party's account number at a custodian to which the transfer should be directed.**
> **The client authorizes the investment adviser, in writing, either on the qualified custodian's form or separately, to direct transfers to the third party** either on a specified schedule or from time to time.
> **The client's qualified custodian performs appropriate verification of the instruction, such as a signature review or other method to verify the client's authorization**, and provides a transfer of funds notice to the client promptly after each transfer.
> The client has the ability to terminate or change the instruction to the client's qualified custodian.
> The investment adviser has no authority or ability to designate or change the identity of the third party, the address, or any other information about the third party contained in the client's instruction.
> The investment adviser maintains records showing that the third party is not a related party of the investment adviser or located at the same address as the investment adviser.
> **The client's qualified custodian sends the client, in writing, an initial notice confirming the instruction and an annual notice reconfirming the instruction.**"

**Establishes:** **P6's negative finding that "the Washington Securities Division publishes no interpretive statements for the Securities Act" is wrong and is corrected here.** The Division publishes 11 Securities Act Policy Statements (PS-01, -03, -05, -06, -08, -10, -16, -20, -22, -23; PS-04 and PS-21 repealed) and 16 Interpretive Statements (IS-01 through IS-23, with gaps). PS-23 is the only one addressing the form of a written client authorization. It says nothing about electronic versus paper — the words "electronic," "electronically" and "e-sign" appear nowhere in it. What it does require, in the custody context, is: the client's **signature**; a **third party's** verification of the instruction ("appropriate verification … such as a signature review"); the adviser's **inability to alter** the identified third party; and an **annual reconfirmation notice** from a party other than the adviser.
**Mixed — instructive on form, materially adverse on verification and reconfirmation.** **Relevance 4.**
**Application note:** PS-23 is about custody and asset transfer, not trading authorization, and it is a condition of a filing waiver, not a construction of "written." But it is the closest indication located of what this Division thinks a written client authorization looks like, and three of its features have no counterpart in the frozen configuration: a signature review by an independent party, the annual reconfirmation notice from that independent party, and the requirement that the authorized recipient be identified by the client and immutable by the adviser. The last of these the configuration does satisfy (the engine cannot alter the order after approval); the first two it does not.

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**T3-22 · Washington DFI Securities Act Policy Statement PS-20, *Internet Advertising By Broker-Dealers, Investment Advisers, And Their Representatives*** `[NEW — SUPERSEDES P6 S9 negative finding 3]`
**URL:** https://dfi.wa.gov/industry/securities-act-interpretive-statements/securities-act-policy-statement-20
**Type:** State securities administrator policy statement · **Date:** Adopted 8 September 1997, Deborah R. Bortner, Securities Administrator; prepared by William M. Beatty · **Status:** published and current on the Division's index today.
**Verbatim (conclusion, in part):**
> "Broker-dealers, investment advisers, and their representatives who use the Internet to distribute information on available products and services through communications directed generally to anyone having access to the Internet **shall not be deemed to be 'transacting business' in this state** for purposes of RCW 21.20.040, based solely on that fact, if the following conditions are observed: A. The Internet Communication contains a legend which clearly states that: (1) the broker-dealer, investment adviser, salesperson or representative in question may not transact business in Washington unless appropriately registered, or excluded or exempted …; and (2) follow-up, individualized responses to persons in this state … will not be made absent compliance with the appropriate registration requirements …; B. The Internet Communication contains a mechanism including, without limitation, technical 'firewalls' or other implemented policies and procedures … C. The Internet Communication does not involve either effecting or attempting to effect transactions in securities, or the rendering of personalized investment advice for compensation in this state, but is limited to the dissemination of general information on products and services …"

**Establishes:** **P6 S9's negative finding 3 ("Washington has no internet safe-harbour rule … Washington has none, anywhere in Title 460 WAC") is wrong.** Washington has an internet safe harbour — it is not in the WAC, it is a published Division policy statement. Reported here because it was found while verifying the DFI interpretive-statement position and it directly contradicts a standing P6 finding. It belongs to Track 5 / the Washington sub-register rather than to Track 3.
**Not a Track 3 authority.** **Relevance 2** for Track 3; **5** as a correction to P6.

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**T3-23 · *In re Solium Financial Services LLC*, Order No. S-20-2839-20-CO01 (Wash. Sec. Div., 23 Jan 2020)** `[CARRIED FROM P6 S9 entry E3 — existence and summary re-verified today; PDF text as recorded in P6]`
**URL:** https://dfi.wa.gov/sites/default/files/documents/securities-orders/S-20-2839-20-CO01.pdf · summary: https://dfi.wa.gov/2020-division-securities-enforcement-actions
**Type:** State securities administrator consent order · **Date:** 23 January 2020 · **Status:** final; no follow-on order.
**Verbatim (Findings of Fact ¶¶ 2–3, at 2) ◇ carried from P6:**
> "**Solium provides equity plan administration software to employers.** Employee-participants of employer-sponsored equity plans that utilize Solium's software can view and track the options and shares issued to them by their employers."
> "**If an employee-participant residing in Washington requests an exercise or liquidation through Solium's software, SFS transmits an order in the relevant account at a clearing broker-dealer registered in Washington and then routes the proceeds to the employee-participant's account. SFS receives a share of the commissions earned on these transactions.**"
**Verbatim (Division summary, re-fetched today):**
> "In connection with an investigation conducted by a multi-state taskforce of members of the North American Securities Administrators Association, the Securities Division alleged that from at least January 2009 to June 17, 2019, SFS acted as an unregistered broker-dealer in violation of RCW 21.20.040(1) **when it transmitted orders for employee-participants residing in Washington as part of its equity plan administration software service for employers.**"

**Establishes:** A software service that transmitted orders only on the customer's own request, through a registered clearing broker-dealer, was an unregistered Washington broker-dealer.
**Undercuts.** **Relevance 5** (Part 4 of the commission).
**Application note:** Distinguishable on transaction-based compensation ("a share of the commissions") and on who transmits (SFS itself, versus the member's own local software under the member's own credentials). Not distinguishable on the pass-through / no-advice framing — that was SFS's own position and it did not save it.

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### F. Embedded and hosted consent surfaces — the novel limb

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**T3-24 · Regulation E, 12 C.F.R. §1005.10(b) and Official Interpretations, Supplement I to Part 1005, comments 10(b)-2, -3, -5, -6** `[NEW — the strongest authority found on the novel limb]`
**URL (eCFR versioner API, 1 Sep 2026 snapshot):** https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-12.xml?part=1005&section=1005.10 · Supplement I: …?part=1005&appendix=Supplement%20I%20to%20Part%201005
**Type:** CFPB regulation and official interpretation (good-faith-reliance safe harbour under 15 U.S.C. §1693m(d)) · **Date:** 76 FR 81023 (27 Dec 2011), as amended at 81 FR 84326 (22 Nov 2016) and 89 FR 106836 (30 Dec 2024) · **Status:** in force as of the 1 Sep 2026 snapshot.

**Verbatim §1005.10(b), complete:**
> "**Written authorization for preauthorized transfers from consumer's account.** Preauthorized electronic fund transfers from a consumer's account may be authorized only by a **writing signed or similarly authenticated by the consumer. The person that obtains the authorization shall provide a copy to the consumer.**"

**Verbatim comment 10(b)-2, complete:**
> "**Authorization obtained by third party.** The account-holding financial institution does not violate the regulation when a third-party payee fails to obtain the authorization in writing or fails to give a copy to the consumer; rather, **it is the third-party payee that is in violation of the regulation.**"

**Verbatim comment 10(b)-3, complete:**
> "**Written authorization for preauthorized transfers.** The requirement that preauthorized EFTs be authorized by the consumer 'only by a writing' cannot be met by a payee's signing a written authorization on the consumer's behalf with only an oral authorization from the consumer."

**Verbatim comment 10(b)-5, complete:**
> "**Similarly authenticated.** The similarly authenticated standard permits signed, written authorizations to be provided electronically. The writing and signature requirements of this section are satisfied by complying with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 *et seq.*, which defines electronic records and electronic signatures. Examples of electronic signatures include, but are not limited to, digital signatures and security codes. **A security code need not originate with the account-holding institution.** The authorization process should evidence the consumer's identity and assent to the authorization. **The person that obtains the authorization must provide a copy of the terms of the authorization to the consumer** either electronically or in paper form. **Only the consumer may authorize the transfer and not, for example, a third-party merchant on behalf of the consumer.**"

**Verbatim comment 10(b)-6, complete:**
> "**Requirements of an authorization.** An authorization is valid if it is readily identifiable as such and **the terms of the preauthorized transfer are clear and readily understandable.**"

**Establishes:** This is the only federal regulatory text located that squarely addresses a written authorization to move value out of an account where the surface taking the act belongs to someone other than the institution that holds the account. It establishes four things: (i) a **third party other than the account holder's institution may obtain the authorization**, and the obligation to obtain it in writing and to deliver a copy runs to **that third party**; (ii) failure by the obtainer is **the obtainer's violation, not the account institution's** (comment 10(b)-2); (iii) the writing and signature are satisfied by ESIGN compliance, and **"a security code need not originate with the account-holding institution"** (comment 10(b)-5) — the security procedure may be the third party's own; (iv) validity turns on the record being readily identifiable as an authorization and the **terms being clear and readily understandable** (comment 10(b)-6), and on the act being **the consumer's own and not a third party's on the consumer's behalf** (comments 10(b)-3, 10(b)-5).
**Strongly supports — on every limb of the design except one.** **Relevance 5.**
**Application note:** Comment 10(b)-2 allocates responsibility to the **obtainer**; SEC Rel. 33-7856 n.25 allocates it to the party that **acts on** the consent. On the frozen configuration those are the same layer — the runtime obtains and the runtime acts — which is the configuration's best answer to both. But the two regimes state opposite default rules, and there is **no authority reconciling them**. "A security code need not originate with the account-holding institution" is the closest primary text found to "the runtime, not the engine and not the broker, may own the security procedure."

---

**T3-25 · CFPB Personal Financial Data Rights rule, 12 C.F.R. §§1033.401, 1033.411, 1033.331(b), 1033.311(e)(1), 1033.421(b)** `[NEW]`
**URL (eCFR versioner API, 1 Sep 2026 snapshot):** https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-12.xml?part=1033
**Type:** CFPB regulation implementing CFPA §1033, 12 U.S.C. §5533 · **Date:** 89 FR 90989 (18 Nov 2024); first compliance date 1 April 2026 (§1033.121(b)(1)) · **Status:** **in force and unamended in the CFR as of the 1 Sep 2026 snapshot, but under active reconsideration** — a proposed rule, "Personal Financial Data Rights Reconsideration," was published 22 August 2025 (document 2025-16139); Federal Register API query for all documents affecting 12 CFR 1033 returns four documents and no final reconsideration rule as of today.

**Verbatim §1033.401, complete:**
> "To become an authorized third party, the third party must seek access to covered data from a data provider on behalf of a consumer to provide a product or service the consumer requested and: (a) Provide the consumer with an authorization disclosure as described in § 1033.411; (b) Provide a statement to the consumer in the authorization disclosure … certifying that the third party agrees to the obligations described in § 1033.421; and **(c) Obtain the consumer's express informed consent to access covered data on behalf of the consumer by obtaining an authorization disclosure that is signed by the consumer electronically or in writing.**"

**Verbatim §1033.411(a)–(b), in part:**
> "(a) *In general.* To comply with § 1033.401(a), a third party must provide the consumer with an authorization disclosure electronically or in writing. The authorization disclosure must be **clear, conspicuous, and segregated from other material.** …
> (b) *Content.* The authorization disclosure must include: (1) The name of the third party that will be authorized to access covered data …; (2) The name of the data provider that controls or possesses the covered data …; (3) A brief description of the product or service the consumer has requested …; (4) The categories of data that will be accessed …; (5) The certification statement …; (6) A brief description of the expected duration of data collection …; (7) A description of the revocation method …"

**Verbatim §1033.331(b)(1)–(2), in part:**
> "(1) To comply with the requirements in § 1033.201(a)(1), upon request from an authorized third party, a data provider must make available covered data when it receives information sufficient to: (i) Authenticate the consumer's identity; (ii) Authenticate the third party's identity; **(iii) Document the third party has followed the authorization procedures in § 1033.401**; and (iv) Identify the scope of the data requested.
> (2) The data provider **is permitted to confirm the scope of a third party's authorization** to access the consumer's data by asking the consumer to confirm: (i) The account(s) to which the third party is seeking access; and (ii) The categories of covered data the third party is requesting to access …"

**Verbatim §1033.311(e)(1), in part:**
> "*Access credentials.* **A data provider must not allow a third party to access the data provider's developer interface by using any credentials that a consumer uses to access the consumer interface.**"

**Verbatim §1033.421(b)(2)–(3):**
> "(2) *Maximum duration.* … the third party will limit the duration of collection of covered data to a **maximum period of one year after the consumer's most recent authorization.** (3) *Reauthorization after maximum duration.* To collect covered data beyond the one-year maximum period …, the third party will obtain a new authorization from the consumer pursuant to § 1033.401 no later than the anniversary of the most recent authorization …"

**Establishes:** The most fully articulated federal regulatory model located of **a third party obtaining a consumer's authorization, in the third party's own surface, to reach into an account held by someone else.** Five features: (i) the **third party**, not the account-holding institution, obtains the consent; (ii) it must be "express informed consent," obtained "by obtaining an authorization disclosure that is signed by the consumer electronically or in writing"; (iii) the disclosure must be "clear, conspicuous, and **segregated from other material**" and must name both parties, the categories, the duration and the revocation method; (iv) the party that **acts** on the authorization — the data provider — must "**document** the third party has followed the authorization procedures," and may confirm scope with the consumer but must not obstruct; (v) an authorization expires at **one year** absent reauthorization, and the account institution's own credentials may not be shared with the third party.
**Strongly supports the topology; supplies a concrete content template; carries two adverse features.** **Relevance 4** (analogical transfer from consumer data access to securities trade authorization is untested).
**Application note:** §1033.411(b) is the closest thing found anywhere in federal law to a checklist for the journal's rendered authorization document, and it lines up almost exactly with the fields the configuration already mints — with three additions: the **data provider's own name** must appear alongside the third party's, the disclosure must be **segregated from other material** (which in an embedded panel means visually and functionally distinct from the host engine's chrome), and a **revocation method** must be described. The two adverse features are the one-year expiry and the acting party's duty to *document* the obtainer's procedure — the reverse direction of reliance from Rel. 33-7856 n.25. Status caveat: this rule is under reconsideration and the analogy should not be leaned on without a fresh status check.

---

**T3-26 · FTC Telemarketing Sales Rule, 16 C.F.R. §310.3(a)(3) and n.5** `[NEW]`
**URL (eCFR versioner API, 1 Sep 2026 snapshot):** https://www.ecfr.gov/api/versioner/v1/full/2026-09-01/title-16.xml?part=310&section=310.3
**Type:** FTC rule · **Status:** in force as of the 1 Sep 2026 snapshot.
**Verbatim (a)(3), in part:**
> "Causing billing information to be submitted for payment … **without the customer's or donor's express verifiable authorization** … Such authorization shall be deemed verifiable if any of the following means is employed: (i) **Express written authorization by the customer or donor, which includes the customer's or donor's signature;**⁵ (ii) Express oral authorization which is audio-recorded … and which evidences clearly both the customer's or donor's authorization of payment … and the customer's or donor's receipt of all of the following information: (A) An accurate description, clearly and conspicuously stated, of the goods or services …; (B) The number of debits, charges, or payments (if more than one); (C) The date(s) …; (D) The amount(s) …; (E) The customer's or donor's name; (F) The customer's or donor's billing information, identified with sufficient specificity such that the customer or donor understands what account will be used …"
**Verbatim n.5:**
> "For purposes of this part, the term '**signature**' shall include an **electronic or digital form of signature**, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law."

**Establishes:** A second federal formulation of the same idea: a "signature" requirement in a federal transaction-authorization rule is satisfied by an electronic form, by reference back to general federal and state law; and where the regulator specifies what an authorization must *evidence*, it specifies the transaction terms themselves (description, number, dates, amounts, the account to be used, the person's name).
**Supports.** **Relevance 3.**
**Application note:** The (a)(3)(ii) enumeration is the closest federal analogue to "the panel displays the complete order the runtime composed" — a regulator specifying that the authorization must evidence the person's receipt of the exact terms.

---

**T3-27 · *Vinogradova v. SunTrust Bank, Inc.*, 162 Md. App. 495, 875 A.2d 222 (Md. Ct. Spec. App. 3 June 2005) — industry-practice evidence only** `[NEW]`
**URL:** https://static.case.law/md-app/162/cases/0495-01.json
**Type:** State intermediate appellate opinion reproducing a broker-dealer's internal compliance guide · **Date:** 3 June 2005 · **Status:** good law, but the passage is **evidence in the record, not a holding**.
**Verbatim (quoting SunTrust's "Registered Representative Compliance Guide," reproduced in the opinion):**
> "Investment consultants must not … [a]ccept an order for a securities transaction from anyone other than the entitled customer(s) on an account. **A signed third party trading authorization naming a specific individual is required in order to do this** or the account must have been previously established via a Power of Attorney."

**Establishes:** Evidence of industry practice: firms treat a third-party trading authorization as a **signed** document **naming a specific individual** — the same shape as FINRA 3260(b)'s "stated individual or individuals."
**Undercuts (mildly).** **Relevance 2.**
**Application note:** This is a firm's internal policy quoted in an opinion, not a rule of law. It is included because it is one of only three reported American decisions in which the phrase "third-party trading authorization" appears at all (the others being *Girard v. Drexel Burnham Lambert, Inc.*, 805 F.2d 607 (5th Cir. 1986), where the document is an arbitration-clause carrier and its form is not discussed, and *Shapiro v. Darmstadter*, 43 So. 3d 326 (La. Ct. App. 2010), where its execution is a background fact). **No reported decision anywhere construes the required form of such a document.**

---

## S3 adverse register

| # | Authority | Threat | Does the frozen configuration distinguish? |
|---|---|---|---|
| **Y1** | **FINRA Rule 3260(b)** — "prior written authorization **to a stated individual or individuals**"; and **17 C.F.R. §240.17a-3(a)(17)(ii)** — "the dated signature of **each natural person** to whom discretionary authority was granted"; corroborated by *Vinogradova*'s reproduction of industry practice ("naming a specific individual") | **4** | **Does not distinguish.** Both provisions presuppose that the grantee of a trading authority is an identified human being. A grant whose grantee is a locally-running program has no counterpart anywhere in the recordkeeping framework. The runtime-rendered document can name the member, the account, the source and the scope; it cannot name a natural-person grantee without either naming the member himself (in which case it is not a third-party authorization at all) or naming a person at the source (in which case the engine's builder becomes the grantee). This is an **absence, not a prohibition** — but it means there is no template to point at, and the framework's silence is not neutral: it is the silence of a regime that never contemplated the grantee being software. |
| **Y2** | ***Garcia v. Stoneledge Furniture LLC*** (Cal. Ct. App. 2024), slip op. 14–15: the proponent failed because the record "lacked a date, time, or IP address" and "contained no indication it was created within the [claimed] system," and the evidence "did not show that **only** [the signatory] could have placed the electronic signature"; with *Ruiz* and *Bannister* ◇ treating a bare denial as creating a fact issue | **4** | **Distinguishes only if the mint actually carries provenance intrinsically and exclusivity is provable.** The design's claim — cryptographic binding to exact terms, member, account, source, timestamp and nonce, immutable after mint, enforced in storage — is precisely the evidence *Garcia* found absent. But *Garcia* is a burden-of-proof case decided against the proponent on a cold record, and California's rule (unlike *Aerotek*'s) lets a signatory's denial defeat the procedure evidence. The configuration does not distinguish the **burden**; it distinguishes the **evidence**. Whether that is enough is jurisdiction-dependent and untested. |
| **Y3** | **Washington DFI PS-23** (29 Sep 2017): a written client authorization in this Division's view requires "the client's signature"; "the client's **qualified custodian** performs appropriate verification of the instruction, such as a **signature review** or other method to verify the client's authorization"; and "the client's qualified custodian sends the client … an initial notice confirming the instruction and an **annual notice reconfirming** the instruction" | **4** | **Partially distinguishes.** PS-23 is a custody/asset-transfer policy and a condition of a filing waiver, not a construction of WAC 460-24A-220(5) or of "written." But it is the only published statement located of what this regulator thinks a written client authorization looks like, and two of its features have no counterpart in the frozen configuration: **verification of the client's authorization by an independent party** (there, the qualified custodian) and a **periodic reconfirmation notice from that independent party**. The configuration's answer — that the runtime's cryptographic binding is a stronger verification than a signature review — is an argument, not an authority. The one condition the configuration meets squarely is the last: the adviser "has no authority or ability to designate or change" the authorized recipient, which is the direct analogue of "the engine cannot alter the order after approval." |
| **Y4** | **SEC Rel. 33-7856, n.25**: the relying party "**retains the ultimate responsibility for assuring that the consent is authentic**" — read against **Reg E comment 10(b)-2**, which allocates the violation to "**the third-party payee**" who failed to obtain it properly, not to the account-holding institution | **3** | **Distinguishes on the facts but not on the law.** In this topology the obtainer and the actor are the same layer — the runtime — so both allocation rules point to the same party. That is the configuration's strength and its exposure in one: **whoever publishes the runtime carries the authenticity burden under either rule**, and the engine's ownership of the surrounding UI relieves nobody. If the binding fails, no allocation rule shifts the consequence to the engine. There is **no authority reconciling the two opposite default rules**, and none locating either in a securities-trading context. |
| **Y5** | **RCW 1.80.040(2)** — "This chapter applies **only to transactions between parties each of which has agreed to conduct transactions by electronic means**"; and **RCW 1.80.020(4)** — "A transaction subject to this chapter is also subject to other applicable substantive law"; and **RCW 1.80.070(1), (3)** — the record must be "capable of retention by the recipient at the time of receipt," failing which "the electronic record is not enforceable against the recipient" | **3** | **Distinguishes on design, but the burden is on the proponent.** RCW 1.80.060(3) does the heavy lifting on "written," but it does not float free: the chapter reaches the transaction only if **both parties agreed to transact electronically** (an onboarding artifact, not a runtime one) and the record must be **retainable at the time of receipt**. The journal's exportable rendering answers the second. The first is a gap unless onboarding records the agreement expressly. Note the third clause cuts *for* the member and against the party seeking to enforce. |
| **Y6** | **SEC Rel. IA-5248, n.68** (p. 26): "We do not interpret an adviser's fiduciary duty to require that full and fair disclosure or informed consent be achieved in a written advisory contract **or otherwise in writing**" | **2** | **Distinguishes, but it removes a supporting argument rather than adding an adverse one.** n.68 confirms that no federal fiduciary writing requirement stands behind the informed-consent concept, and that the Commission accepts consent given *implicitly by continuing the relationship*. That weakens any claim that the explicit per-order tap is doing distinctive legal work **under IA-5248**. Every writing requirement that actually binds here comes from elsewhere: FINRA 3260(b), 17 C.F.R. §240.17a-3(a)(17)(ii), §275.204-2(a)(9), WAC 460-24A-220(5). |
| **Y7** | **WAC 460-24A-220 closing sentence**: "The conduct set forth above is **not inclusive**. Engaging in other conduct such as nondisclosure, incomplete disclosure, or deceptive practices will be deemed an unethical business practice"; with **(21)** reaching conduct "indirectly or through or by any other person" | **3** | **No distinction available.** An open-ended residual standard cannot be designed around. Satisfying (5) on its four express terms does not answer the closing sentence, and (21) reaches conduct performed through another person — which is a description of an embedded panel inside another party's interface, whichever way the ownership of the panel is characterised. |
| **Y8** | **12 C.F.R. §1033.421(b)(2)–(3)** — one-year maximum duration and mandatory reauthorization; **§1033.331(b)(1)(iii)** — the acting party must "**document** the third party has followed the authorization procedures" | **2** | **Distinguishes on the ladder as frozen** (per-order approval mints a fresh authorization each time, so no duration question arises) — but it is adverse to any later standing-execution rung, and §1033.331(b)(1)(iii) puts a documentation duty on the party that acts, which is the runtime. Analogical transfer from consumer data access to securities trading is **untested**. |

---

## Washington sub-register

### 1 · WAC 460-24A-220(5) — the form question

**The rule, verbatim and complete:**
> "(5) Placing an order to purchase or sell a security for the account of a client upon instruction of a third party without first having obtained a **written third-party trading authorization** from the client."

**What the rule does not say.** It does not define "written." It does not require a signature. It does not require the authorization to name an individual. It does not specify a medium, a form, a delivery method, a retention period, a duration or a revocation mechanic. It does not exclude electronic records. Chapter 460-24A WAC contains **no definition of "written," "writing," "signed" or "signature" anywhere** (checked against the full chapter text, all 41 sections). RCW 21.20 contains none either.

**The electronic-record chain, and it is complete:**
1. **RCW 1.80.060(3):** "If a law requires a record to be in writing, an electronic record satisfies the law." **RCW 1.80.060(4):** "If a law requires a signature, an electronic signature satisfies the law."
2. **RCW 1.80.020(2)** — the only exclusions are wills/codicils/testamentary trusts and Title 62A RCW (UCC) other than RCW 62A.1-306 and chapters 62A.2 and 62A.2A. **Securities are not excluded. RCW 21.20 is not excluded. Title 460 WAC is not excluded.**
3. **RCW 21.20 and chapter 460-24A WAC contain no opt-out, no carve-out and no contrary form requirement.** The one place the Securities Act does speak to electronic execution is RCW 21.20.353(1)(g) (intrastate crowdfunding), which requires that "the investor acknowledges **by manual or electronic signature**" a risk statement — showing the legislature knows how to specify the point when it wants to, and did not do so for authorizations.
4. **RCW 1.80.190** makes ch. 1.80 the ESIGN §7002(a)(1) superseding enactment, so the Washington chapter — not 15 U.S.C. §7001 — governs a Washington-law writing requirement.
5. **Washington's earlier electronic-signature statutes are repealed** — ch. 19.34 RCW (Washington Electronic Authentication Act) by 2019 c 132 §8; ch. 19.360 RCW by 2020 c 57 §90. Ch. 1.80 is the sole operative chapter, and it applies to records created on or after **11 June 2020** (RCW 1.80.030).

**Three conditions and one gap.** RCW 1.80.040(2) applies the chapter "only to transactions between parties each of which has agreed to conduct transactions by electronic means"; RCW 1.80.070(1) requires the record to be "capable of retention by the recipient at the time of receipt"; RCW 1.80.020(4) preserves all other substantive law. And the gap: RCW 1.80.060(3) says "**a law**," and ch. 1.80 nowhere defines "law." **No Washington decision was found construing whether an administrative rule is "a law" for RCW 1.80.060(3).**

**Judicial construction: none.** A full-text search of CourtListener returns **three opinions** citing WAC 460-24A-220 anywhere — *Brin v. Stutzman*, 89 Wn. App. 809, 951 P.2d 291 (1998), and *Ives v. Ramsden*, 142 Wn. App. 369, 174 P.3d 1231 (2008) (two records of the same case). Both cite the rule generically as the source of "dishonest or unethical practices"; **neither mentions subsection (5), a third-party trading authorization, or the form of any authorization.**

**Scope: adviser-side only.** WAC 460-20C-210 (broker-dealers) and WAC 460-20C-220 (salespersons), both as amended by WSR 24-19-055 eff. 13 Oct 2024, require "written discretionary authority from the customer" with a time/price carve-out, and require authority to execute — but contain **no third-party-instruction limb**. Chapter 460-20C WAC has no counterpart to 460-24A-220(5).

### 2 · Is there any DFI interpretation, order or guidance on the FORM such an authorization must take?

**On third-party trading authorizations specifically: no. Verified across two independent channels.**

- **Interpretive and policy statements.** **P6's finding that the Division publishes none is corrected.** The Division publishes a Securities Act interpretive index at https://dfi.wa.gov/industry/securities-act-interpretive-policy-statements listing **11 live Policy Statements** (PS-01, -03, -05, -06, -08, -10, -16, -20, -22, -23; PS-04 and PS-21 repealed) and **16 live Interpretive Statements** (IS-01, -03 through -07, -09 through -14, -16, -20, -22, -23; IS-21 repealed). Every one was fetched and machine-scanned today. **None addresses third-party trading authorizations, discretionary authority, or the form of a client authorization to trade.** The words "electronic" or "signature" appear in only four: IS-22 (quoting the statutory publisher exclusion), PS-16 and PS-20 (internet), and **PS-23**.
- **PS-23, *Custody: Standing Letters of Authorization* (29 Sep 2017)** is the **only DFI statement located on the form of any written client authorization**. It is a custody policy, not a trading policy, and it is a condition of a filing waiver, not a construction of "written." Its conditions are quoted in full at T3-21. It says **nothing about electronic versus paper**. What it requires is: the client's **signature**; verification of the client's authorization by an **independent party** (the qualified custodian, "such as a signature review or other method"); the adviser's **inability to change** the identified third party; and an **initial notice plus an annual notice reconfirming** the instruction, sent by that independent party.
- **Enforcement.** Every Division enforcement summary page for **2015 through 2026** was fetched and machine-searched (year pages 2015–2023 at `dfi.wa.gov/{YEAR}-division-securities-enforcement-actions`; 2024 at `dfi.wa.gov/section-main-pages/2024-division-securities-enforcement-actions`; 2025–2026 across all six pages of the table at `dfi.wa.gov/securities-enforcement-actions`). **Zero occurrences of "third-party trading authorization," "third party trading authorization," "trading authorization," or "220(5)."** Only five occurrences of "460-24A-220" at all, all in 2015, 2018 and 2022, and the only subsections ever named are (10), (20) and, per P6, (16) and (24).

### 3 · Any DFI position on software tools since *Solium* (23 Jan 2020)?

**No. Verified negative, 2020 through 2026.** Every Division action from 23 January 2020 to today was enumerated and scanned for software/platform/technology/algorithm/tool/signal language. Every hit was inspected. Results:

- **2020:** *Solium* itself (23 Jan 2020) — the last and only order-transmitting-software action.
- **2021:** *Jedisof Inc.* (1 July 2021) — a Marysville software company, charged as an offering matter, not a software-tool matter.
- **2022–2023:** crypto trading platforms (*Stocktradefxt*, *PrimeFX Pro*, *VBit*, *TradeStation Crypto*) — all charged as unregistered offerings/platforms, none as a customer-operated software tool.
- **2024:** *Robinhood Financial LLC* (30 Jan 2024, multistate) and *TD Ameritrade* — registered broker-dealer conduct, not software-tool status.
- **2025–2026:** the only candidates on their names were read in full. ***Trage Technologies, Ltd.***, S-25-3921-26-SC01 (27 Feb 2026 / final order 13 Apr 2026): a Marshall Islands entity selling "cryptocurrency arbitrage investments" whose software "Arbtech" was the *subject* of the offering — a securities-offering fraud, not a tool-status matter. ***E.L.M. Investments / 1erotrader 2.0 LLC***, S-22-3461-24-SC01 (24 July 2025): a $1.7m pooled day-trading offering — same. ***TD Ameritrade***, S-24-3766-25-CO01 (23 Sep 2025): excess commissions.
- **Result: exactly one Washington action against order-transmitting software in the entire 2015–2026 window, and it is *Solium*. Nothing since. The Division has taken no position, in any order or statement, on software tools since 23 January 2020.**

---

## Direct answers

### 1 · Does a runtime-rendered, member-confirmed, exportable document meet "written … from the client" in WAC 460-24A-220(5)?

**On the primary material located, the chain runs unbroken and there is no contrary authority — but three conditions and one unlitigated gap stand in it, and no Washington authority has ever tested any of them.**

The chain: WAC 460-24A-220(5) requires a "written third-party trading authorization" and defines nothing; neither chapter 460-24A WAC nor RCW 21.20 defines "written," "writing," "signed" or "signature"; **RCW 1.80.060(3)** provides that "**If a law requires a record to be in writing, an electronic record satisfies the law**" and **RCW 1.80.060(4)** does the same for signatures; **RCW 1.80.020(2)**'s only exclusions are wills and the UCC, and neither securities, nor RCW 21.20, nor Title 460 WAC is excluded; and **RCW 1.80.190** makes ch. 1.80 the enactment that, under **15 U.S.C. §7002(a)(1)**, supersedes §7001 for Washington law. **15 U.S.C. §7003** confirms independently that federal law excepts no securities record.

The conditions, all textual: (i) **RCW 1.80.040(2)** — the chapter reaches the transaction only if each party "has agreed to conduct transactions by electronic means," determined "from the context and surrounding circumstances, including the parties' conduct"; (ii) **RCW 1.80.070(1)** — the record must be "capable of retention by the recipient at the time of receipt," and by **RCW 1.80.070(3)** a record whose retention is inhibited "is not enforceable against the recipient"; (iii) **RCW 1.80.020(4)** — "A transaction subject to this chapter is also subject to other applicable substantive law." The exportable rendering answers (ii). (i) is an onboarding fact, not a runtime fact.

The gap: **RCW 1.80.060(3) says "a law," and ch. 1.80 does not define "law."** Whether a WAC provision is "a law" for that purpose is unaddressed in the chapter and **unconstrued by any Washington court**.

The remaining question is not *whether* the document is written but *whether it is "from the client."* That is **RCW 1.80.080(1)**'s question — "attributable to a person if it was the act of the person," provable "in any manner, including a showing of the efficacy of any security procedure," where **RCW 1.80.010(16)** names encryption in terms. *Aerotek* (Tex. 2021, identical text) holds that "a record that cannot be created or changed without unique, secret credentials can be attributed to the one person who holds those credentials," and that once the procedure is proved "mere denials do not suffice." *Garcia* (Cal. 2024, identical text) holds the opposite way on a record that lacked date, time, origin identifier and any intrinsic indication of the system that produced it, and the California line treats a denial as creating a fact issue. **The split is real and neither case is Washington.**

**Registered, not concluded:** the material **supports** the position that a runtime-rendered, member-confirmed, exportable, cryptographically bound document satisfies "written," and **supports** its attribution to the member; **nothing found undercuts** either; and **no Washington authority of any kind — statute, rule, case, order or interpretive statement — has addressed the question.**

### 2 · Whose surface takes the act, on the authorities found?

**Not one authority in a securities context answers this. The two federal regulatory regimes that do answer it, answer it in opposite directions, and both locate the act in the party that owns the *process*, not the party that owns the surrounding page.**

- **Reg E comment 10(b)-5** is the closest text: "**A security code need not originate with the account-holding institution.** The authorization process should evidence the consumer's identity and assent to the authorization. **The person that obtains the authorization must provide a copy of the terms of the authorization to the consumer** … **Only the consumer may authorize the transfer and not, for example, a third-party merchant on behalf of the consumer.**" The regulator's attention is on (a) whose *process* evidences identity and assent, (b) who must deliver the terms, and (c) whether the act was the person's own. It is indifferent to whose page the fields sit in.
- **Reg E comment 10(b)-2** allocates the violation to "**the third-party payee**" who obtained the authorization defectively — **not** to the institution that holds the account and executes the transfer.
- **SEC Rel. 33-7856 n.25** allocates it the other way: the party that **acts on** the consent "**retains the ultimate responsibility for assuring that the consent is authentic**." **SEC Rel. 33-7233 Ex. 6** establishes that reliance on another's consent is permitted in both directions.
- **12 C.F.R. §1033.401(c)** puts the obtaining duty on the **third party** whose product the consumer wanted, and **§1033.331(b)(1)(iii)** puts a **documentation** duty on the party that acts.
- **UETA §14(2)** (RCW 1.80.130(2), 6 Del. C. §12A-114(2)) locates the act in the individual "who performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction" — a test about the person's freedom and knowledge, silent as to whose interface.
- **UETA §9 / RCW 1.80.080(1)** locates attribution in the **security procedure**, and *Aerotek* spells out that the procedure's efficacy "provides the link between the electronic record stored on a computer or in a database and the person to whom the record is attributed."

**On this material the surface is not the operative variable. The operative variables are: whose security procedure produced and sealed the record; whether the terms were displayed to the person; whether the act was the person's own and freely refusable; and who can carry the burden of proving all three** (Restatement §8.06 cmt. b: "the agent bears the burden of establishing that the requirements stated in this section have been fulfilled"; *Garcia*: the proponent must show that **only** the signatory could have produced the record).

**But this is inference from adjacent regimes, not authority on the question.** See Negative Finding 3.

### 3 · Does the RAPID-owned panel close P6's track 3a gap, or not?

**It closes part of it and leaves two parts open. Registered as follows, with no conclusion drawn.**

**Closed.** P6's 3a gap was that the *entire* on-point body of law — Rel. 33-7233 Ex. 6 and Rel. 33-7856 n.25 — was about **document delivery**, so nothing addressed a consent obtained in one party's surface and relied on for a **transaction**. P7 changes that in one respect: **12 C.F.R. §1005.10(b) and Official Interpretation comments 10(b)-2, -3, -5 and -6 are about a transaction authorization, not a document** — an authorization to move value out of an account, obtained by a third party in the third party's own process, satisfied electronically, with the security code expressly permitted not to originate with the institution holding the account. That is a genuine new anchor and it did not exist in P6's register. **12 C.F.R. §1033.401** adds a second, with a content checklist (§1033.411(b)) that maps closely onto the journal's rendered document.

**Also closed:** the attribution limb. P6 had UETA §9 as text only. P7 adds **the leading judicial construction of that text** (*Aerotek*), whose enumerated qualifying procedures — unique identifier tied to user actions, a single secure system preventing unauthorized access to records, business rules forcing completion of all steps, timestamps — are the frozen configuration's own design, and whose holding is that a record that cannot be created or changed without unique credentials is attributable to the credential-holder. And it adds **Washington's own enactment**, ch. 1.80 RCW, which P6 did not have and which is the statute that actually governs the Washington form question.

**Open, first.** **Nothing in the frozen configuration answers Y1.** FINRA 3260(b) demands authorization "to a stated individual or individuals"; 17 C.F.R. §240.17a-3(a)(17)(ii) demands "the dated signature of each natural person to whom discretionary authority was granted." A RAPID-owned panel changes who holds the pen; it does not supply a natural-person grantee. The only federal formulation that is form-agnostic on this axis is **17 C.F.R. §275.204-2(a)(9)** ("**other evidences** of the granting of any discretionary authority"), and it is an adviser recordkeeping rule.

**Open, second.** **The surface question itself remains unanswered by any authority.** The panel's ownership is a fact the design can prove; it is not a fact any located authority makes legally operative. Every regime found asks about the *process*, the *terms displayed*, the *freedom to refuse* and the *burden of proof* — never about whose page. That is favourable to the design (it means the engine's framing is not disqualifying) and unhelpful to it (it means the panel's RAPID ownership earns no independent legal credit). And the two federal default rules on who bears the consequence of a defective consent — Reg E comment 10(b)-2 (the obtainer) and Rel. 33-7856 n.25 (the actor) — **point in opposite directions and have never been reconciled**. On this topology both point at the same layer, which is the configuration's answer, but it is an answer by coincidence of facts, not by authority.

---

## Negative findings — explicit

1. **ESIGN supplies no attribution rule.** §7001(h) conditions expressly on attribution "legally attributable to the person to be bound" under other law; §7001(b)(1) disclaims any effect on substantive rights and obligations save the writing/signing/nonelectronic-form requirement. The attribution work is done by UETA §9 as enacted, and by agency law. `[CARRIED FROM P6 negative finding 3, re-verified and extended]`

2. **ESIGN excepts no securities record.** 15 U.S.C. §7003(a) and (b) were read in full. There is no securities exception, no trading-authorization exception, no brokerage exception. `[NEW]`

3. **No authority — federal, state, regulatory or judicial — addresses whose surface takes the act when an authorization UI belonging to party A is embedded inside party B's page.** Searched: CourtListener full-text opinion search for `"iframe" "electronic signature"` (COUNT 0), `"authorization" "iframe"` (0), `"hosted payment page"` (0), `"hosted payment"` (1, a Delaware appraisal case), `"OAuth"` (0), `"authorization page" "third party"` (4, all unrelated), `"who obtained the consent"` (40, all Fourth Amendment consent-to-search), `"hosted" "authorization" "merchant"` (26, none on point), `"tokenized" "consent" "financial institution"` (0), `"embedded" "checkout" "arbitration" "third party"` (2, neither on point). **PCI-style hosted fields and hosted payment pages are an industry security standard with no primary-law footprint located at all.** The nearest primary material is regulatory and by analogy only: 12 C.F.R. §1005.10(b) with comments 10(b)-2 and 10(b)-5, and 12 C.F.R. Part 1033 subpart D. **This absence is the finding.** `[NEW]`

4. **The two federal allocations of responsibility for a defective consent are in unreconciled tension.** Reg E comment 10(b)-2 places the violation on the third party that **obtained** it; SEC Rel. 33-7856 n.25 places ultimate responsibility on the party that **acts on** it. No authority located addresses both, and neither is a securities-trading authority. `[NEW]`

5. **No SEC authority addresses consent obtained in a third party's interface for a *transaction authorization*.** Every on-point SEC authority (Rel. 33-7233 Ex. 6, Rel. 33-7856 n.25 and n.26) is about **document delivery** consent. The transfer from delivery-consent to trade-authorization remains analogical and untested. P7 narrows but does not close this: Reg E §1005.10(b) supplies a transaction-authorization analogue, but from a different regulator, a different statute and a different subject matter. `[CARRIED FROM P6 negative finding 6, narrowed]`

6. **Washington has no definition of "written," "writing," "signed" or "signature" in RCW 21.20 or in chapter 460-24A WAC.** Full text of both was fetched and searched. `[NEW]`

7. **No Washington court has ever construed WAC 460-24A-220(5).** Three opinions in all of CourtListener cite WAC 460-24A-220 (*Brin v. Stutzman* (1998); *Ives v. Ramsden* (2008), two records). Both cite it generically. Neither mentions subsection (5) or the form of any authorization. `[NEW]`

8. **No Washington DFI order, in 2015–2026, has ever cited WAC 460-24A-220(5) or used the phrase "third-party trading authorization."** All twelve year-pages plus all six pages of the 2025–2026 enforcement table were fetched and searched. `[NEW]`

9. **No DFI position on software tools since *Solium* (23 Jan 2020).** Full 2020–2026 enforcement sweep; every software/platform/technology hit inspected; all are offering-fraud or registered-broker-conduct matters. `[NEW — confirms and extends P6 S9 finding 7]`

10. **CORRECTION TO P6 — the Washington Securities Division DOES publish interpretive and policy statements.** P6 S9 negative finding 6 ("The Washington Securities Division publishes no interpretive statements for the Securities Act … DFI publishes interpretive statements for check cashers, consumer loan companies, escrow agents, credit unions and money transmitters — **none for securities**") is **wrong**. The index at `dfi.wa.gov/laws-enforcement/interpretations` lists "Securities" alongside those categories, linking to `dfi.wa.gov/industry/securities-act-interpretive-policy-statements`, which carries 11 live Policy Statements and 16 live Interpretive Statements. P6's URL probes (`/securities/interpretive-statements`, `/interpretive-statements`, `/policies-interpretive-statements`) all 404 because the live path is `/industry/securities-act-interpretive-policy-statements`. **This correction propagates: it means DFI's position on any RCW 21.20 question may be on the record, and the whole set should be checked against every track, not only this one.** `[SUPERSEDES P6 S9 negative finding 6]`

11. **CORRECTION TO P6 — Washington DOES have an internet safe harbour.** P6 S9 negative finding 3 ("Washington has no internet safe-harbour rule. Delaware has two (Rules 607, 707). Washington has none, anywhere in Title 460 WAC (23 chapters checked)") is wrong in substance. Washington's is **PS-20** (8 Sep 1997), a published Division policy statement rather than a WAC provision. P6's search was confined to Title 460 WAC and therefore could not find it. **Track 5 / the Washington sub-register should be re-run against the policy-statement set.** `[SUPERSEDES P6 S9 negative finding 3]`

12. **CORRECTION TO P6 — Washington DID enact UETA.** P6 S9 did not identify ch. 1.80 RCW. Washington enacted the Uniform Electronic Transactions Act by Laws 2020, ch. 57, effective for records created on or after 11 June 2020, repealing ch. 19.360 RCW; ch. 19.34 RCW had already been repealed by 2019 c 132 §8. This is the statute that governs the Washington form question. `[NEW — fills a P6 gap]`

13. **No reported American decision construes the required form of a third-party trading authorization.** The phrase appears in exactly three opinions: *Girard v. Drexel Burnham Lambert, Inc.*, 805 F.2d 607 (5th Cir. 1986) (arbitration clause carried in such a document; form not discussed); *Vinogradova v. SunTrust Bank, Inc.*, 162 Md. App. 495 (2005) (a firm's compliance guide reproduced as record evidence); *Shapiro v. Darmstadter*, 43 So. 3d 326 (La. Ct. App. 2010) (execution as background fact). `[NEW]`

14. **Restatement (Third) of Agency §8.06 could not be fetched as ALI primary text** (paywalled). The black letter and comment b are quoted here from a court that reproduced them verbatim. **◇ for source of text only.** `[CARRIED FROM P6 negative finding 10]`

15. **The Aerotek reporter pagination is unverified.** case.law coverage does not extend to 624 S.W.3d; the opinion is quoted from the court's own PDF by slip-opinion page. **◇ for reporter cite only; the text is primary.** `[NEW]`

16. **NASAA model-rule texts remain unobtainable.** nasaa.org returns HTTP 403 to automated requests. Whether WAC 460-24A-220(5) tracks a NASAA model, and in which version, still cannot be established from primary sources. `[CARRIED FROM P6 S9 finding 8]`

17. **WebSearch budget was exhausted (200/200) before this track began**, as it was in P6. Everything above was retrieved by direct fetch of known primary-source URLs plus the open CourtListener search API and the Federal Register API. **Two items that would normally warrant a general web search — any SEC or FINRA staff position on electronic execution of a trading authorization, and any FTC enforcement action turning on consent obtained through another party's hosted interface — could not be searched and are reported as not-found-because-not-searched, not as verified negatives.**

---

## Search log

| # | Source / URL | Method | Result | Date |
|---|---|---|---|---|
| 1 | govinfo.gov `USCODE-2023-title15-chap96-subchapI-sec7001.htm`, `-sec7002`, `-sec7003`, `-sec7004`, `-sec7006` | curl + declared UA with contact; size-checked | ESIGN §§7001(a)–(j), 7002, 7003, 7004, 7006(1)–(13) verbatim | 5 Sep 2026 |
| 2 | govinfo.gov `…chap2D-subchapII-sec80b-6.htm` | carried from P6 | Advisers Act §206(3) | 3 Sep 2026 ◇ |
| 3 | app.leg.wa.gov `RCW/default.aspx?cite=1.80&full=true` | plain GET, 160 kB | **ch. 1.80 RCW (Washington UETA) — all 20 sections; .010, .020, .030, .040, .060, .070, .080, .130, .190 verbatim** | 5 Sep 2026 |
| 4 | app.leg.wa.gov `RCW/default.aspx?cite=21.20&full=true` | plain GET, 162 kB text | RCW 21.20 full text; **zero** definitions of "writing"/"written"; RCW 21.20.353(1)(g) "manual or electronic signature" | 5 Sep 2026 |
| 5 | app.leg.wa.gov `RCW?cite=19.360`, `?cite=19.34` | plain GET | Both chapters **repealed** (2020 c 57 §90; 2019 c 132 §8) | 5 Sep 2026 |
| 6 | app.leg.wa.gov `WAC/default.aspx?cite=460-24A&full=true` | plain GET, 397 kB | **WAC 460-24A-220 chapeau, (1)–(26), closing sentence, rule history verbatim**; no definition of "written" anywhere in the chapter | 5 Sep 2026 |
| 7 | app.leg.wa.gov `WAC?cite=460-20C&full=true`, `?cite=460-22B&full=true` | plain GET | **WAC 460-20C-210(5),(6) and -220(10),(11) verbatim; no third-party-instruction limb in the BD chapter** | 5 Sep 2026 |
| 8 | delcode.delaware.gov `title6/c012A/index.html` | plain GET | 6 Del. C. §12A-109 (UETA §9), §12A-114 (UETA §14) verbatim | 5 Sep 2026 |
| 9 | dfi.wa.gov `/laws-and-enforcement` → `/laws-enforcement/interpretations` → **`/industry/securities-act-interpretive-policy-statements`** | link-walk from the department landing page (P6's three guessed URLs all 404) | **DFI DOES publish Securities Act statements: 11 Policy + 16 Interpretive. P6 negative finding 6 corrected.** | 5 Sep 2026 |
| 10 | dfi.wa.gov `/industry/securities-act-interpretive-statements/securities-act-policy-statement-23` | curl + HTML strip | **PS-23, *Custody: Standing Letters of Authorization* (29 Sep 2017) — full conditions verbatim** | 5 Sep 2026 |
| 11 | dfi.wa.gov — all 27 live IS/PS pages | bulk curl + machine scan for electronic / signature / written authoriz / third-party trading / software / discretion | Only 4 hits total; **none on trading authorizations. PS-20 (internet safe harbour) found — P6 negative finding 3 corrected** | 5 Sep 2026 |
| 12 | dfi.wa.gov `/{YEAR}-division-securities-enforcement-actions` for 2015–2023; `/section-main-pages/2024-…` for 2024 | bulk curl + HTML strip | 10 year-pages, ~1 MB text; **zero** hits for "third-party trading authorization"/"trading authorization"/"220(5)"; five bare cites of 460-24A-220 (subsections (10),(20) only) | 5 Sep 2026 |
| 13 | dfi.wa.gov `/securities-enforcement-actions?page=1..6` | curl + table extraction | **Complete 2025–2026 docket (≈120 orders).** Year-slug URLs for 2025/2026 404; the live table is the root page with `?page=N` | 5 Sep 2026 |
| 14 | dfi.wa.gov `/sites/default/files/documents/securities-orders/{S-25-3921-26-SC01, S-22-3461-24-SC01, S-24-3766-25-CO01}.pdf` | curl + `pdftotext -layout` | All three read in full; **none is a software-tool matter** (crypto-arbitrage offering; pooled day-trading offering; excess commissions) | 5 Sep 2026 |
| 15 | dfi.wa.gov `/2020-division-securities-enforcement-actions` | curl + targeted read | *Solium* S-20-2839-20-CO01 (23 Jan 2020) summary re-verified; no follow-on order | 5 Sep 2026 |
| 16 | ecfr.gov versioner API `2026-09-01/title-17.xml?part=240&section=240.17a-3` | curl `--compressed` | 17a-3(a)(6)(i)(A), (a)(17)(ii) verbatim | 5 Sep 2026 |
| 17 | ecfr.gov versioner API `…?part=275&section=275.204-2` | curl `--compressed` | **275.204-2(a)(7),(8),(9), (g)(2)(ii), (g)(3) verbatim** | 5 Sep 2026 |
| 18 | ecfr.gov versioner API `2026-09-01/title-12.xml?part=1005&section=1005.10` | curl `--compressed` | **12 C.F.R. §1005.10(b) verbatim** | 5 Sep 2026 |
| 19 | ecfr.gov versioner API `…?part=1005&appendix=Supplement I to Part 1005` | curl `--compressed`, 561 kB text | **Official Interpretations comments 10(b)-1 through 10(b)-7 verbatim — the key new authority on the novel limb** | 5 Sep 2026 |
| 20 | ecfr.gov versioner API `…?part=1033` | curl `--compressed` | **12 C.F.R. §§1033.201, .211, .301, .311(e), .321, .331(b), .401, .411, .421 verbatim** | 5 Sep 2026 |
| 21 | ecfr.gov versioner API `2026-09-01/title-16.xml?part=310&section=310.3` | curl `--compressed` | 16 C.F.R. §310.3(a)(3)(i)–(ii) and n.5 verbatim | 5 Sep 2026 |
| 22 | federalregister.gov API, `conditions[cfr][title]=12&[part]=1033` | curl + JSON | **Status-check on Part 1033: 4 documents; rule 89 FR 90989 (18 Nov 2024) stands; "Personal Financial Data Rights Reconsideration" proposed rule 22 Aug 2025; no final reconsideration rule** | 5 Sep 2026 |
| 23 | sec.gov `/files/rules/interp/34-42728.htm` | curl + declared UA (landing page at `/rules/interp/` carries metadata only) | Rel. 33-7856 nn. 23, 25, 26 verbatim | 5 Sep 2026 |
| 24 | sec.gov `/rules/interp/33-7233.txt` | curl `-L` (301 without it) | Rel. 33-7233 Example 6 (pp. 12–13) and n.29 (pp. 10–11) verbatim, with `BEGINNING OF PAGE` pin-cites | 5 Sep 2026 |
| 25 | sec.gov `/rules/interp/2019/ia-5248.pdf` | curl `-L` + `pdftotext -layout` | IA-5248 p. 8, p. 26 and **n.68** verbatim; header confirms Release IA-5248, File S7-07-18, effective 12 July 2019 | 5 Sep 2026 |
| 26 | finra.org `/rules-guidance/rulebooks/finra-rules/3260` | curl + HTML strip | Rule 3260(a)–(d) complete + amendment history + Selected Notices | 5 Sep 2026 |
| 27 | courtlistener.com `/api/rest/v4/search/` (type=o) | 14 queries, paced to the 5/min limit | `"efficacy of any security procedure"` → 25 (*Aerotek*, *Garcia*, *Bannister*, *Kmart*, *Occidental*); `"similarly authenticated"` → 29; `"third-party trading authorization"` → 3; `"460-24A-220"` → 3; `"WAC 460-24A"` → 3; `"iframe" "electronic signature"` → 0; `"hosted payment page"` → 0; `"hosted payment"` → 1; `"OAuth"` → 0; `"authorization" "iframe"` → 0; `"authorization page" "third party"` → 4; `"who obtained the consent"` → 40; `"hosted" "authorization" "merchant"` → 26; `"tokenized" "consent" "financial institution"` → 0 | 5 Sep 2026 |
| 28 | storage.courtlistener.com `/pdf/2021/05/28/aerotek…_1.pdf` and `…trojuan.pdf` | curl + `pdftotext -layout` | ***Aerotek, Inc. v. Boyd*, No. 20-0290 (Tex. 2021) — majority slip op. 9–10, 15, 18 and dissent slip op. 7–8 verbatim** | 5 Sep 2026 |
| 29 | storage.courtlistener.com `/pdf/2024/05/17/garcia_v._stoneledge_furniture_llc.pdf` | curl + `pdftotext -layout` | ***Garcia v. Stoneledge Furniture LLC*, No. A166785 (Cal. Ct. App. 2024) — slip op. 14–15 verbatim** | 5 Sep 2026 |
| 30 | storage.courtlistener.com `/pdf/2023/05/02/new_enterprise_associates_14_l.p._v._rich.pdf` | curl + `pdftotext -layout` | *NEA 14 v. Rich* slip op. 38–40 — Restatement §8.06 black letter and cmt. b re-verified verbatim | 5 Sep 2026 |
| 31 | static.case.law `/f2d/805/cases/0607-01.json`; `/md-app/162/cases/0495-01.json` | curl + JSON | *Girard v. Drexel Burnham* (form not discussed); *Vinogradova* compliance-guide passage verbatim | 5 Sep 2026 |
| 32 | static.case.law `/sw3d/624/cases/0199-01.json` | curl | **404 — coverage does not reach this volume; *Aerotek* reporter pin unverified ◇** | 5 Sep 2026 |

**Access notes for reproduction (adds to and corrects P6's).**
- sec.gov and govinfo require a declared `User-Agent` containing a contact address; **and `curl -L`** — `sec.gov/rules/interp/*.txt` and `/rules/interp/2019/*.pdf` return a bare 301 without it, which is easy to mistake for a block.
- eCFR web pages 302-redirect automated clients; the versioner API at `/api/versioner/v1/full/<date>/title-NN.xml?part=&section=` with `curl --compressed` returns clean XML. **Official Interpretations are reachable as `?part=1005&appendix=Supplement%20I%20to%20Part%201005`** — not as a section.
- federalregister.gov's open API (`/api/v1/documents.json?conditions[cfr][title]=&conditions[cfr][part]=`) is the cheapest way to status-check a CFR part with no key and no search budget.
- **DFI's interpretive statements live at `dfi.wa.gov/industry/securities-act-interpretive-policy-statements`**, reached from `/laws-and-enforcement` → `/laws-enforcement/interpretations`. Every intuitive path (`/interpretive-statements`, `/securities/interpretive-statements`, `/policies-and-interpretive-statements`) 404s. Individual statements are at `/industry/securities-act-interpretive-statements/securities-act-{policy,interpretive}-statement-NN`. DFI's site search returns 403.
- **DFI enforcement:** 2015–2023 at `dfi.wa.gov/{YEAR}-division-securities-enforcement-actions`; 2024 at `dfi.wa.gov/section-main-pages/2024-division-securities-enforcement-actions`; **2025–2026 only as an HTML table at `dfi.wa.gov/securities-enforcement-actions` paged by `?page=1..6`** — the year-slug URLs for 2025 and 2026 do not exist. Order PDFs are at `/sites/default/files/documents/securities-orders/{ORDER-NO}.pdf` (some 2024 orders at `/sites/default/files/securities-enforcement/`); the directory index is 403, individual files are public.
- CourtListener: `/api/rest/v4/search/` is open but **rate-limited to 5 requests/minute** (429 with a JSON body, not an HTTP error page — check the body). Opinion HTML pages return an empty 202 to automated clients; route around via `opinions[].local_path` → `https://storage.courtlistener.com/<local_path>`. Add `&highlight=on` to get snippets. Multi-phrase AND queries genuinely return 0 rather than failing — verify with a control query before recording a negative.
- static.case.law: `/<reporter>/<vol>/cases/<page>-<seq>.json` gives clean text; coverage does not reach 624 S.W.3d (2021).


---

<br>

# S4 · TRACK 4 — No-preset onboarding and the published book

I have all primary sources retrieved and verified. Writing the register.

---

# S4 — Track 4 authority register
## No-preset onboarding, the published book beside the field, and the directly-fetched external list

**Research date:** 5 September 2026. Federal plus two state decisions where the federal record is empty. Primary sources fetched and read in full unless marked ◇. No legal conclusions — supports/undercuts only.

**Headline, stated up front so it is not buried.** Three things:
1. **No authority was located, in either direction, holding that a value a person types into a field after reading a published example is or is not that person's own authorship for §202(a)(11) purposes.** The concept does not appear. P6 finding 1 stands and is not closed by removing presets.
2. **No authority was located in which a user-entered parameter derived from a published source was attributed back to the publisher.** The nearest cases run the *other* way: publishers of securities information are repeatedly held **not** responsible for what readers did with the published numbers (*First Equity*, *Winter*, *Gutter*, *Gale*).
3. **The adverse weight in Track 4 does not sit on the number. It sits on the surface the number is displayed on.** *Keimer* (same investment figure: fully protected inside the book, commercial speech on the cover) and the Commission's 2008 hyperlink guidance ("when a company embeds a hyperlink … within the document, the company should always be deemed to be adopting the hyperlinked information") are the two authorities that say location changes legal character. That is the exact question limb (b) asks.

---

# Part A — Statutory and definitional frame

### A1 · Advisers Act §202(a)(11), 15 U.S.C. §80b-2(a)(11) — `[CARRIED FROM P6, entry 1]`
· https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-2.htm
· Statute · 2023 ed., current · **Status:** good law
· **Verbatim:** *"'Investment adviser' means any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities; but does not include … (D) the publisher of any bona fide newspaper, news magazine or business or financial publication of general and regular circulation …"*
· **Establishes:** three elements plus eight exclusions. **The text contains no authorship element, no "who typed the number" element, and no recommendation trigger.**
· **Supports / undercuts:** neutral by omission — it gives the frozen configuration no textual hook for "the member typed it," and gives the adverse side no hook for "the book supplied it."
· **Relevance to Track 4: 5**
· **Application note:** no-preset onboarding is a fact about *who performed a keystroke*. The statute does not ask that question.

### A2 · §208(d), 15 U.S.C. §80b-8(d) — `[CARRIED FROM P6, entry 2]`
· Statute · good law · *"It shall be unlawful for any person indirectly, or through or by any other person, to do any act or thing which it would be unlawful for such person to do directly under the provisions of this subchapter or any rule or regulation thereunder."*
· **Undercuts** any argument that rests on topology — including "the member's runtime fetched it, not us." **Relevance: 4.** P6's negative finding stands: no judicial gloss exists (P6 S5 A15 — `"80b-8"` returns four opinions, none applying subsection (d)).

### A3 · Rule 203A-3(a)(3)(ii), 17 C.F.R. §275.203A-3(a)(3)(ii) — `[CARRIED FROM P6, entry 20]`
· Rule · current · *"'Impersonal investment advice' means investment advisory services provided by means of written material or oral statements that do not purport to meet the objectives or needs of specific individuals or accounts."*
· **Establishes:** the only operative federal regulatory definition of impersonal advice — and it turns on *purporting to meet specific needs*, not on authorship.
· **Supports** the frozen configuration on the personalization axis. **Relevance: 3.**

### A4 · Rule 203A-2(e), 17 C.F.R. §275.203A-2(e), as amended by Rel. IA-6531, 89 FR 24693 (Apr. 9, 2024) — `[CARRIED FROM P6, entry 19]`
· Rule · current · *"'digital investment advisory service' is investment advice to clients that is generated by the operational interactive website's software-based models, algorithms, or applications **based on personal information each client supplies** through the operational interactive website."*
· **Establishes:** the Commission's 2024-vintage vocabulary for algorithmic advice builds in a personal-information input requirement.
· **Caveat that must be stated:** this is a *registration-eligibility* rule, not a status test.
· **Supports.** **Relevance: 3.**

---

# Part B — The publisher exclusion and what it protects

### B1 · *Lowe v. SEC*, 472 U.S. 181 (1985) — `[CARRIED FROM P6, entry 4; pin-cites re-verified 5 Sep 2026]`
· https://static.case.law/us/472/html/0181-01.html
· Supreme Court · 10 June 1985 · **Status:** good law
· **Verbatim, at 206:** *"Presumably a 'bona fide' publication would be genuine in the sense that it would contain disinterested commentary and analysis as opposed to promotional material disseminated by a 'tout.' Moreover, publications with a 'general and regular' circulation would not include 'people who send out bulletins from time to time on the advisability of buying and selling stocks' … or 'hit and run tipsters.'"*
· **Verbatim, at 208:** *"The Act was designed to apply to those persons engaged in the investment-advisory profession — those who provide personalized advice attuned to a client's concerns, whether by written or verbal communication. The mere fact that a publication contains advice and comment about specific securities does not give it the personalized character that identifies a professional investment adviser. Thus, petitioners' publications do not fit within the central purpose of the Act because they do not offer individualized advice attuned to any specific portfolio or to any client's particular needs. On the contrary, they circulate for sale to the public at large in a free, open market — a public forum in which typically anyone may express his views."*
· **Verbatim, at 209:** *"they are published by those engaged solely in the publishing business and are not personal communications masquerading in the clothing of newspapers, news magazines, or financial publications … the publications have been 'regular' in the sense important to the securities market: there is no indication that they have been timed to specific market activity, or to events affecting or having the ability to affect the securities industry."*
· **Verbatim, at 210:** *"As long as the communications between petitioners and their subscribers remain entirely impersonal and do not develop into the kind of fiduciary, person-to-person relationships that were discussed at length in the legislative history of the Act and that are characteristic of investment adviser-client relationships, we believe the publications are, at least presumptively, within the exclusion and thus not subject to registration under the Act."*
· **Verbatim, at 210 n.57:** *"It is significant that the Commission has not established that petitioners have had authority over the funds of subscribers; that petitioners have been delegated decisionmaking authority to handle subscribers' portfolios or accounts; or that there have been individualized, investment-related interactions between petitioners and subscribers."*
· **Verbatim, at 211 n.59:** *"The Commission suggests that an investment adviser may regularly provide, in newsletter form, advice to several clients based on recent developments, without tailoring the advice to each client's individual needs, and that this is the practice of investment advising … the Commission does not suggest that this 'practice' is involved here; thus, we have no occasion to address this concern."*
· **What *Lowe* protects — answered directly.** It protects **the publisher's own status**. Every operative sentence is about the publisher: *petitioners'* publications, *petitioners'* circulation, *petitioners'* absence of funds authority. The three n.57 markers are markers of what the **publisher** does not have.
· **Does the protection travel to a reader who acts on the publication? Nothing in the opinion addresses the reader's position at all.** The word "subscriber" appears only as the recipient of the publisher's communications. *Lowe* neither confers anything on a reader nor imposes anything on one. **This is a negative finding, and it is symmetrical:** *Lowe* is not authority that reading a book and typing its number makes the reader an author, and it is not authority that the number carries the author's status with it.
· **Supports** the frozen configuration on n.57's credential/decision-authority boundary. **Undercuts** it on the timing axis at 209 — but that bears on Track 1, not Track 4.
· **Relevance: 5**
· **Application note:** *Lowe* answers a question the frozen configuration is not asking. It says whether the book's author needs to register. It says nothing about the member who copied a figure out of it.

### B2 · *SEC v. Terry's Tips, Inc.*, 409 F. Supp. 2d 526 (D. Vt. 2006) — `[CARRIED FROM P6, entry 6; verbatim re-verified]`
· https://static.case.law/f-supp-2d/409/html/0526-01.html
· Federal district court · 9 January 2006 · good law as a district decision
· **Verbatim, at 530 (facts — the menu):** *"Terry's Tips offers at least nine different auto-trading strategies to subscribers. A person who wishes to engage in auto-trading with Terry's Tips receives an email publication from Terry's Tips called 'Auto-Trade 101.' This e-mail recommends, but does not require, that the client open a brokerage account at one of two broker-dealers that have auto-trading arrangements with Terry's Tips."*
· **Verbatim, at 530 (the individualized guidance):** *"Allen or a member of Terry's Tips staff provides individual subscribers with specific advice on matters such as the degree of risk associated with each auto-trading strategy, which of the several strategies to select given the subscriber's investment objectives, and when to switch from one strategy to another."*
· **Verbatim, at 530 (the delegation):** *"These instructions are timed to take advantage of market events, and the customer usually learns of the trades only after they have been executed by the broker-dealer."*
· **Verbatim, at 532 (the exclusion would have held):** *"The Defendants' financial newsletter circulates for sale to the public at large, and offers non-personalized advice about options trading. **If the only activities engaged in by the Defendants were the publication of their online newsletters containing non-personalized advice about options trading, they would be excluded from the definition of 'investment adviser' under § 80b-2(a)(11)(D).**"*
· **Verbatim, at 532 (what defeated it):** *"Specifically, the complaint alleges that the Defendants advise their subscribers individually, by telephone or e-mail, as to the degree of risk associated with each auto-trading strategy, which of the several strategies to select given the subscriber's investment objectives, and when to switch from one strategy to another. Complaint ¶¶ 23, 40, 41, 42 (Doc. 1). The Defendants are compensated for that advice, in that they receive payment for their auto-trading services in the form of monthly subscriptions, over and above the subscription fees for the newsletter alone."*
· **Establishes, precisely:** **the existence of the menu of nine was not the disqualifier.** The court says in terms that publication alone would have been excluded. Three other things did the work: (i) individualized advice on *which* strategy and *when to switch*; (ii) that advice being separately compensated; (iii) the auto-trading power of attorney under which the customer learned of trades after the fact.
· **Supports** the frozen configuration on the multiplicity point — an array of selectable values, or a published example sitting next to a field, is not itself the line.
· **Undercuts** it at one precise place: **the moment any human, document, panel, tooltip or support channel tells a member which value to pick, or when to change it, is the moment this case lands.** A worked example labelled "here is the number" is closer to that line than a worked example labelled "here is how the book calculated its number."
· **Relevance: 5**
· **Where the line runs, stated precisely:** *Terry's Tips* does not care how many options exist, and does not care who wrote them. It cares whether the provider **counsels the selection**, whether the provider is **paid for the counselling separately from the publication**, and whether the provider **executes without the member seeing the trade first**. The frozen configuration is on the safe side of all three only if reference text remains descriptive of the book's own example and never becomes prescriptive of this member's field, and only if no support interaction ever answers "what should I put here?"

### B3 · *United States v. Elliott*, 62 F.3d 1304 (11th Cir. 1995) — `[CARRIED FROM P6, entry 21; verbatim re-verified]`
· https://static.case.law/f3d/62/html/1304-01.html
· Court of Appeals · 1995 · good law; cited by the Commission in IA-6050 n.25
· **Verbatim, at 1310:** *"Elliott and Melhorn clearly have provided investment advice to their customers, **both by advising them in their choice among Elliott Enterprise investment vehicles and by controlling the investments underlying those investment vehicles.**"*
· **Verbatim, at 1310, quoting IA-1092:** *"The staff considers a person to be 'in the business' of providing advice if the person: (i) Holds himself out as an investment adviser or as one who provides investment advice, (ii) receives any separate or additional compensation that represents a clearly definable charge for providing advice about securities … or (iii) on anything other than rare, isolated and non-periodic instances, provides specific investment advice."*
· **Establishes:** at court-of-appeals level, **advising on the choice among available options is itself the giving of investment advice**, independent of who authored the options.
· **Undercuts** the frozen configuration wherever anything in the product functions as guidance on which value to choose. Note the conjunction in the quoted holding — *Elliott* pairs choice-guidance with control over the underlying investments; the frozen configuration has the second half absent.
· **Relevance: 5**
· **Application note:** read with *Terry's Tips*, these two converge on one proposition — **guiding the selection is the advisory act.** Both are silent on *authoring* the thing selected. That silence is the whole of P6 finding 1.

### B4 · *Alfred A. Zurl*, SEC staff letter (Aug. 7, 1995) — `[CARRIED FROM P6, entry 7]`
· https://www.sec.gov/divisions/investment/noaction/1995/alfredzurl080795.pdf
· Staff letter · 7 Aug 1995 · cited as current by the Commission in IA-6050 n.34
· **Verbatim:** *"To qualify for the section 202(a)(11)(D) exclusion, under Lowe, the publication must be: 1) of a general and impersonal nature, in that the advice provided is not adapted to any specific portfolio or any client's particular needs; 2) 'bona fide' or genuine, in that it contains disinterested commentary and analysis as opposed to promotional material; and 3) of general and regular circulation, in that it is not timed to specific market activity or to events affecting, or having the ability to affect, the securities industry."*
· **Verbatim (status point):** *"The staff generally declines to express an opinion whether a person qualifies for the exclusion because this is a factual and not a legal determination."*
· **Relevance: 4.** **Application note:** no staff comfort is obtainable on limb (a) even if requested.

### B5 · *SEC v. Park* ("Tokyo Joe"), 99 F. Supp. 2d 889 (N.D. Ill. 2000) — `[CARRIED FROM P6, entry 5]`
· https://static.case.law/f-supp-2d/99/html/0889-01.html
· **Verbatim, at 893-94:** *"Defendants meet the basic definition of an 'investment adviser' in that over the Internet they 'for compensation, engag[e] in the business of advising others' … Thus, Defendants must fall within an exclusion in order to not be considered an 'investment adviser.'"*
· **Establishes:** the burden structure — inside the definition by default, exclusion is the escape hatch.
· **Undercuts.** **Relevance: 4.**

### B6 · *SEC v. Wall Street Publishing Institute*, 851 F.2d 365 (D.C. Cir. 1988) — `[CARRIED FROM P6, entry 8]`
· **Verbatim, at 371:** *"While it is true that after Lowe, the Stock Market Magazine cannot be considered an investment adviser within the meaning of the Investment Advisers Act, we do not think that the feature articles are necessarily immune from all regulation."*
· **Establishes:** winning (D) removes *status* exposure only. **Relevance: 3.**

### B7 · *Financial Planning Ass'n v. SEC*, 482 F.3d 481 (D.C. Cir. 2007) — `[CARRIED FROM P6, entry 9]`
· **Verbatim, at 483:** *"We agree, and we therefore grant the petition and vacate the final rule."* At 493: *"the SEC has exceeded its authority in promulgating the final rule."*
· **Undercuts** any expectation of a software/tooling carve-out arriving by SEC rule. **Relevance: 3.**

---

# Part C — The software/tool line: who performs the analysis, and whose model is it

### C1 · *Datastream International, Inc.*, SEC staff no-action letter (Mar. 15, 1993) — `[SUPERSEDES P6 entry 10 — expanded with the incoming letter's account of the predecessor letters, which is where limb (a) actually lives]`
· https://www.sec.gov/divisions/investment/noaction/1993/datastream-international-031593-202a.pdf
· Staff no-action letter (assurance granted, permitting withdrawal of adviser registration) · 15 March 1993 · **Status:** still cited as current by the Commission in IA-6050 n.29 (2022); nothing located withdrawing or superseding it. Text retrieved is an OCR of the SEC scan; punctuation is lossy, wording is intact.

**Verbatim (staff response — the three-part information test):** *"The staff takes the position that the presentation of securities data or information to subscribers does not constitute furnishing investment advice or an analysis or report within the meaning of Section 202(a)(11) if [i] the information is readily available to the public in its raw state, [ii] the categories of information are not highly selective and [iii] the information is not organized or presented in [a] manner which suggests the purchase[,] holding or sale of any security or securities."*

**Verbatim (staff response — the four factors; the commission asked for two of them by name):** *"In addition to providing no[-]action assurance as previously discussed[,] the staff has given no[-]action assurance to providers of various computer software services offering calculations and pricing models. In not requiring these providers to register as investment advisers the staff considered [a] number of factors including **the sophistication of the users**, **the degree to which the users themselves perform the calculations**, **the degree to which the product is prepackaged and not personalized for each customer**, and **whether the calculations or models are based on traditional or standard calculations**. These factors are relevant in determining whether computer software services function merely as **mathematical tools to facilitate users['] own analytical efforts** or whether they involve **the recommendation of securities**."*

**Verbatim (staff response — the conduit representation, relevant to limb (c)):** *"Datastream has no control over the Nomura and Hoare Govette generated data … You represent that Datastream will act merely as [a] passive communications conduit between these brokerage firms and their customers."*

**Verbatim (staff response — no stake in the outcome):** *"Datastream and its affiliates have no direct or indirect financial interest in whether [a] subscriber uses Datastream data and analytic tools to purchase[,] sell or hold [a] particular security."*

**Verbatim (staff response — limits):** *"On the basis of the facts and representations in your letters and without necessarily agreeing with your legal analysis … Because our position is based on the facts and representations in your letters you should note that different facts or representations may require a different conclusion."*

**The two factors the commission named, applied honestly to the frozen configuration:**

– **"whether the calculations or models are based on traditional or standard calculations."** The letter's own gloss, in the staff's words: *"You state that the analytic tools in some cases are standardized mathematical formulae that are already in the public domain[;] in other cases the tools are considered proprietary products or intellectual property protected by patent or copyright."* Both were accepted. **A published book's worked example is squarely on the "already in the public domain" side of this factor.** This is the single best-fitting factor the frozen configuration has, and it is the only place in the located material where *being published* helps rather than hurts. It is staff-level, fact-bound, and expressly non-binding.

– **"the degree to which the users themselves perform the calculations."** Framed as a **spectrum, not a switch**. No-preset onboarding moves the frozen configuration to the far favourable end of this factor and nothing in the material measures how far. This factor is the closest thing in federal material to a reward for member data entry, and it asks about *performing the analysis*, not about *typing a value*. **Typing a number the book computed is not performing the calculation.** That distinction is not drawn anywhere; it is the gap.

**The predecessor letters the incoming letter describes — the material limb (a) actually turns on.** (These passages are in the letter **from Datastream's counsel**, published by the SEC with the staff response. They are counsel's characterisation of earlier letters, not the staff's own words in this letter; the staff's response cites the same letters in its footnotes. Marked ◇ as to the predecessor letters' own texts, which were not independently retrieved.)

– ◇ **EJV Partners, L.P. / UniVu System (pub. avail. Dec. 7, 1992):** *"UniVu will enable customers to feed data directly into various calculations and investment models **which may be designed by the customer or provided by UniVu**. The calculations and models provided by UniVu will be **generally available and widely used formulae taught in business schools and published in finance textbooks**."* And: *"the staff found that the software services would function merely as mathematical tools to facilitate users['] own analytical efforts … The staff further found that while customers might engage in investment advisory activities through UniVu's Private Pages system[,] **UniVu will act merely as [a] passive communications conduit as evidenced by its lack of control over the dispatching and contents of the messages**."* And, adverse: *"In granting no[-]action assurance with respect to UniVu the staff found significant that **UniVu will be available only to institutional firms and not to the retail public**."*
 **This is the closest located authority to limb (a).** A system in which the values the model consumes may be **either customer-designed or supplied by the provider from published textbook formulae** received no-action assurance. It is also the closest located authority to limb (c) — a party with no control over content passing through it was treated as a passive conduit. Its adverse half is that the retail/institutional distinction was expressly load-bearing.

– ◇ **Wilson & Associates (pub. avail. May 25, 1988):** *"the staff has more recently taken the position that **as long as the information provider has built no subjective factors into the formulae or computations** the provision of those tools does not constitute investment advice … Counsel for Wilson represented that **no judgments regarding the weight or importance of any particular factor were made in preparing the software**[;] the software was only intended to be an arithmetical tool for licensees."*
 **The "no subjective factors built in" formulation is the single most transferable sentence located in favour of empty fields.** A field that ships empty contains no built-in judgment by definition.

– ◇ **Butcher & Singer, Inc. (pub. avail. Jan. 2, 1987) — a declination, and the sharpest adverse item in this section:** *"By contrast the staff **declined** to give no[-]action assurance to Butcher & Singer[,] [a] brokerage firm which proposed to offer its brokerage customers[,] for an annual fee[,] [a] monthly report concerning each security in the customer's portfolio. While the staff found that certain data in the reports would be available in its raw state and while other data would be derived by arithmetic calculations[,] the staff declined no[-]action because the data was highly selective **and the report was apparently intended to provide the brokerage customer with [a] basis for evaluating whether to hold or sell existing or to purchase different securities for his or her portfolio.**"*
 **Read that last clause against a worked example placed beside an input field.** Reference text placed there is, by its placement, intended to give the member a basis for deciding what to enter. Butcher & Singer is the staff declining on facts that include "intended to provide a basis for evaluating whether to hold, sell or purchase."

**Establishes:** the only articulated federal framework for software that produces investment output. Controlling dichotomy: *"mathematical tools to facilitate users' own analytical efforts"* versus *"the recommendation of securities."*
**Supports** the frozen configuration on factors 2 and 4 and on the Wilson "no subjective factors" line. **Undercuts** it on factor 1 (retail, not institutional), on the three-part test's third prong, and via the Butcher & Singer declination.
**Relevance: 5**
**Application note:** genuinely two-edged, and it was never a safe harbour for anything that emits buy/sell instructions. Its value to Track 4 is narrower and real: the letter chain treats **published, textbook, public-domain formulae as neutral inputs**, and treats **provider-built subjective weightings as the disqualifier**.

### C2 · *RDM Infodustries, Inc.*, SEC staff letter (Mar. 25, 1996) — `[CARRIED FROM P6, entry 12]`
· https://www.sec.gov/divisions/investment/noaction/1996/rfminfodustries032596.pdf
· **Status: NOT a no-action assurance. Verified in P6 against the document.**
· **Verbatim:** *"As we discussed in our telephone conversation on March 8, 1996, your letter does not present sufficient facts upon which to make a determination whether RDM must register under the Advisers Act."*
· **Relevance: 2 (negative).** Cite only for the proposition that the staff pointed back to the *Datastream* test.

---

# Part D — The external list, and enabling access without hosting

### D1 · *Missouri Innovation Center, Inc.*, SEC staff no-action letter (Oct. 17, 1995) — `[SUPERSEDES P6 entry 11 — expanded with the §15(a) half and the non-involvement representations, both of which bear on limb (c)]`
· https://www.sec.gov/divisions/investment/noaction/1995/missouriinnovation101795.pdf
· Staff no-action letter — **two divisions**: Market Regulation under Exchange Act §15(a), and Investment Management under Advisers Act §202(a)(11) · 17 October 1995 · OCR of the SEC scan

· **Verbatim (Investment Management position and the four representations):** *"we note your representations th[a]t: (i) Missouri Innovation wil[l] prepare the sum[m]ar[i]es to be included in the Newslett[e]r by extract[]ing information from issuers' offer[]ing materials; (ii) the Newsletter and sum[m]ar[i]es wil[l] not offer any **endorsement, analysis or recommendation** as to the securities listed therein; (iii) with cert[a]in limited exceptions, **all issuers with a Form U-7 on file** with the Missouri Division of Securities wil[l] be included in the Newsletter sum[m]aries; and (iv) **the listings wil[l] be organi[z]ed alphabetically by issuer.**"*

· **Verbatim (the non-involvement representations — new in this pass, directly on limb (c)):** *"MICI wil[l] not be involved with any communications, discussions, or negotiations between an issuer and potential investors regarding possible investments. MICI wil[l] not match borrowers and lenders, or buyers and sellers, and wil[l] not act as agent for any par[ty]. Issuers and potential investors wil[l] conduct their discussions and negotiations independently. MICI will not have access to or p[o]ssession of fu[n]ds, securities, or propert[i]es of any person receiving the newslett[e]r or any other th[ir]d par[ties]."*

· **Verbatim (Market Regulation §15(a) position):** *"On the basis of your representations and the facts presented, and str[i]ct adherence thereto by MICI, the staff of the Division of Market Regulation wil[l] not recommend enforcement action to the Comm[i]ssion under Section 15(a) of the Exchan[g]e[] Act if MICI engages in the activities described above without register[]ing with the Commission as a broker-dealer."*

· **Verbatim (the closed door):** *"The Division of Investment Man[a]gement, on a number of occasions, has expressed its views regarding the circumstan[c]es in which the presentation of securities information constitutes an anlysis or report concern[]ing securities for pur[p]oses of section 202(a)(11) of the Advisers Act. **Having stated our views, we wil[l] no longer respond to requests for interpretive or no-action letters in th[i]s area unless they present novel or unusual issues.**"*

· **Establishes:** a **complete, unranked, alphabetically ordered, non-endorsing** listing was accepted as outside "analysis or report"; and the staff closed this line of letters in 1995.
· **Supports** the *enabler's* position — MICI neither matched parties, nor held funds, nor participated in the communications, and got both a §15(a) and an Advisers Act pass. **Undercuts** the *curator's* position: a **selected monthly universe is by construction neither complete nor unranked**, which is the second *Datastream* prong ("highly selective").
· **Relevance: 5**
· **Application note, stated exactly.** The frozen configuration splits into two parties on this letter's own terms. **The third party who curates a monthly universe is on the wrong side of representation (iii)** — "all issuers on file" is the opposite of "our monthly selection." **The party that merely enables the member's runtime to fetch it, without hosting, mirroring, selecting, ordering or endorsing, sits on the side of the non-involvement representations.** Nothing in the letter, and nothing located anywhere, attaches the curator's problem to the enabler.

### D2 · Commission Guidance on the Use of Company Web Sites, Rel. Nos. 34-58288, IC-28351, File No. S7-23-08, 73 FR 45862 (Aug. 7, 2008) — `[NEW — and this SUPERSEDES P6's ◇ marking of IC-28351 at S1 entry 24; the release is now retrieved and quoted verbatim from the Federal Register]`
· https://www.federalregister.gov/documents/full_text/text/2008/08/07/E8-18148.txt
· Commission interpretive release · effective 7 August 2008 · **Status:** interpretation; never withdrawn; cited by the Commission as authority for the adoption/entanglement framework in IA-5653 n.43 (2020)
· **Domain caveat, load-bearing:** this is antifraud attribution under Exchange Act §10(b) and Rule 10b-5. **It is not a §202(a)(11) status test.** Its transfer to Track 4 is analogical — but it is the *only* located federal instrument that addresses whether displaying someone else's material inside your own surface makes it yours.

· **Verbatim (the framework):** *"whether third-party information is attributable to a company depends upon whether the company has: (1) involved itself in the preparation of the information, or (2) explicitly or implicitly endorsed or approved the information. In the case of company liability for statements by third parties such as analysts, the courts and we have referred to the first line of inquiry as the ''entanglement'' theory and the second as the ''adoption'' theory."*

· **Verbatim, n.77 (the embedding rule — the single most adverse sentence located for limb (b)):** *"in the context of a document required to be filed or delivered under the federal securities laws, we believe that **when a company embeds a hyperlink to a Web site within the document, the company should always be deemed to be adopting the hyperlinked information.**"*

· **Verbatim (the three factors):** *"<bullet> **Context of the hyperlink**--what the company says about the hyperlink or what is implied by the context in which the company places the hyperlink; <bullet> **Risk of confusing the investors**--the presence or absence of precautions against investor confusion about the source of the information; and <bullet> **Presentation of the hyperlinked information**--how the hyperlink is presented graphically on the Web site, including **the layout of the screen containing the hyperlink.**"*

· **Verbatim (the key question):** *"Does the context of the hyperlink and the hyperlinked information together create a reasonable inference that the company has approved or endorsed the hyperlinked information?"*

· **Verbatim (the starting assumption — adverse):** *"we begin with the assumption that providing a hyperlink to a third-party Web site indicates that the company believes the information on the third-party Web site may be of interest to the users of its Web site. Otherwise, it is unclear to us why the company would provide the link."*

· **Verbatim (selectivity — adverse, and it maps onto a single worked example beside a single field):** *"**The degree to which a company is making a selective choice to hyperlink to a specific piece of third-party information likely will indicate the extent to which the company has a positive view or opinion about that information.** … Conversely, the more general or broad-based the hyperlinked information is, the company may consider providing a more general explanation."*

· **Verbatim (disclaimers do not cure):** *"we do not view a disclaimer alone as sufficient to insulate a company from responsibility for information that it makes available to investors whether through a hyperlink or otherwise."*

· **Verbatim (exit notices):** *"a company also may determine to use other methods, including ''exit notices'' or ''intermediate screens,'' to denote that the hyperlink is to third-party information. While the use of ''exit notices'' or ''intermediate screens'' helps to avoid confusion as to the source of the third-party information, no one type of ''exit notice'' or ''intermediate screen'' will absolve companies from antifraud liability."*

· **Establishes:** attribution of third-party material turns on **context, source-confusion precautions, and screen layout** — and **embedding inside your own document is treated as adoption per se** in the filed-document context.
· **Supports** limb (c): the direct-fetch design is structurally a hyperlink at its most attenuated — the Company does not host, mirror, cache, relay or re-serve, and the fetch is initiated by the member's own runtime after an explicit enable act. On this release's own factors, that is the lowest-attribution shape available short of not offering it at all.
· **Undercuts** limb (b), and this is the sharpest adverse item in Track 4: **the release's operative variables are exactly the ones the frozen configuration changes.** "Beside the field" is *presentation and layout of the screen*. A single worked example next to a single input is *a selective choice to display a specific piece of third-party information*. And the release says twice that a disclaimer does not fix it.
· **Relevance: 5**
· **Application note:** the distinguishing facts available are (i) the domain — this is 10b-5 attribution for issuers, not adviser status, and no located authority carries it into §202(a)(11); (ii) the "always adopting" rule is expressly confined to *documents required to be filed or delivered under the federal securities laws*, which an onboarding screen is not; and (iii) *what the company says about it* is a factor the design controls — the difference between "the book's example" and "the recommended value" is the difference the release itself says matters most.

### D3 · Use of Electronic Media, Rel. No. 34-42728, 65 FR 25843 (May 4, 2000) — `[NEW, ◇]`
· ◇ **Not independently retrieved.** `https://www.sec.gov/rules/interp/34-42728.htm` 302-redirects to `https://www.sec.gov/rule-release/34-42728`, which returns a 58 KB navigation shell with no release body. The text below is taken verbatim from two Commission releases that quote it with attribution: the 2008 Release (n.78) and IA-5653 (n.47).
· **Verbatim, as quoted in the 2008 Release n.78:** *"[i]n the case of hyperlinked information, liability under the 'entanglement' theory would depend upon a company's level of pre-publication involvement in the preparation of the information. In contrast, liability under the 'adoption' theory would depend upon whether, after its publication, a company, explicitly or implicitly endorses or approves the hyperlinked information."*
· **Verbatim, as quoted in IA-5653 n.47:** *"[L]iability under the 'entanglement' theory would depend upon an issuer's level of pre-publication involvement in the preparation of the information."*
· **Establishes:** the doctrinal origin of adoption/entanglement, and the timing split — entanglement is *pre-publication*, adoption is *post-publication*.
· **Supports** the frozen configuration on entanglement: a party that had no involvement whatever in writing the book, and none in compiling the third party's monthly list, is outside the entanglement limb by definition. **Relevance: 4.**

---

# Part E — Adoption as a defined legal operation

### E1 · *Investment Adviser Marketing*, Advisers Act Rel. No. IA-5653, File No. S7-21-19 (Dec. 22, 2020), 86 FR 13024 (Mar. 5, 2021) — `[SUPERSEDES P6 entry 24 — same doctrine, pin-cites now verified against the SEC PDF's own pagination at pp. 20-22]`
· https://www.sec.gov/files/rules/final/2020/ia-5653.pdf
· Commission adopting release · 22 December 2020 · final rule (Rule 206(4)-1), effective 4 May 2021, in force
· **Predicate that must be stated every time this release is cited (P6 S5 A9/A10):** the marketing rule's addressee is *"any investment adviser registered or required to be registered under section 203."* It imposes no free-standing duty on a person outside the definition. It is cited here for **doctrine**, not for application.

· **Verbatim, at 20-21 — the doctrine, as the commission asked for it:** *"whether the third-party information is attributable to the adviser will require an analysis of the facts and circumstances to determine **(i) whether the adviser has explicitly or implicitly endorsed or approved the information after its publication (adoption) or (ii) the extent to which the adviser has involved itself in the preparation of the information (entanglement).**"*

· **Verbatim, at 21:** *"An adviser 'adopts' third-party information when it explicitly or implicitly endorses or approves the information. For example, if an adviser incorporates information it receives from a third party into its performance advertising, the adviser has adopted the third-party content, and the third-party content will be attributed to the adviser. **An adviser is liable for such third-party content under the marketing rule just as it would be liable for content it produced itself.**"*

· **Verbatim, at 22 — the narrow carve-out, quoted in full because its shape matters:** *"Nevertheless, we would not view an adviser's edits to an existing third-party communication to result in attribution of that communication to the adviser if the adviser edits a third party's communication **based on pre-established, objective criteria** (i.e., editing to remove profanity, defamatory or offensive statements, threatening language, materials that contain viruses or other harmful components, spam, unlawful content, or materials that infringe on intellectual property rights, or editing to correct a factual error) **that are documented in the adviser's policies and procedures and that are not designed to favor or disfavor the adviser.** In these circumstances, we would not view the adviser as endorsing or approving the remaining content by virtue of such limited editing."*

· **Verbatim, at 22 (hyperlinks, the closest application):** *"an adviser might include a hyperlink in an advertisement to an independent webpage on which third-party content sits. An adviser should consider the adoption and entanglement concepts discussed above to determine whether the hyperlinked third-party content would be attributed to the adviser."*

· **Establishes: this is the only place in Advisers Act law where "adoption" is a defined operation — and it equates the adopter with the author.** Its domain is attribution of advertising content, not adviser status.
· **Applied to a product that quotes a third-party number next to an input field — the adverse anchor the commission asked for, stated without softening.** The doctrine's two limbs are (i) endorsement or approval *after publication* and (ii) involvement *in preparation*. A product that selects one worked example from a book, extracts the number, and places it adjacent to the field it belongs in has done nothing that is *entanglement* — it had no hand in writing the book. But **selecting and positioning it is precisely the conduct the adoption limb describes as implicit endorsement**, and the 2008 Release (D2 above), which is IA-5653's own cited source, says in terms that layout and selectivity are the factors. The frozen configuration's answer has to be that the domain is wrong — attribution of *advertising content* by a *registered adviser* — and that answer is structural, not substantive. **Nothing located says the doctrine stops at the domain boundary; nothing located says it crosses it either.**
· **The carve-out, and how close the frozen configuration is to it.** The carve-out's four conditions are: *pre-established*, *objective*, *documented in policies and procedures*, and *not designed to favor or disfavor*. A rule that reference text is (a) reproduced verbatim from a named published source, (b) never selected per member, (c) never varied by the product, and (d) documented as such, is the same **shape** as the carve-out. It is not within it — the carve-out is about **editing down** a third party's communication, not about **displaying** one — but it is the nearest analogical support located for a mechanical, non-selective, documented handling of someone else's words.
· **Supports** the member's side: a member who types a value owns it the way a person owns what they wrote. **That is the only federal instrument that says anything of the kind — and note that it says it in order to impose liability, not to relieve anyone.**
· **Undercuts** the product's side: the doctrine was built precisely to stop a party handing over content and pointing at the recipient's act.
· **Relevance: 5**
· **This entry is the answer to P6's explicit question, and the answer has not changed: the one authority that uses the word "adoption" uses it to make the adopter into an author, not to make an author into a bystander.**

### E2 · *In the Matter of BB&T Securities, LLC*, Advisers Act Rel. No. IA-4506 (Aug. 25, 2016) — `[CARRIED FROM P6, entry 17]` ◇
· ◇ The order itself was not independently retrieved in P6 or in this pass. Quote is the Commission's own characterisation in IA-5653 n.45, verified verbatim in this pass: *"The Commission brought an enforcement action against an SEC-registered investment adviser alleging that it negligently relied on a third party's materially inflated, and hypothetical and backtested, performance track record in preparing advertisements that the adviser sent to advisory clients and prospective clients."*
· **Establishes:** the downstream user of a third party's numbers carries exposure. **Undercuts** from the member's side. **Relevance: 3.**

### E3 · IM Guidance Update No. 2017-02, "Robo-Advisers" (Feb. 2017) — `[CARRIED FROM P6, entry 18; page-7 passage re-verified in full]`
· https://www.sec.gov/investment/im-guidance-2017-02.pdf
· Division of Investment Management staff guidance · February 2017 · **staff-level, no legal force**
· **Verbatim, at 7, in full:** *"Many robo-advisers give clients the opportunity to select portfolios other than those that they have recommended. Some robo-advisers do not, however, give a client the opportunity to consult with investment advisory personnel about how the client-selected portfolio relates to the client's stated investment objective and risk profile, and its suitability for that client. This may result in a client selecting a portfolio that the robo-adviser believes is not suitable for the investment objective and risk profile the robo-adviser has generated for the client based on his or her questionnaire responses. Thus, consistent with its obligation to act in its client's best interests, a robo-adviser should consider providing commentary as to why it believes particular portfolios may be more appropriate for a given investment objective and risk profile. In this regard, a robo-adviser may wish to consider whether pop-up boxes or other design features would be useful to alert a client of potential inconsistencies between the client's stated objective and the selected portfolio."*
· **Establishes, as contrast:** the guidance assumes a **registered adviser exercising discretion** that has **already generated a recommendation**. Its one transferable point is adverse: **a client's own selection does not discharge the provider**; the staff's prescribed response to off-menu selection is *more* commentary, not less responsibility.
· **The distinguishing fact the frozen configuration actually has, and it is a real one:** every sentence of this passage presupposes a provider that *has a recommendation to depart from*. A product with empty fields and no preset has generated nothing for the member to select against. The passage has no purchase where there is no recommended baseline. **That is a distinction on the guidance's own predicate, not a distinction the staff drew.**
· **Undercuts** any design that ships a suggested value; **near-neutral** against fields that ship empty.
· **Relevance: 4**

### E4 · Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Rel. IA-5248 (June 5, 2019), 84 FR 33669 — `[CARRIED FROM P6, entry 25]`
· **Verbatim:** *"an adviser's federal fiduciary duty may not be waived, though it will apply in a manner that reflects the agreed-upon scope of the relationship."* **n.27:** *"This Final Interpretation also applies to automated advisers, which are often colloquially referred to as [robo-advisers]."*
· **Establishes:** scope can be shaped by agreement; status and duty cannot be disclaimed. **Undercuts** any reliance on wording placed beside a field to change status. **It does not create duty in a party that does not have it.** **Relevance: 4.**

### E5 · Request for Comment on Certain Information Providers Acting as Investment Advisers, Rel. IA-6050 / IC-34618, File No. S7-18-22, 87 FR 37254 (June 22, 2022) — `[CARRIED FROM P6, entry 13]`
· https://www.sec.gov/rules/other/2022/ia-6050.pdf
· **Request for comment only — no proposed rule, no interpretation.** Comment period reopened 18 Oct 2022 (87 FR 63016). **P6 verified: no later Commission action; the file remains open.**
· **Verbatim, at 12:** *"the receipt of any economic benefit, whether in the form of an advisory fee or some other fee relating to the total services rendered, commissions, or some combination of the two, would generally suffice with respect to compensation … The source of an 'economic benefit' that would satisfy this element of the definition is not, however, limited to fees and commissions."*
· **Verbatim, at 14-15:** *"Certain providers have relied on the publisher's exclusion. We believe that index providers have historically concluded, for example, that, even if they meet the definition of investment adviser, they may rely on the exclusion … Given the length of time since Lowe was decided, and understanding that new business models have developed in the interim, we are considering the extent to which providers' activities, in whole or in part, may raise investment adviser status issues."*
· **Establishes:** the Commission has publicly questioned whether third-party list and model providers are advisers, and **has not answered in four years**.
· **Directly relevant to limb (c):** IA-6050 asks about **the provider's** status. Nowhere does it suggest that a licensee, deliverer or enabler acquires status by delivering. **That is an absence of authority, not an authority.**
· **Undercuts** the curator. **Neutral** as to the enabler. **Relevance: 5.**

### E6 · Outsourcing by Investment Advisers (87 FR 68816) and Predictive Data Analytics (88 FR 53960) — **BOTH WITHDRAWN** — `[CARRIED FROM P6, entries 14-15]`
· Withdrawn by Rel. Nos. 33-11377; 34-103247; IA-6885; IC-35635, 90 FR 25531 (June 17, 2025) — https://www.federalregister.gov/documents/full_text/text/2025/06/17/2025-11110.txt
· **Verbatim:** *"The Commission does not intend to issue final rules with respect to these proposals. If the Commission decides to pursue future regulatory action in any of these areas, it will issue a new proposed rule."*
· **Establishes:** the two rulemakings that would most directly have touched a third party's model or list in someone else's product are **formally dead**. **Do not cite either as a Commission position.** **Relevance: 4.**

### E7 · *In the Matter of F-Squared Investments, Inc.*, Rel. IA-3988 / IC-31393 (Dec. 22, 2014) — `[CARRIED FROM P6, entry 16]`
· https://www.sec.gov/litigation/admin/2014/ia-3988.pdf
· **Verbatim, ¶7:** *"F-Squared marketed an ETF sector rotation strategy called AlphaSector that was based on an algorithm that yields a 'signal' indicating whether to buy or sell nine industry ETFs."* **¶13:** *"the Private Wealth Advisor decided to co-found a signal provider company (the 'Data Provider') with his intern. The Data Provider would send data with in/out signals to F-Squared …"*
· **Establishes:** **the author of the signal set was the party the Commission proceeded against**, not the downstream implementers of $28.5bn.
· **Limit that must be stated:** F-Squared was already registered and the violations were fraud in performance advertising, not status. **Relevance: 5** for exposure-location; **0** for status.

---

# Part F — What happens to a published number after publication: the reverse direction

*This section is `[NEW]` in its entirety. P6 did not reach it. It is the answer to the commission's question "any authority in which a publisher was held responsible for what readers did with published numbers."*

### F1 · *First Equity Corp. of Florida v. Standard & Poor's Corp.*, 869 F.2d 175 (2d Cir. 1989) — `[NEW]`
· https://static.case.law/f2d/869/html/0175-01.html
· Court of Appeals · decided 2 March 1989 · good law
· **Facts, verbatim at 175-78:** investors read a summary of convertible-note terms in S&P's *Corporation Records*, *"calculated"* from it that the securities would be convertible at principal plus accrued interest, *"accordingly decided to hold the securities they had already purchased and to purchase even more of this 'excellent investment,'"* and lost over $265,000 when the summary proved wrong.
· **Verbatim, at 175:** *"This case involves the scope of liability for negligent misstatements in the specialized sub-industry that publishes newsletters and provides information services for the use of investors and investment professionals."*
· **Verbatim, at 178-79:** *"We agree with Judge Goettel that '[a] subscriber is not significantly different from other purchasers of a publication merely because he pays for it on a more or less regular basis.'"*
· **Verbatim, at 179 (the holding, and the sentence that matters most to limb (a)):** *"Users of Corporation Records are well aware that the summaries involve thousands of complicated financial documents and are thus often only the starting point for research rather than the finish line. Appellants' position mistakenly treats such summaries as a substitute for the originals and ignores the fact that users can easily protect themselves from misstatements or inaccuracies by examination of the original documents or federally required prospectuses. In such circumstances, we believe that **a user is in the best position to weigh the danger of inaccuracy and potential loss arising from a particular use of a summary** … That being the case, **the user should bear the risk of failing to verify the accuracy of a summary in the absence of proof of a knowing misstatement.**"*
· **Verbatim, at 179 (the parentheticals collecting the line):** *"see Gutter v. Dow Jones, Inc., 22 Ohio St.3d 286, 490 N.E.2d 898 (1986) (**publisher of Wall Street Journal not liable to subscriber for non-defamatory negligent misrepresentation relied on by reader in choosing securities investment**); Gale v. Value Line, Inc., 640 F.Supp. 967 (D.R.I.1986) (**publisher of Value Line not liable to subscriber who purchased warrants in reliance on incomplete summary of warrant terms** where Value Line had recommended against purchase of those warrants)."*
· **Establishes:** a federal court of appeals allocating the risk of acting on published securities information **to the reader**, expressly, on a rationale of who is best placed to verify.
· **Domain caveat:** state tort law (New York and Florida), decided without reaching the First Amendment. **Not a §202(a)(11) status holding.** Its transfer is one of principle, not of doctrine.
· **Supports** the frozen configuration on limb (a): the located federal appellate law on this exact fact pattern — reader reads published number, acts on it, loses money — places the consequence on the reader, not the publisher.
· **Relevance: 4**
· **Application note:** this is the closest thing located to a direct answer to "does copying a published number carry the publisher's advice into the product." The answer in tort is that it does not even carry the publisher's *liability* to the reader who acted on it.

### F2 · *Winter v. G.P. Putnam's Sons*, 938 F.2d 1033 (9th Cir. 1991) — `[NEW]`
· https://static.case.law/f2d/938/html/1033-01.html
· Court of Appeals · 1991 · good law; relied on in *O'Neil v. Validea.com*, 202 F. Supp. 2d at 1121
· **Verbatim, at 1034:** *"Plaintiffs are mushroom enthusiasts who became severely ill from picking and eating mushrooms after relying on information in The Encyclopedia of Mushrooms, a book published by the defendant."*
· **Verbatim, at 1036-37 (the holding):** *"**We conclude that the defendants have no duty to investigate the accuracy of the contents of the books it publishes.** A publisher may of course assume such a burden, but there is nothing inherent in the role of publisher or the surrounding legal doctrines to suggest that such a duty should be imposed on publishers. Indeed the cases uniformly refuse to impose such a duty. Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs."*
· **Verbatim, at 1034 (ideas are not products):** *"A book containing Shakespeare's sonnets consists of two parts, the material and print therein, and the ideas and expression thereof. The first may be a product, but the second is not."*
· **Verbatim, at 1036 — and this is the adverse half, which must not be skipped:** *"Aeronautical charts are highly technical tools. They are graphic depictions of technical, mechanical data. The best analogy to an aeronautical chart is a compass. Both may be used to guide an individual who is engaged in an activity requiring certain knowledge of natural features. **Computer software that fails to yield the result for which it was designed may be another.** In contrast, The Encyclopedia of Mushrooms is like a book on how to use a compass or an aeronautical chart. **The chart itself is like a physical 'product' while the 'How to Use' book is pure thought and expression.**"*
· **Establishes:** two things, pulling opposite ways. **Supports:** a publisher owes no duty to investigate, and readers who act on published information have no claim against the publisher — the strongest general statement located. **Undercuts:** the Ninth Circuit **expressly separates the book from the software**, and puts software on the *tool/product* side of the line alongside aeronautical charts, while putting the book on the *pure thought and expression* side.
· **Relevance: 4**
· **Application note, and it is the sharpest structural point in Track 4:** the one federal appellate authority located that compares a book to a software tool **does not treat them alike.** The frozen configuration's argument for limb (b) is that the book's example is the same thing whether it sits in the book or beside a field. *Winter* is authority — in a different doctrinal domain — that **the book and the tool are different in kind**, and that the tool is the one that gets treated as a product.

### F3 · *Gutter v. Dow Jones, Inc.*, 22 Ohio St. 3d 286, 490 N.E.2d 898 (1986); *Gale v. Value Line, Inc.*, 640 F. Supp. 967 (D.R.I. 1986) — `[NEW]` ◇
· ◇ Neither retrieved independently. Both are quoted with holdings, verbatim, in the parentheticals at *First Equity*, 869 F.2d at 179 (set out at F1 above). *Gutter*'s reporter text was located at `https://static.case.law/ohio-st-3d/22/html/0286-01.html` (200, 21,670 bytes) but is not quoted here beyond the *First Equity* parenthetical.
· **Establishes:** publishers of a general financial newspaper and of an investment advisory newsletter were **not liable** to subscribers who acted on their published information. **Supports.** **Relevance: 3.**

### F4 · *William O'Neil & Co. v. Validea.com Inc.*, 202 F. Supp. 2d 1113 (C.D. Cal. 2002) — `[NEW]`
· https://static.case.law/f-supp-2d/202/html/1113-01.html
· Federal district court · 31 January 2002 · Order dismissing with leave to amend; preliminary injunction denied
· **This is the closest located case to the actual limb-(a)/(b) fact pattern: a product that took a published author's investment methodology, reduced it to parameters, and applied it — and the author sued.**
· **Verbatim, at 1114:** *"Defendants authored and published a book describing and analyzing the investment strategies of well-known financial analysts and stock pickers, including Plaintiff William O'Neil. **O'Neil did not consent to Defendants' use of his name or investment strategies.**"*
· **Verbatim, at 1115:** *"The authors of the book are John Reese and Todd Glassman, the Chairman and Investment Strategies Product Manager, respectively, of Defendant Validea.com ('Validea'), **an Internet website that posts and analyzes the investment strategies of well-known financial analysts and stock pickers**."*
· **Verbatim, at 1116 (the author's own complaint about how his published method was implemented — the adverse core):** *"the charts in 'The Market Gurus' book omit information vital to a proper application of Plaintiffs' method. The charts also appear to weigh various factors differently than do Plaintiffs. Furthermore, 'The Market Gurus' book states the result for an individual stock in terms of 'pass' or 'fail' whereas Plaintiffs do not condone the issuance of such strong recommendations to buy or sell a particular stock … **Defendants are misapplying Plaintiffs' methods to incomplete and outdated information to produce recommendations stronger than those Plaintiffs would issue** even after a proper application of Plaintiffs' method."* And: the defendants placed O'Neil's name on the cover *"in a way that is likely to cause confusion and create the false impression that Plaintiffs authorized and/or contributed to"* the product.
· **Verbatim, at 1119-20 (holding on characterisation):** *"The Market Gurus is a book that analyzes the investment strategies of well-known financial analysts and stock pickers. **It does not 'propose a commercial transaction' and is therefore not commercial speech.**"* And: *"His insights into investment strategy are therefore no less a matter of public concern than the insights of leading philosophers or scientists into their respective fields."*
· **Verbatim, at 1121 (adopting *Winter*):** *"Expanding § 17200 liability to factual errors contained in a book would also contravene Ninth Circuit cases holding that the First Amendment precludes imposing liability on the publisher for factual inaccuracies contained in a book, because a book publisher does not have a duty to investigate the accuracy of the contents of the books it publishes."*
· **Establishes:** three findings, all of them useful and one of them adverse.
 1. **The legal theory that actually got pleaded when a product reproduced a published author's investment method was right of publicity, false endorsement and unfair competition — not investment-adviser status.** No adviser-status claim was raised by anyone. That is a negative finding of the most directly relevant kind.
 2. Those claims **failed** absent an allegation of knowing or reckless falsity, or of a knowing false claim of endorsement.
 3. **Adverse:** the complaint that survived in shape, if not in pleading, was that the product **implemented the published method in a way the author would not endorse and created a false impression of authorization.** That is the live risk vector for placing a named published example beside a field — implied endorsement running *from* the publisher *to* the product — and it is the mirror image of what limb (a) asks about.
· **Supports** limb (a) on the doctrinal point: reproducing and applying a published investment methodology is protected expression and does not, in the one located case, carry adviser status anywhere.
· **Undercuts** limb (b) on the practical point: the risk of quoting a named source beside a field is a **misattribution and implied-endorsement** risk, not a status risk — and it is the risk the publisher, not the regulator, enforces.
· **Relevance: 4**

### F5 · *Keimer v. Buena Vista Books, Inc.*, 75 Cal. App. 4th 1220, 89 Cal. Rptr. 2d 781 (1999) — `[NEW]`
· https://static.case.law/cal-app-4th/75/html/1220-01.html
· California Court of Appeal · 1999 · treated as authority in *O'Neil v. Validea.com*, 202 F. Supp. 2d at 1121
· **The "Beardstown Ladies" case. The whole point of it, for Track 4, is that the same investment number was treated differently depending on the surface it appeared on.**
· **Verbatim, at 1222:** *"In this appeal we decide a narrow question: **Does the First Amendment protect advertising statements made on book and videotape covers which reiterate verifiably false factual statements contained in the books and videotape themselves?**"*
· **Verbatim, at 1224 (the numbers):** *"Displayed prominently on the front and back covers and the packaging of these materials there often appeared statements such as '23.4% Annual Return'; '59.5% returns in 1991'; 'find [the Beardstown Ladies'] secret recipe for success'; and 'learn how to outperform mutual funds and professional money managers 3 to 1.'"*
· **Verbatim, at 1225:** the judicially noticed materials *"supported Disney's claim on demurrer that the advertising statements made on those covers **were contained in the text of the books themselves**."*
· **Verbatim, at 1229-30 (the holding):** *"We must also determine whether the speech refers to a specific product, which in the case of a book or videotape cover it obviously does. The covers are touting the content of the material inside … It is true, of course, that the subject matter of the books — achieving economic security by investing — is of interest to the general public. However, speech can be considered commercial even though it contains information which enables the public to ''cope with the exigencies of their period.'' … **We hold that the statements made on the book and videotape covers are commercial speech, entitled only to qualified free speech protection.**"*
· **Verbatim, at 1231-32 (rejecting the argument the frozen configuration would need):** *"We turn to the crux of respondents' argument, which is that **if a book's content is noncommercial and entitled to First Amendment protection, then material taken from that content and used in advertising is also entitled to full First Amendment protection.** We do not dwell at length on the argument, because a review of Disney's authorities reveals that each is materially distinguishable …"*
· **Establishes, and this is the direct answer to limb (b) in the material located:** **the identical investment figure had one legal character inside the book and a different one when moved onto a promotional surface.** The court expressly rejected the proposition that protection travels with the number from the text to the new location.
· **Domain caveat:** California unfair-competition and false-advertising law, First Amendment analysis. **Not securities status.** And the surface at issue was concededly *advertising*. An onboarding field is not conceded to be advertising, and *Keimer*'s three *Bolger* characteristics (concededly an advertisement; refers to a specific product; economic motivation) do not automatically hold for it.
· **Undercuts** limb (b): the one located authority squarely on "same number, different surface" says **the surface changes the answer**.
· **Relevance: 5** — it is the highest-value new item in this section, and it is adverse.
· **The distinguishing fact available, stated honestly:** in *Keimer* the number was moved onto the **seller's promotional surface for the seller's own product**, and the number was **false**. Neither is true of a verbatim reproduction of a book's worked example beside a field. That is a real distinction. It is also not one any court has drawn.

### F6 · *Lacoff v. Buena Vista Publishing, Inc.*, 183 Misc. 2d 600, 705 N.Y.S.2d 183 (N.Y. Sup. Ct. Jan. 28, 2000) — `[NEW]` ◇
· ◇ **Text not retrieved.** Caption, court, date, judge (Cahn), counsel and four parallel citations were obtained from the CourtListener v4 search API (5 Sep 2026); the opinion text is behind an authenticated endpoint (401) and behind a Cloudflare challenge on the public page (202, zero bytes); the volume is not in the `static.case.law` bucket (404).
· **Holding, as characterised verbatim in *O'Neil v. Validea.com*, 202 F. Supp. 2d at 1121:** *"But see **Lacoff v. Buena Vista Publishing, Inc.**, 183 Misc.2d 600, 705 N.Y.S.2d 183 (2000) (holding that exact same speech at issue in Keimer — the book cover, flyleaf and introduction to the book which stated a fact made by the authors in the book itself — **was not commercial speech because it 'states a fact made by the authors in the text; it is not about the Book as a product'**)."*
· **Establishes:** a New York court reached the **opposite** result from *Keimer* on the identical facts, on the reasoning that restating in a promotional position a fact the authors made in the text **does not convert it into commercial speech**.
· **Supports** limb (b) — and it is the only located authority that does so directly: **a number that merely restates what the book says, and is not about the product, does not change character by being displayed elsewhere.**
· **Relevance: 4, discounted to reflect ◇ status.** Trial-level state court, in acknowledged conflict with a California Court of Appeal, known to this register only through a federal district court's parenthetical. **Do not brief this without producing the opinion.**

---

# Part G — Reference material embedded in a tool, treated as distinct from a recommendation

*This section is `[NEW]`. Domain caveat applies throughout: these are FINRA/NASD instruments addressed to **broker-dealer members**, governing the suitability and communications rules. They are not §202(a)(11) status tests, and no located authority carries them into the Advisers Act. They are cited because they are the only place in located federal-level material where the question "is this help text or is it a recommendation?" is actually asked and answered.*

### G1 · FINRA Rule 2111, Supplementary Material .03 ("Recommended Strategies") — `[NEW]`
· https://www.finra.org/rules-guidance/rulebooks/finra-rules/2111 · Current FINRA rulebook, retrieved 5 September 2026 · amended by SR-FINRA-2020-007 eff. 30 June 2020
· **Verbatim, .03, the exclusion list:** *"(a) **General financial and investment information**, including (i) basic investment concepts, such as risk and return, diversification, dollar cost averaging, compounded return, and tax deferred investment, (ii) historic differences in the return of asset classes (e.g., equities, bonds, or cash) based on standard market indices, (iii) effects of inflation, (iv) estimates of future retirement income needs, and (v) assessment of a customer's investment profile; … (c) **Asset allocation models that are (i) based on generally accepted investment theory, (ii) accompanied by disclosures of all material facts and assumptions that may affect a reasonable investor's assessment of the asset allocation model or any report generated by such model**, and (iii) in compliance with Rule 2214 …; and (d) **Interactive investment materials that incorporate the above.**"*
· **Establishes:** an operative rule — not guidance — under which **general investment information and generally-accepted-theory models are expressly outside the "recommendation" trigger, including when delivered as interactive materials.**
· **Supports** limb (b) more concretely than anything else located: a worked example drawn from a published book, presented as general information about how a calculation is done, is the closest analogue in operative US rule text to an excluded category — **provided** it stays general and is accompanied by the assumptions.
· **The limit, stated:** the exclusion is for **general** information and **generally accepted theory**. A specific number for a specific field is neither general nor a model. Exclusion (a)(ii) is limited to *"standard market indices"*; exclusion (c) requires *"generally accepted investment theory."*
· **Relevance: 4**

### G2 · FINRA Rule 2214, "Requirements for the Use of Investment Analysis Tools" — `[NEW]`
· https://www.finra.org/rules-guidance/rulebooks/finra-rules/2214 · Current rulebook, retrieved 5 September 2026
· **Verbatim, (b) Definition:** *"an 'investment analysis tool' is an interactive technological tool that produces simulations and statistical analyses that present the likelihood of various investment outcomes if certain investments are made or certain investment strategies or styles are undertaken, thereby serving as an additional resource to investors in the evaluation of the potential risks and returns of investment choices."*
· **Verbatim, (c) — the conditions, including (c)(3), which is the external-list condition:** *"A member may provide an investment analysis tool …, written reports indicating the results generated by such tool and related retail communications only if the tool, written report or related retail communication: (1) describes the criteria and methodology used, including the investment analysis tool's limitations and key assumptions; (2) explains that results may vary with each use and over time; (3) **if applicable, describes the universe of investments considered in the analysis, explains how the tool determines which securities to select, discloses if the tool favors certain securities and, if so, explains the reason for the selectivity, and states that other investments not considered may have characteristics similar or superior to those being analyzed**; and (4) displays the following additional disclosure: 'IMPORTANT: The projections or other information generated by [name of investment analysis tool] regarding the likelihood of various investment outcomes are hypothetical in nature, do not reflect actual investment results and are not guarantees of future results.'"*
· **Verbatim, .01:** *"Rule 2210(d)(1)(F) does not prohibit, and this Rule does not apply to, **hypothetical illustrations of mathematical principles that do not predict or project the performance of an investment or investment strategy.**"*
· **Verbatim, .04:** *"a member's compliance with this Rule does not mean that the member is acting in conformity with other applicable laws and rules."*
· **Establishes:** the **only** operative US rule located that regulates reference and illustrative material inside an interactive tool, and it does so by **disclosure**, not prohibition. Note .01: a hypothetical illustration of a mathematical principle is outside the rule entirely — that is what a book's worked example is.
· **Supports** limb (b) (illustration ≠ projection) and provides the closest located template for limb (c) — (c)(3) is the disclosure regime for a tool whose universe comes from somewhere.
· **Relevance: 4**

### G3 · NASD Notice to Members 01-23, "Online Suitability" (Mar. 18, 2001) — `[NEW]`
· https://www.finra.org/rules-guidance/notices/01-23 · NASD Regulation Policy Statement, filed with the SEC 19 March 2001 and immediately effective under Exchange Act §19(b)(3)(A) and Rule 19b-4(f)(1)
· **Status caveat, and it matters:** the Policy Statement construes **NASD Rule 2310**, which was superseded by FINRA Rule 2111 (effective 2012). **Whether the staff regards 01-23's examples as continuing guidance under Rule 2111 could not be confirmed in this pass** — FINRA's Regulatory Notice 12-25 page returned HTTP 429 on three attempts, including through WebFetch. ◇ on continued applicability.
· **Verbatim (the test):** *"An important factor in this regard is whether—given its **content, context, and manner of presentation**— a particular communication from a broker/dealer to a customer reasonably would be viewed as a **'call to action,'** or suggestion that the customer engage in a securities transaction."*
· **Verbatim (outside "recommendation" — the customer-directed tool):** *"A member has a search engine on its Web Site that enables customers to sort through the data available about the performance of a broad range of stocks and mutual funds, company fundamentals, and industry sectors. The data is not limited, for instance, to, and does not favor, securities in which the member makes a market or has made a 'buy' recommendation. **Customers use and direct this tool on their own.**"*
· **Verbatim (outside "recommendation" — and this is the externally-supplied-universe example, directly on limb (c)):** *"A member provides research tools on its Web Site that allow customers to screen through a wide universe of securities (e.g., all exchange-listed and Nasdaq securities) **or an externally recognized group of securities (e.g., certain indexes)** and to request lists of securities that meet broad, objective criteria … The member does not impose limits on the manner in which the research tool searches through a wide universe of securities, nor does it control the generation of the list in order to favor certain securities. … Similarly, **the algorithms for these tools are not programmed to produce lists of securities based on subjective factors that the member has created or developed** …"*
· **Verbatim (outside "recommendation" — customer-scoped alerts):** *"A member allows customers to subscribe to e-mails or other electronic communications that alert customers to news affecting the securities in the customer's portfolio or on the customer's 'watch list' … **The customer selects the scope of the information that the firm will send to him or her.**"*
· **Verbatim (adverse — disclaimers):** *"**A member cannot avoid or discharge its suitability obligation through a disclaimer where the particular communication reasonably would be viewed as a 'recommendation' given its content, context, and presentation.** NASD Regulation, however, encourages members to include on their Web Sites … clear explanations of the use and limitations of tools offered on those sites."*
· **Verbatim (adverse — software does not change the analysis):** *"The member should perform this review **regardless of whether the decision to send the information is made by a representative employed by the member or by a computer software program used by the member.**"*
· **Verbatim (adverse — influence):** *"Members should be aware that **the degree to which the communication reasonably would influence an investor to trade a particular security or group of securities**—[either] through the context or manner of presentation or the language used in the communication—may be considered in determining whether a 'recommendation' is being made."*
· **Establishes:** the fullest located articulation of the boundary between **a tool the user directs** and **a recommendation**. Three of its four "outside" examples share one feature: **the member supplied no subjective factor of its own** — the same formulation as ◇ *Wilson & Associates* (1988) inside *Datastream*.
· **Supports** limb (c) unusually directly: **screening against "an externally recognized group of securities"** is given as an example of what is *outside* "recommendation," provided the member does not limit or favour.
· **Undercuts** limb (b) on three counts: content/context/**manner of presentation** is the test; a disclaimer cannot cure; and it being a software program that made the decision changes nothing.
· **Relevance: 4** (discounted for domain and for the ◇ status question)

---

# S4 adverse register

Threat 1–5, then whether the frozen configuration distinguishes.

**1. *Keimer v. Buena Vista Books*, 75 Cal. App. 4th at 1229-32 — the same investment figure changes legal character when it moves from the text onto another surface. Threat: 5 (limb (b)).**
**Partially distinguishes, and not on the reasoning.** The court expressly rejected "protection travels with the content from the book." The frozen configuration's available distinctions are that the number is true, is reproduced verbatim, and appears on an onboarding surface rather than a promotional one — and that *Keimer* was applying California consumer-protection law, not any securities statute. Those are real. But **the proposition the frozen configuration needs — "the book's example beside the field is the same thing as the book on the shelf" — is the exact proposition *Keimer* declined to accept.** ◇ *Lacoff* holds the other way on identical facts and is unretrieved.

**2. Commission Guidance on the Use of Company Web Sites, 73 FR at 45870-71 — attribution turns on context, source-confusion precautions and "the layout of the screen"; embedding within the document is "always" adoption; a disclaimer does not insulate. Threat: 5 (limb (b)), 2 (limb (c)).**
**Distinguishes on domain only.** This is 10b-5 attribution for issuers, and the "always adopting" rule is confined to documents required to be filed or delivered. But its operative variables — screen layout, selectivity of what is displayed, what the company says about it — **are precisely the variables limb (b) changes, and they all move the wrong way when a single example is placed beside a single field.** On limb (c) the same release runs the other way: direct fetch with no hosting, no framing, no selection and no mirror is the lowest-attribution configuration the release contemplates.

**3. IA-5653 at 20-22 — "(i) whether the adviser has explicitly or implicitly endorsed or approved the information after its publication (adoption) or (ii) the extent to which the adviser has involved itself in the preparation of the information (entanglement)"; the adopter "is liable for such third-party content … just as it would be liable for content it produced itself." Threat: 4 (limb (b)), 4 (limb (a) from the member's side).**
**Distinguishes on predicate, not on substance.** The rule's addressee is a registered or required-to-be-registered adviser, and its subject is advertising. But the doctrine as stated has no internal limit: selecting a third party's number and placing it where it will be acted on is textbook implicit approval. Note both halves cut: it also means **a member who types a value owns it as author** — which is the only federal support located for the member-authorship premise, and it exists in order to impose liability, not to relieve anyone.

**4. *SEC v. Terry's Tips*, 409 F. Supp. 2d at 530-32, with *United States v. Elliott*, 62 F.3d at 1310 — advising on the choice among options, and on when to switch, is the advisory act. Threat: 5 (both limbs).**
**Distinguishes only while nothing and nobody guides the selection.** *Terry's Tips* is explicit that the **menu of nine was not the problem** — the court said publication alone would have been excluded. **The line runs at:** (i) telling a member which value to enter or when to change it; (ii) separate compensation for that telling; (iii) execution the member does not see first. A worked example labelled as the book's own calculation stays on the safe side. **A worked example that functions as "the number to put here," or any support answer to "what should I enter?", crosses it — and no design property of the field prevents a human from crossing it in a support channel.**

**5. ◇ *Butcher & Singer, Inc.* (pub. avail. Jan. 2, 1987), as described inside *Datastream* — staff **declined** no-action where data was highly selective and *"the report was apparently intended to provide the brokerage customer with [a] basis for evaluating whether to hold or sell existing or to purchase different securities."* Threat: 4 (limb (b)).**
**Does not cleanly distinguish.** Reference text placed beside an input field is, by placement, intended to give the member a basis for deciding. The available distinctions are that the frozen configuration's reference text concerns *policy parameters*, not *which securities to hold or sell*, and that it is not per-portfolio. Both are genuine and neither has been tested. ◇: the letter itself was not retrieved; the description is counsel's, published by the SEC alongside the staff response.

**6. NASD NTM 01-23 — "content, context, and manner of presentation"; "call to action"; a disclaimer cannot discharge the obligation; the analysis is the same whether a person or "a computer software program" made the decision. Threat: 3 (limb (b)).**
**Distinguishes on domain** (broker-dealer suitability, not adviser status) **and on the same page it distinguishes in the frozen configuration's favour** — customer-directed tools and screening against "an externally recognized group of securities" are given as examples *outside* "recommendation." It is adverse only on the disclaimer point and on "software does not change the analysis." ◇ on whether it survives Rule 2111.

**7. *Winter v. G.P. Putnam's Sons*, 938 F.2d at 1036 — "Computer software that fails to yield the result for which it was designed may be another [product]"; the chart is a product, the how-to book is "pure thought and expression." Threat: 3 (limb (b)).**
**Does not distinguish.** The one federal appellate authority located that puts a book and a software tool side by side **puts them on opposite sides of the line.** This is not a securities holding and it is dictum on the software half — but it is direct authority against the premise that the book and the product are the same object with the same protections.

**8. *William O'Neil & Co. v. Validea.com*, 202 F. Supp. 2d at 1116 — the author's complaint that the product "misappl[ied] Plaintiffs' methods … to produce recommendations stronger than those Plaintiffs would issue" and created "the false impression that Plaintiffs authorized and/or contributed to" it. Threat: 3 (limb (b)).**
**Distinguishes on the claims as pleaded** (they were dismissed for want of alleged scienter) **and on the securities point** (no adviser-status theory was raised by anyone). It does not distinguish on the risk it reveals: **naming a published source beside a field invites an implied-endorsement claim from that source**, and that claim is enforced by the author, not by the Commission.

**9. IM Guidance Update 2017-02 at 7 — client selection of a non-recommended option does not discharge the provider. Threat: 3 (limb (b)), 2 (limb (a)).**
**Distinguishes on the guidance's own predicate.** Every sentence assumes a provider that has already generated a recommendation for the client to depart from. **Empty fields with no preset generate nothing to depart from.** The guidance is also staff-level, addressed to registered discretionary managers. It remains adverse against any design that ships a suggested value.

**10. *Datastream*'s three-part information test — information must be *"not organized or presented in [a] manner which suggests the purchase[,] holding or sale of any security."* Threat: 4 (all limbs).**
**Does not distinguish for the engine's output.** It is largely inert for Track 4 itself: an onboarding field for a position-sizing percentage is not information about a security. **But it is directly live for limb (c)** — a curated monthly securities universe is by construction "highly selective," which fails the test's second prong.

**11. IA-6050 at 14-15 — the Commission is re-examining information providers' reliance on the publisher's exclusion. Threat: 3 (limb (c), curator side).**
**Does not distinguish.** The frozen configuration is smaller than an index provider and structurally identical on the point being probed: a third party compiles a monthly securities list, members invest according to it, money changes hands. Scored 3 rather than 5 only because the file has produced no Commission action in four years.

**12. §208(d), 15 U.S.C. §80b-8(d) — indirect action. Threat: 3 (limb (c)).**
**Distinguishes only if the direct fetch is functionally real.** The distinguishing question is whether the member's runtime genuinely fetches from the publisher, or whether the arrangement is nominal. **P6's negative finding stands: no reported decision applies §208(d) to anything resembling this. Untested in both directions.**

---

# Direct answers

### Is member entry after reading a published example authorship in any authority?

**No. Not in any authority located, in either direction.** No statute, rule, Commission release, staff letter or reported federal decision was found that treats "who typed the value" as bearing on §202(a)(11) status. The nearest textual hooks are:

- ***Datastream*** **factor 2**, *"the degree to which the users themselves perform the calculations"* — a **spectrum**, and one that asks about **performing the analysis**, not about **entering a value**. Typing a number the book already computed is not performing the calculation, and no authority addresses that gap.
- ***Datastream*** **factor 4**, *"whether the calculations or models are based on traditional or standard calculations"* — the one factor on which *being published* affirmatively helps. The letter chain accepted both public-domain formulae and proprietary ones, and ◇ *EJV Partners/UniVu* accepted models *"generally available and widely used formulae taught in business schools and published in finance textbooks"* alongside models *"designed by the customer."*
- ◇ ***Wilson & Associates*** — *"as long as the information provider has built no subjective factors into the formulae or computations the provision of those tools does not constitute investment advice."* **An empty field contains no built-in judgment. This is the best-fitting located sentence, and it is a 1988 staff position reported inside a 1993 letter.**

**That is the whole of it.** These are staff-level, fact-bound, expressly non-binding, and directed at institutional users. The authorship question is not asked anywhere.

### Does a number copied from a publication carry the publisher's advice into the product?

**No located authority says it does, and the located authority pointing the other way is stronger than the silence.**

- ***Lowe*** protects the publisher's status. It says nothing about the reader. There is no travelling doctrine in it.
- ***First Equity***, 869 F.2d at 179: *"the user should bear the risk of failing to verify the accuracy of a summary in the absence of proof of a knowing misstatement."* A federal court of appeals allocating the consequences of acting on a published securities number **to the person who acted on it**.
- ***Winter***, 938 F.2d at 1036-37: *"the defendants have no duty to investigate the accuracy of the contents of the books it publishes."* Readers who acted, and were hospitalised, had no claim.
- ◇ ***Gutter*** and ◇ ***Gale*** (via *First Equity* at 179): publishers of a financial newspaper and of an investment advisory newsletter **not liable** to subscribers who acted.
- ***O'Neil v. Validea.com***: when a product actually did reproduce and apply a named author's published investment method, **nobody pleaded adviser status.** The claims were right of publicity, false endorsement and unfair competition, and they were dismissed for want of alleged scienter.

**The one qualification, and it is not about advice — it is about attribution.** ***O'Neil*** shows the live risk running the *opposite* way: the author of the published example may claim the product **misapplied his method** and **falsely implied his endorsement**. That is a private claim by the publisher against the product, not the publisher's regulatory status arriving inside the product.

**Reverse direction, asked and answered:** the only located case in which a publisher of investment content was held answerable for the numbers is ***Keimer*** — and there the number was on the **book's own cover, promoting the book, and false**. Where the number was true and inside the text, every located authority protects the publisher.

### Does the example sitting beside the field differ from the book existing separately?

**In the material located, yes — and the authority on this point is adverse to the frozen configuration.** This is the weakest limb of Track 4.

- ***Keimer***, 75 Cal. App. 4th at 1231-32, rejected in terms the argument the frozen configuration needs: *"if a book's content is noncommercial and entitled to First Amendment protection, then material taken from that content and used in advertising is also entitled to full First Amendment protection."* The court held the identical figures were **commercial speech on the cover** and fully protected **in the text**.
- **The 2008 Web Sites Release** makes the attribution question turn on *"the layout of the screen,"* on *"the degree to which a company is making a selective choice to hyperlink to a specific piece of third-party information,"* and on *"what the company says about the hyperlink."* Placing one example beside one field is a selective choice about layout. And *"we do not view a disclaimer alone as sufficient to insulate."*
- ***Winter*** puts the book and the software tool on **opposite sides** of the product/expression line.
- **NTM 01-23** makes the test *"content, context, and manner of presentation,"* and says a disclaimer cannot cure, and that a software program making the decision changes nothing.

**Supporting material exists but is thinner:** ◇ ***Lacoff*** (*"states a fact made by the authors in the text; it is not about the Book as a product"*) is the only located authority that says the number does **not** change character by relocation — and it is a trial-level state decision, in acknowledged conflict with *Keimer*, known here only through a federal parenthetical, **unretrieved**. **FINRA Rule 2111.03(a) and (d)** are operative rule text excluding *"general financial and investment information"* and *"interactive investment materials that incorporate the above"* from "recommendation" — but the exclusion is for **general** information, and a specific number for a specific field is not general. **FINRA Rule 2214.01** excludes *"hypothetical illustrations of mathematical principles"* — which is exactly what a worked example is.

**Where the design pressure actually sits, stated plainly:** the located authorities do not care that the product did not fill the field. They care about **selectivity of what is displayed, the layout that places it, and what the product says about why it is there.** The variables that move the analysis are all presentation variables, and the frozen configuration's answer to each of them is a design choice that has not yet been made.

### Does direct external fetch move anything?

**Two sub-answers, and they differ.**

**(i) For the curator: no.** P6's finding — that curating a monthly universe for compensation is the largest single exposure of the party that curates it — **is untouched.** That finding rests on IA-6050 at 14-15 (the Commission openly re-examining exactly this), on *Missouri Innovation*'s representation (iii) (*"all issuers with a Form U-7 on file … will be included"*), and on *Datastream*'s "not highly selective" prong. **Nothing in any located authority makes the curator's exposure depend on the transport path by which the list reaches a reader.** A monthly selection is a selection whether it is downloaded, mailed, or read aloud.

**(ii) For the enabler — the runtime publisher and the Company: nothing located attaches exposure to them, and direct fetch is the most favourable shape available.** Four items support this, and none of them is a holding:
- ***Missouri Innovation***'s non-involvement representations — *"MICI wil[l] not be involved with any communications, discussions, or negotiations … wil[l] not match … wil[l] not act as agent for any par[ty] … wil[l] not have access to or p[o]ssession of fu[n]ds, securities, or propert[i]es"* — earned a pass from **two** divisions.
- ◇ ***EJV Partners/UniVu*** — *"UniVu will act merely as [a] passive communications conduit as evidenced by its lack of control over the dispatching and contents of the messages"* — where customers transmitted their own proprietary financial models to other customers through the system.
- ***Datastream***'s own conduit representation and its *"no direct or indirect financial interest in whether [a] subscriber uses Datastream data … to purchase[,] sell or hold [a] particular security."*
- **NTM 01-23**: screening against *"an externally recognized group of securities"* is given as an example **outside** "recommendation," provided the member does not limit the universe or program subjective factors of its own.
- **The 2008 Release**, read for limb (c) rather than limb (b): its escalating factors are context, source-confusion and framing. A fetch the member's own runtime initiates from the publisher's own endpoint, with no mirror, cache, relay, re-serve or frame, and reaching the engine only through the member's configuration, sits at the **bottom** of every one of those factors.

**But say what this is: an absence, not a holding.** IA-6050 asks about the **provider's** status and nowhere suggests that a deliverer or enabler acquires status by enabling. **No authority was located on a party that enables access to a third party's securities list without hosting, mirroring or selecting it.** *Missouri Innovation* is the closest, and it is about a party that **compiled** a listing — the opposite side of the transaction. And §208(d) remains untested in both directions.

### Does no-preset onboarding close P6 finding 1?

**No. Plainly no — and the reason is the one the commission anticipated.**

P6 finding 1 was: *no authority distinguishes authoring an investment rule from adopting one authored by someone else, as a determinant of §202(a)(11) status.* The frozen configuration responds by **removing adoption**. But removing one term from an undecided comparison does not decide it. **P6 finding 1 is a finding about the absence of authority. Nothing in this pass created any.** The register still contains no statute, rule, release, letter or decision in which who authored a rule bore on who is an investment adviser.

Three further points, and each of them matters:

1. **The one authority that uses the word still runs the wrong way.** IA-5653 at 21: *"An adviser is liable for such third-party content under the marketing rule just as it would be liable for content it produced itself."* Removing adoption from the product does not change what that sentence says. If anything, no-preset onboarding **relies on** the adoption doctrine's premise — that the person who takes on content owns it as author — while that doctrine exists to attach liability, never to detach it.

2. **What no-preset onboarding does close is narrower and real.** It removes the fact pattern that IM Guidance 2017-02 at 7 addresses (a client selecting away from a provider's recommendation — there is no recommendation), and it moves the configuration to the favourable end of *Datastream* factor 2 and squarely into ◇ *Wilson & Associates*' *"no subjective factors built into the formulae"*. Those are gains on **factors**, not on **status**, and every one of them is staff-level and non-binding.

3. **It opens something P6 did not have to consider.** By putting the published example *inside the product beside the field*, the configuration substitutes a **presentation** question for an **adoption** question — and the presentation question has adverse authority (*Keimer*, the 2008 Release, NTM 01-23, *Winter*) where the adoption question had none. **On the located material, no-preset onboarding trades a documented absence of authority for a documented adverse line.** That is not obviously a good trade, and the register should not be read as saying it is.

---

# Negative findings — explicit

1. **No authority, in either direction, on whether a value entered by a person after reading a published example is that person's authorship for §202(a)(11).** The distinction is absent from the material. **P6 finding 1 is confirmed, not closed.**

2. **No case or SEC action located in which a user-entered parameter derived from a published source was attributed back to the source.** This was the core search of limb (a). Queries run and returning zero or entirely off-point results are listed in the search log. **The absence is the finding.**

3. **No authority located holding a publisher responsible for what readers did with published securities numbers.** Every located authority on the point runs the other way (*First Equity*, *Winter*, ◇ *Gutter*, ◇ *Gale*). The single exception, *Keimer*, concerned **false figures on the publisher's own product packaging**, not readers' use of true figures in the text.

4. **No authority located on help text, tooltips, worked examples or "see chapter 4" pointers inside a securities product as distinct from a recommendation.** CourtListener returns **zero** for every formulation tried. The nearest operative material is FINRA rule text and a 2001 NASD policy statement — **both addressed to broker-dealers, neither a §202(a)(11) instrument, and no authority located carries either into the Advisers Act.**

5. **No authority located on a party that enables access to a third party's securities list without hosting, mirroring or selecting it.** *Missouri Innovation* addresses the compiler. ◇ *EJV Partners/UniVu* and *Datastream* address passive conduits for third-party content but not for securities selections. **Gap.**

6. **No adviser-status theory has ever been pleaded, so far as located, against a product that implemented a published author's investment methodology.** *O'Neil v. Validea.com* is the one located case on those facts and the theories were right of publicity, false endorsement and unfair competition.

7. **No Commission action on IA-6050 in four years.** P6's Federal Register verification stands: the file remains an open request for comment. Anything resting on the model- or index-provider analogy rests on an open file.

8. **The two federal rulemakings that would have touched this are formally dead** (Outsourcing; Predictive Data Analytics — withdrawn 17 June 2025, 90 FR 25531). Do not cite either as a Commission position.

9. **No staff comfort is obtainable.** *Missouri Innovation* (1995): *"we wil[l] no longer respond to requests for interpretive or no-action letters in th[i]s area unless they present novel or unusual issues."* *Zurl* (1995): the staff *"generally declines to express an opinion whether a person qualifies for the exclusion."*

10. **No propositions carried from secondary sources.** Nothing in this register rests on a memo, treatise or commentary. Every proposition is quoted from a primary source or is marked ◇ with the primary source that quotes it.

### ◇ list — requiring primary verification before any brief relies on them

| Item | Why ◇ | Verified through |
|---|---|---|
| *Lacoff v. Buena Vista Publishing*, 183 Misc. 2d 600 (2000) | Text not retrieved: CourtListener opinion endpoint 401; public page returns 202/0 bytes (Cloudflare); `static.case.law/misc-2d/183` 404 | Parenthetical holding quoted verbatim in *O'Neil v. Validea.com*, 202 F. Supp. 2d at 1121 |
| *EJV Partners, L.P. / UniVu System* (Dec. 7, 1992) | Letter not retrieved; P6 recorded `noaction/1992/ejvpartners120792.pdf` as 404 | Described at length in the incoming letter published inside *Datastream*; cited in the staff response's nn.1, 4 |
| *Wilson & Associates* (May 25, 1988) | Pre-1990 letter; not on sec.gov | Incoming letter inside *Datastream* |
| *Butcher & Singer, Inc.* (Jan. 2, 1987) | Pre-1990 letter; not on sec.gov | Incoming letter inside *Datastream*; cited in the staff response's n.1 |
| *Media General Financial Services* (July 20, 1992); *Investex* (Apr. 1990); *Charles Street Securities* (Feb. 27, 1987); *Wallace & Lin* (Apr. 15, 1985); *Jack Sonner* (Mar. 11, 1983); *Executive Asset Management* (Dec. 15, 1988); *Computer Language Research* (Dec. 26, 1985); *Innosearch* (Sept. 12, 1985); *Syrus Associates* (Oct. 23, 1981); *Advantage Investors* (May 13, 1985) | Cited by name inside *Datastream*; not individually retrieved | *Datastream* nn.1, 4 |
| Use of Electronic Media, Rel. 34-42728, 65 FR 25843 (2000) | sec.gov path 302s to a navigation shell with no release body | Quoted verbatim in the 2008 Release n.78 and IA-5653 n.47 |
| *In re BB&T Securities, LLC*, IA-4506 (2016) | Order not retrieved | Characterised verbatim in IA-5653 n.45 |
| *Gutter v. Dow Jones*, 22 Ohio St. 3d 286 (1986); *Gale v. Value Line*, 640 F. Supp. 967 (D.R.I. 1986) | Not read in full | Holdings quoted in *First Equity*, 869 F.2d at 179 |
| NASD NTM 01-23 — continued applicability under FINRA Rule 2111 | FINRA RN 12-25 returned HTTP 429 on three attempts including via WebFetch | Not resolved |
| IA-1092, 52 FR 38400 (1987) | P6: not retrievable from a primary host | *Elliott*, 62 F.3d at 1310; IA-6050 n.25 |

---

# Search log

**Date:** 5 September 2026. **Analyst constraint, and it is the same one P6 hit:** the session's **WebSearch budget was exhausted (200/200)** before Track 4 began. **No search-engine queries were run.** All retrieval was by direct fetch of primary hosts plus the CourtListener v4 search API and the Federal Register API. **No product, project, methodology, person or domain name was used in any query.** No subagents were spawned.

### Access notes (reproducible)

| Host | Behaviour | Workaround |
|---|---|---|
| `sec.gov` | Declared UA `LegalResearch/1.0 (uri@permanentbeta.dk)` returns documents normally. `/rules/interp/2008/33-8933.pdf` and `/rules/interp/2008/34-58288.pdf` **301** → `/files/rules/interp/2008/…` → **404 with a 53,435-byte block page** (P6's ~53 KB signature; **check SIZE, not status**) | Federal Register API |
| `sec.gov` legacy no-action paths | `/divisions/investment/noaction/<year>/…` still resolve (Datastream 1.78 MB, Missouri 1.60 MB, both 200) | — |
| `sec.gov` `/rules/interp/34-42728.htm` | **302** → `/rule-release/34-42728`, 200, 57,943 bytes — **navigation shell only, no release body** | ◇ via quoting releases |
| `federalregister.gov` API | Works with `--compressed`. `conditions[term]` + `conditions[agencies][]=securities-and-exchange-commission` located 73 FR 45862 as doc **E8-18148**; `raw_text_url` gave 120,448 bytes of clean text | — |
| `courtlistener.com/api/rest/v4/search/?type=o` | Open, **but rate-limited at 5 requests/minute** — exceeding it returns `{"detail":"Request was throttled…"}` which parses as a null count, not an error. **Sleep ≥14 s between queries.** `/api/rest/v4/opinions/<id>/` returns **401** | — |
| `courtlistener.com/opinion/<id>/<slug>/` | Returns **202 with zero bytes** to curl and to WebFetch (Cloudflare challenge) | none found |
| `static.case.law` | Star-pagination anchors are `<a … class="page-label">*NNN</a>` — a regex anchored on `<a class="page-label"` **fails**; the class is not the first attribute. Volume coverage is incomplete: `misc-2d/137` and `misc-2d/183` both **404** | Use `<a [^>]*class="page-label"` |
| `finra.org` | Rulebook and Notice pages return 200 on first fetch, then **HTTP 429** for several minutes. WebFetch hits the same 429 | Retrieve one page at a time; RN 12-25 unresolved |
| `pdftotext -layout` on the SEC's 1993 and 1995 scans | Produces lossy punctuation (OCR) but intact wording. `pdftotext` on IA-5653 and IM-2017-02 is clean | Read for wording, not punctuation |

### Primary documents fetched and read in full (all 200 unless noted)

*Datastream International* (15 Mar 1993, 1.78 MB scan) · *Missouri Innovation Center* (17 Oct 1995, 1.60 MB scan) · IA-5653 (2.48 MB; adoption section at internal pp. 20-22) · IM Guidance Update 2017-02 (client-directed section at p. 7) · **Commission Guidance on the Use of Company Web Sites, 73 FR 45862 (7 Aug 2008), full Federal Register text — new in this pass** · *Lowe v. SEC*, 472 U.S. 181 · *SEC v. Terry's Tips*, 409 F. Supp. 2d 526 · *United States v. Elliott*, 62 F.3d 1304 · **First Equity Corp. of Fla. v. Standard & Poor's Corp., 869 F.2d 175 — new** · **Winter v. G.P. Putnam's Sons, 938 F.2d 1033 — new** · **William O'Neil & Co. v. Validea.com Inc., 202 F. Supp. 2d 1113 — new** · **Keimer v. Buena Vista Books, Inc., 75 Cal. App. 4th 1220 — new** · **FINRA Rule 2111 incl. Supplementary Material .03 — new** · **FINRA Rule 2214 — new** · **NASD Notice to Members 01-23 — new** · *Gutter v. Dow Jones*, 22 Ohio St. 3d 286 (retrieved, not quoted beyond the *First Equity* parenthetical).

### CourtListener queries run (all `type=o`), with counts

| Query | Count | Yield |
|---|---|---|
| `"investment adviser" publisher liability subscriber relied newsletter figures` | 8 | *Battoo*; *Terry's Tips*; *Park*; *Blavin* ×2; *Lowe* — **none on point** |
| `"Advisers Act" "published" "book" "parameters" investor entered` | 8 | *Bolla*; *Taucher*; *Washington Investment Network*; *Bayerische Landesbank* — **none on point** |
| `publisher "no duty" reader relied information published erroneous financial` | 379 | too broad; no securities-status hit in top results |
| `"First Equity" "Standard & Poor" prospectus description error` | 1 | miss; case located instead via the `869 F.2d 175` query |
| `"Winter" "G.P. Putnam" mushrooms encyclopedia` | **0** | located instead via *O'Neil*, 202 F. Supp. 2d at 1121 |
| `"Dow Jones" subscriber erroneous report duty publisher` | 47 | ***Gutter v. Dow Jones***; *Daniel v. Dow Jones*; *Brandt v. Weather Channel* |
| `"aggregate information" publisher liability "readers" invest reliance securities` | **0** | negative |
| `"Standard & Poor" 869 F.2d 175 publisher` | 11 | ***Lacoff v. Buena Vista Publishing*** and *Rosenstein v. S&P* surfaced here |
| `"Lacoff" "Buena Vista Publishing"` | 3 | *Lacoff*; *Verizon Directories*; ***William O'Neil & Co. v. Validea.com*** |
| `"Buena Vista Publishing" "Foolish Four"` | **0** | negative |
| `"investment adviser" "software" "user enters" parameters "own" settings registration` | **0** | **negative — core question, limb (a)** |
| `"Advisers Act" "the user selects" criteria screening tool recommendation` | **0** | **negative — core question, limb (b)** |
| `"trading system" author "followed" "instructions" purchaser attributed liability commodity` | 8 | *Heffernan*; *Sterling Trading*; *Taucher* — none on attribution to a published source |
| `"investment adviser" "book" strategy implemented software user attributed author` | 2 | *SEC v. Patel*; *Enright v. Asclepius* — **neither on point** |
| `"Advisers Act" "attributed to" author published strategy user applied` | 2 | *Enright*; *U.S. v. Philip Morris* — **negative** |
| `"investment adviser" tooltip "help text" "worked example" recommendation` | **0** | **negative — limb (b)** |
| `"investment adviser" "input field" default value software client entered` | **0** | **negative — limb (b)** |
| `"third-party list" securities "does not endorse" enabling access adviser status` | **0** | **negative — limb (c)** |
| `hyperlink adoption entanglement securities endorsed third-party information` | 4 | *Newton v. LePage*; *Wersal v. Sexton* — **none securities; the doctrine lives only in SEC releases** |
| `"Advisers Act" publisher subscriber "acted on" advice product liability` | 7 | SEC enforcement matters; *Wall Street Publishing*; **none on point** |

### Federal Register API queries run

`"Use of Company Web Sites"` scoped to SEC — **9 results**, yielding **73 FR 45862, doc E8-18148** (the 2008 interpretive release), full text retrieved. P6's `"S7-18-22"` (4 results) and `"Withdrawal of Proposed Regulatory Actions"` (1 result, 90 FR 25531) were **not re-run**; those status verifications are carried forward from P6 as of 3 September 2026.

### Paths probed and failed (documented so they are not retried)

`sec.gov/rules/interp/2008/33-8933.pdf` (301→404, 53 KB block) · `sec.gov/files/rules/interp/2008/33-8933.pdf` (404, 53 KB block) · `sec.gov/rules/interp/2008/34-58288.pdf` (301, empty) · `sec.gov/rules/interp/34-42728.pdf` (301, empty) · `federalregister.gov/documents/full_text/text/2008/08/07/E8-17954.txt` (404 — wrong document number) · `static.case.law/misc-2d/183/html/0600-01.html` (404) · `static.case.law/misc-2d/137/html/0094-01.html` (404) · `static.case.law/misc-2d/183/CasesMetadata.json` (404) · `courtlistener.com/opinion/6345153/…` (202, 0 bytes) · `courtlistener.com/api/rest/v4/opinions/6213804/` (401) · `finra.org/sites/default/files/NoticeDocument/p003882.pdf` (404) and `p003895.pdf` (200, 0 bytes) · `finra.org/rules-guidance/notices/12-25` (429 ×3, including via WebFetch).


---

<br>

# S5 · TRACK 5 — The Schwab 1996 letter and the broker-facilitation residue

I have everything. Writing the register.

Research complete. Report follows.

---

# S5 — Track 5 authority register
**The Schwab 1996 letter and the broker-facilitation residue**

**Headline:** The Charles Schwab & Co. no-action letter of 27 November 1996 — P6's "single highest-value unread document" — **was recovered in full and read in full**. All 14 pages (staff outgoing letter pp. 1–4; Schwab's incoming request of 25 November 1996, pp. 1–10) were rendered at 300 dpi and read by vision. No OCR binary existed on the machine; the vision route worked cleanly on every page. Schwab's current Trader API terms were also recovered in full, defeating P6's negative retrieval finding. The solicitation residue survives, and *Neovest* ¶14 contains a sentence P6 did not quote that makes it worse, not better.

Method note: primary sources only, all fetched today, 5 September 2026. Access notes in the search log. No product, project, methodology, person or domain name of the commissioning project appears in any query string.

---

## Part 1 — Register entries

### The standard caveat governing the whole no-action class

Quoted once, from the 1996 Schwab letter itself (outgoing letter, pp. 3–4), and applying to **every** staff no-action letter in this register:

> "This letter represents the views of the staff of the Division based on our understanding of the proposed arrangements between Schwab and the online services as discussed in your letter. **This staff position concerns enforcement action only and does not represent a legal conclusion regarding the applicability of the statutory or regulatory provisions of the federal securities laws.** Moreover, this position is based solely on the representations that you have made, and **any different facts or conditions might require a different response.**"

Cognate formulations appear in *Neptune Networks* ("subject to modification or revocation by the Staff at any time"), *GlobalTec/CommandTRADE*, *S3*, *Loffa*, *Roadshow Broadcast* and *Investment Archive*. Every citation below to a staff letter carries this caveat.

---

### S5-01 · *Charles Schwab & Co., Inc.*, SEC No-Action Letter (Nov. 27, 1996) — **FULL TEXT RECOVERED** `[SUPERSEDES P6 negative finding S6b-11 and P6 S2d entry 1]`
- **Citation / URL:** Div. of Market Regulation staff no-action letter, Re: *Online Services*, 27 Nov. 1996; 1996 WL 762999. Signed **Richard R. Lindsey, Director**. To Scott W. Campbell, VP & Assoc. GC, Charles Schwab & Co. Responds to Campbell's letter of 25 Nov. 1996 to Catherine McGuire, Chief Counsel, Div. of Market Regulation. · https://www.sec.gov/Archives/edgar/vprr/9617/96179662.pdf (525,616 B, 14 pp., scanned image, no text layer)
- **Type:** Staff no-action letter, Exchange Act §15(a) · **Date:** 27 November 1996
- **Status:** **Good; live and not withdrawn.** Verified today on the Division of Trading and Markets legacy no-action index (https://www.sec.gov/divisions/marketreg/mr-noaction.shtml, 571,308 B), listed as "Charles Schwab & Co., Inc., November 27, 1996" under the heading **"Broker-Dealer Registration – Other"**, adjacent to *Swiss American Securities/Streetline* (2002), *1st Global* (2001) and *Attkisson, Carter & Akers* (1998). The index marks withdrawals expressly (11 "withdraw" occurrences elsewhere on the page); there is none against this entry. **`[CORRECTS P6]`** — P6 recorded it under "Clerical and Ministerial Activities"; the live index places it under "Broker-Dealer Registration – Other."
- **Verbatim: see Limb A below for the complete operative conditions.**
- **What it establishes:** The only located §15(a) staff letter involving a **retail** broker-dealer and third-party technology in the customer order path. Three unregistered technology intermediaries (America Online, CompuServe, Microsoft) could transmit retail customers' securities orders to a registered broker, be **paid by the broker a nominal flat fee per order transmitted**, and coordinate marketing with the broker, without registering — subject to nine express conditions.
- **Supports / undercuts:** **Supports** the transmission-is-not-effecting shape more directly than any other letter located, and is the only one whose population is retail. **Undercuts** in three specific ways: (a) the intermediary's role is confined to "routing messages" — the frozen runtime does materially more; (b) the whole arrangement is a **written agreement with the broker**, under which the broker "will take responsibility for orders once they have been received" and is responsible for the intermediary's marketing accuracy — the frozen configuration has no broker relationship at all; (c) staff footnote 1 expressly flags the adverse content point (below).
- **Relevance:** 5
- **Application note:** The letter is the closest structural analogue in the register and the frozen configuration satisfies most of its conditions *a fortiori* on compensation — but the letter's architecture presupposes a contract between the broker and the intermediary, which the frozen configuration does not have.

### S5-02 · Staff footnote 1 to the 1996 Schwab letter — **the adverse flag on content** `[NEW]`
- **Citation / URL:** Same letter, outgoing p. 3 n.1
- **Verbatim:** "Although not the subject of this request, **a broker-dealer conducting business over the Internet should consider the extent to which it may be responsible for content provided by a third party.** *See, e.g.*, Securities Exchange Act Release No. 21383 (October 9, 1984), in which the Commission noted that a suitability '**issue is raised to the extent that a broker-dealer or related entity provides investors research and analysis amounting to recommendations of individual securities through the computer brokerage system or accompanying data bases.**' *See also* 'Ask the Analysts about Electronic Communications,' NASD Regulatory & Compliance Alert (April 1996), in which the National Association of Securities Dealers, Inc. noted that a member must not link to a WEB site that the member knows contains misleading information about the member's products or services."
- **Establishes:** The staff, in the very letter that permits order transmission by an unregistered intermediary, reserved the question whether third-party content "amounting to recommendations of individual securities" delivered through the brokerage channel raises a suitability problem — and located that problem on **the broker-dealer**, not the intermediary.
- **Supports / undercuts:** **Neutral as to the intermediary's own registration status** (which is what it was allowed to do). **Undercuts** any claim that the 1996 letter blesses a channel that carries security-specific output: the staff flagged exactly that as an open question, and pinned it on the broker.
- **Relevance:** 4
- **Application note:** A signal that names an instrument and a side travels through the broker's channel; this footnote is the earliest primary-source location of the question whether that is "research and analysis amounting to recommendations of individual securities." It does not answer it.

### S5-03 · Incoming letter fn.4 — third-party-prepared content is permitted where the preparer is responsible `[NEW]`
- **Citation / URL:** Same document, incoming letter p. 6 n.4
- **Verbatim:** "**The Online Services may make available to their subscribers and users market data and investment research prepared by others, including Schwab or its affiliates, that are responsible for such content.**"
- **Establishes:** The condition barring the intermediary from recommending or endorsing specific securities was expressly qualified: the intermediary may **make available** securities research prepared by a third party who is responsible for it. The line drawn is authorship/responsibility, not display.
- **Supports / undercuts:** **Supports** a design in which reference material authored and owned by a third party is displayed by, but not authored by, the software layer.
- **Relevance:** 4
- **Application note:** The nearest primary-source support located for displaying third-party-authored reference material inside a tool without the display becoming the displayer's recommendation. It is a footnote in an incoming letter, adopted by the staff only by the general "based on these facts and representations" formula.

### S5-04 · *Quick America Corporation*, SEC No-Action Letter (available June 18, 1993) — **operative condition recovered** `[SUPERSEDES P6 S2d Part 5, which recorded it as text-unavailable with a date conflict]`
- **Citation / URL:** Quoted verbatim in the Schwab incoming letter, 25 Nov. 1996, at p. 9 (SEC-published document, same PDF). Schwab's counsel dates it "available June 18, 1993"; the *Neptune* incoming letter (2020) dates it June 28, 1993. **Date conflict unresolved; the 1996 primary quotation is the earlier and more proximate source.** The letter's own text remains unretrieved (pre-2002; not on sec.gov).
- **Type:** Staff no-action letter, §15 · **Date:** June 1993
- **Verbatim (the staff condition, as quoted by Schwab's counsel):** "**Quick will not charge any fees that are related, directly or indirectly, to the value of the completed customer transactions facilitated by the use of the Quick Order Management System.**"
- **Verbatim (facts, incoming p. 9):** "Quick America Corporation ('Quick') had developed an online service which offered both a market data system and an order management system. Quick's customers and broker-dealers would pay periodic monthly fees for their use of the system. In particular, Quick customers would be charged a flat fee for its server and for each workstation. The monthly server and workstation fees would vary according to the level of services provided. Participating broker-dealers would be charged for their lines into Quick's host computer." Footnote 9: "The Order Management System **enabled users to route orders to participating brokers, monitor the status of orders, receive electronic order reports from brokers and perform transaction analysis.**"
- **Establishes:** A 1993 §15(a) no-action position for a non-broker-dealer operating a combined market-data-plus-order-management system for a **periodic monthly fee**, conditioned only on the fee not being related directly or indirectly to completed transaction value. This is the earliest located primary statement of the flat-periodic-fee condition, and the earliest located letter whose facts include an order management system.
- **Supports / undercuts:** **Supports.** A recurring flat periodic fee, not tied to transaction value, was accepted in 1993 for a system that routed orders to participating brokers.
- **Relevance:** 4
- **Application note:** The nearest primary-source analogue to a flat monthly membership fee. Qualified: recovered only through a 1996 quotation, and its own conditions beyond compensation are unknown.

### S5-05 · Exchange Act Rel. No. 34-21383, *Computerized Brokerage Systems* (Oct. 9, 1984), n.4 — **the Commission's express reservation** `[NEW]`
- **Citation / URL:** Quoted verbatim in the Schwab incoming letter, p. 8, citing fn. 4 of the 1984 Release
- **Verbatim (the Commission's words, as quoted):** the Commission said it was "**not addressing … whether a company that provides communication and information services and transmits orders between investors and broker-dealers for a transaction related fee would be required to register as a broker-dealer under Section 15(a) of the [Exchange] Act.**"
- **Verbatim (Schwab's counsel's own framing, p. 8):** "**The Commission and its Staff have questioned in the past whether transaction-related fees payable to an online service may give rise to broker-dealer registration requirements but have not had occasion to offer definitive guidance to the industry.**"
- **Establishes:** At Commission level, the question whether a communications-and-information company that transmits orders between investors and brokers for a transaction-related fee must register was **expressly left open in 1984**, and — on the record located across P6 and P7 — has never been closed at Commission level except adversely, in *Neovest* (2021).
- **Supports / undercuts:** **Undercuts** any claim that the Commission has ever blessed this shape. **Supports** the narrower point that the Commission has never held the contrary either. The gap is 42 years old.
- **Relevance:** 4
- **Application note:** This is the cleanest statement in the register of what the whole no-action line rests on: an unanswered Commission question, answered only by staff, and then answered the other way by enforcement.

### S5-06 · *Swiss American Securities / Streetline*'s gloss on the 1996 Schwab letter — **now testable against the actual text** `[SUPERSEDES P6 S2d entry 2's treatment]`
- **Citation / URL:** SEC Div. of Market Regulation no-action letter, 28 May 2002 · https://www.sec.gov/divisions/marketreg/mr-noaction/swissamer052802.htm
- **Verbatim (staff, 2002):** "To date, the Division has issued only one letter granting no-action relief for an Internet-related service that would be paid per-order fees without registering as a broker-dealer. In the Division's letter regarding Charles Schwab & Co. (November 27, 1996), the Division granted no-action relief to **broad-based Internet service providers that would not specifically direct their operations toward the securities industry**, and that would **take a passive role toward the interaction between brokerages and their customers, other than routing messages**. Those Internet service providers could receive a **nominal** flat fee for each order transmitted. The proposed activities of SASI and Streetline go beyond the activities contemplated by the Schwab letter … and **Streetline's $1 per-order compensation is more than 'nominal.'**"
- **NEW FINDING on comparing the gloss to the 1996 text:** the 1996 letter contains **no** condition that the intermediary be "broad-based," **no** condition that it "not specifically direct its operations toward the securities industry," and **no** definition of "nominal." The words "passive" and "broad-based" do not appear in it. What the 1996 letter does contain is the "other than by routing messages" carve-out, condition (iv) (no accepting orders, no broker-dealer selection, no routing to markets), and a per-order flat fee described only as "nominal." **The 2002 staff letter therefore adds two conditions to the 1996 letter that are not in its text, and fixes "nominal" below $1 per order.**
- **Supports / undercuts:** **Cuts both ways, and the adverse edge is sharper.** It **supports** the conclusion that the 1996 letter on its own terms is broader than the staff later described. It **undercuts** any reliance on the 1996 letter as written, because the staff's own controlling gloss is the narrower one, and a firm "specifically directing its operations toward the securities industry" is expressly outside it. The frozen configuration is, on any reading, a product directed at the securities industry.
- **Relevance:** 5
- **Application note:** The single most important qualification on Limb A. The 1996 text is favourable; the staff's own 2002 reading of that text is not, and the 2002 reading is the later staff position.

### S5-07 · *Neovest, Inc.*, Rel. 34-92285 (June 29, 2021) — ¶14 in full, **including the sentence P6 did not quote** `[SUPERSEDES P6 S6b entry L2-04's partial quotation of ¶14]`
- **Citation / URL:** Exchange Act Rel. No. 34-92285, Admin. Proc. File No. 3-20375 (June 29, 2021) · https://www.sec.gov/files/litigation/admin/2021/34-92285.pdf (258,920 B, text layer present, re-fetched and re-extracted today)
- **Type:** Commission order (settled, §§15(b), 21C) · **Status:** final; consented to without admitting or denying; $2,750,000 penalty, censure, cease-and-desist; one Commissioner dissented
- **Verbatim (¶3, the two operative findings):** "Nonetheless, Neovest continued to operate as a broker-dealer by engaging in the business of effecting securities transactions for others through **the receipt of transaction-based compensation for its OEMS services and its solicitation of customers for those services.**"
- **Verbatim (heading before ¶14):** "**Neovest's Solicitation Efforts**"
- **Verbatim (¶14, complete):** "Neovest has approximately 550 customers, mostly institutional investors and asset managers, which actively use the OEMS Platform to route their orders to Destination Brokers for execution. Those Destination Brokers paid transaction-based compensation for orders received via the OEMS Platform. Neovest obtained many of these customers, including the Destination Brokers who paid transaction-based compensation, as a result of various sales and marketing efforts, including **direct outreach by Neovest employees at trade shows and industry conferences, direct marketing by Neovest employees, direct marketing by Neovest-licensed resellers, referrals from existing customers and Destination Brokers, and Neovest's own website. Neovest's solicitation efforts were consistent with the company branding itself as an OEMS provider that is independent from any specific executing broker-dealer.**"
- **Establishes:** (i) The conduct the Commission labelled "solicitation" was ordinary commercial marketing of a software product — trade shows, conferences, employee outreach, resellers, referrals and a website. Not one item names a security or a transaction. (ii) **The final sentence is new and adverse.** The Commission tied the solicitation finding to *how the company branded itself* — as an independent software provider. Branding the product as independent software did not negate solicitation; the order recites it as **consistent with** solicitation.
- **Supports / undercuts:** **Undercuts, and more sharply than P6 recorded.** The frozen configuration's marketing rule — market software tools, never a trading/execution/signal service — is a branding position. *Neovest* ¶14 is the only located primary source that addresses a branding position of that kind, and it treats such branding as compatible with, not a defence to, a solicitation finding.
- **Relevance:** 5
- **Application note:** "We market software, not a service" is the position ¶14's last sentence describes and does not credit. This is the strongest adverse sentence located in the whole track.

### S5-08 · *Neptune Networks Ltd.* incoming letter, p. 8 ¶d — **the nearest authority on the marketing/soliciting line** `[CARRIED FROM P6 · verified independently today]`
- **Citation / URL:** Incoming letter, Covington & Burling (Bruce C. Bennett) to Emily Westerberg Russell, Chief Counsel, Div. of Trading and Markets, **March 3, 2020** · https://www.sec.gov/divisions/marketreg/mr-noaction/2020/neptune03042020-in.pdf (736,783 B; pp. 2–10 are scans without a text layer; p. 8 rendered at 200 dpi and read by vision today)
- **Type:** Incoming no-action request, published by the SEC; relied on and quoted by Commissioner Peirce in *Neovest* dissent n.15 · **Status:** relief granted March 4, 2020; expressly revocable
- **Verbatim (p. 8 ¶d, complete, verified):** "**NeptuneFI will not solicit securities transactions** – NeptuneFI markets the System as a secure, password-protected data connectivity and communication system. As described above, utilization costs for participants are fixed, based on category of participant – there is no transaction-based compensation. **While NeptuneFI solicits market participants to utilize the System, NeptuneFI does not solicit securities transactions as part of its marketing of the System. It instead markets a public utility-style function that benefits interactions between buy-side and sell-side participants in the institutional fixed income market.**"
- **Establishes:** This is **the only primary-source formulation located anywhere in the register that expressly distinguishes soliciting customers for a software system from soliciting securities transactions** — and the staff granted relief on a record containing it.
- **Supports / undercuts:** **Supports** — and it is the best support that exists on Limb C. Heavily qualified: (a) it is a **representation by counsel**, not a staff holding; the staff's outgoing letter adopts it only through the general "based on the facts and representations" formula and "without necessarily concurring in your conclusions and analysis"; (b) the distinction is bundled with facts the frozen configuration cannot match — end-to-end encryption making the operator **incapable** of seeing content, a not-for-profit utility posture, and institutions-only access; (c) it stands against *Neovest*, where the Commission found solicitation on marketing that never mentioned a security.
- **Relevance:** 5
- **Application note:** Quotable, and it is the sentence the argument needs. It is a private party's characterisation that the staff did not contradict, not a staff or Commission statement, and *Neovest* is the Commission going the other way two years later.

### S5-09 · Schwab Trader API Developer Program Agreement (May 2023) — **§13, Prohibition on Brokerage Activities** `[NEW · SUPERSEDES P6 S6a §A4/§B5 negative retrieval findings]`
- **Citation / URL:** "SCHWAB TRADER API DEVELOPER PROGRAM AGREEMENT, May 2023," served identically at https://developer.schwab.com/products/trader-api--individual/terms-and-conditions/trader-api-terms-and-conditions and https://developer.schwab.com/products/trader-api--commercial/terms-and-conditions/trader-api-terms-and-conditions
- **Type:** Broker's contract terms (not law) · **Date on the face of the document:** May 2023 · **Status:** live, retrieved 5 Sep 2026
- **Verbatim (§13, complete):** "**PROHIBITION ON BROKERAGE ACTIVITIES.** You understand, acknowledge, and agree, that, as between us and you, Schwab shall be solely responsible for all brokerage activities for Schwab Clients (i.e., End Users), which includes, but is not limited to the following: opening, approving, maintaining, administering, or closing third party customer brokerage accounts; **soliciting, processing, or facilitating securities transactions relating to customer brokerage accounts;** extending credit to any customer for the purpose of purchasing securities through, or carrying securities; answering client inquiries with respect to their Schwab accounts or transactions; **accepting securities orders, selecting among broker-dealers or routing orders to markets for execution;** handling funds or securities of End Users, or effecting clearance or settlement of End Users' securities trades or other securities transaction; resolving or attempting to resolve any problems, discrepancies or disputes involving End Users' accounts or related transactions; **receiving compensation based on securities transactions or provision of investment advice;** describing Schwab's services, products, or benefits; **or recommending or endorsing specific securities or investment strategies.** You agree that you will not engage in any of the above referenced brokerage activities or any other activities requiring registration as a broker-dealer in connection with your Application's interactions with Schwab's API and the resulting functionality made available to End Users."
- **Establishes:** **Schwab's 2023 developer contract is a near-verbatim restatement of the 1996 no-action letter's conditions**, transposed from an agreement between Schwab and three online services into a click-through agreement with every third-party developer. Compare 1996 condition 2(iv) ("will not accept orders, select among broker-dealers or route orders for customers to markets for execution") with §13 ("accepting securities orders, selecting among broker-dealers or routing orders to markets for execution"); 1996 2(i) with §13's "recommending or endorsing specific securities"; 1996 2(ii) ("solicitation of trades") with §13's "soliciting … securities transactions"; 1996 2(v) and 2(vi) with §13's custody and credit clauses.
- **Supports / undercuts:** **Supports** the frozen configuration on structure: Schwab expressly contemplates third-party software in the retail order path and allocates every brokerage function to itself. **Undercuts** in one respect the register must not soften: §13 bars the developer from "**recommending or endorsing specific securities or investment strategies**" — a contractual constraint on any output that names an instrument and a side, and one the broker may enforce without any regulator's involvement.
- **Relevance:** 5
- **Application note:** The 1996 letter's conditions are now live contract terms binding every Schwab API developer. Compliance with the 1996 letter and compliance with the Schwab developer agreement are, on this text, substantially the same exercise.

### S5-10 · Schwab Trader API Developer Program Agreement §§2, 3, 5, 6.1, 6.2, 9.2 — registration, distribution and credentials `[NEW]`
- **Same citation.** **Verbatim (§2):** "To participate in the Developer Program and obtain access to the Resources, you must accept this Agreement and register for a Developer Account … **If you intend to participate in the Developer Program to develop Applications for distribution (for free or for a fee) to third parties (hereinafter referred to as 'Commercial Applications'), your Developer Account must register under the account type 'Company.' Commercial Applications are subject to additional registration steps and review.**"
- **Verbatim (§6.1):** "**Your Developer Account is solely for your own use** in connection with your participation in the Developer Program. The user identification and password for your Developer Account ('Credentials') **are personal in nature and may be used only by you** … **You may not and agree that you will not provide any third party with the right to access your Developer Account or Credentials** … **Any transactions completed through your Developer Account will be deemed to have been completed by you.**"
- **Verbatim (§9.2):** "**All API Keys assigned to you are unique to you and are solely for your own use** in connection with your participation in the Developer Program. **You may not provide any third party with access to any API Key** … any transactions completed through your API Key will be deemed to have been completed by you."
- **Verbatim (§3):** "You are solely responsible for ensuring that your Applications operate as intended, and that your Applications **and all sales, marketing, and technical materials related to the Applications** comply with … all applicable laws, rules, and regulations related to **securities, broker-dealers, investment advisers** … **Schwab has no obligation to verify whether the activities undertaken by you and/or your Applications require registration under Applicable Law.**"
- **Verbatim (§5(x)):** developers may not "**systematic[ally] copy[] or duplicat[e] orders of other traders for a given user (i.e., automatic mirroring of trades across different users).**"
- **Verbatim (§5(u), (v)):** may not "develop any software or other technology for accessing or using the Schwab Platforms in a way other than through the APIs"; may not "use automated scripts or processes to collect information from or otherwise interact with the Schwab Platforms **other than your Applications**."
- **Establishes:** (a) The developer **must register** with Schwab and be approved; approval is discretionary. (b) An **Individual Developer** account covers the developer's own use; **any distribution to third parties, free or paid, requires the "Company" account type and additional review**. (c) API keys and developer credentials are **per-person and non-transferable**; any transaction under them is deemed the account-holder's. (d) Schwab expressly disclaims any duty to check whether the developer's activity requires registration, and expressly extends the developer's compliance duty to its **marketing materials**. (e) Copy-trading / cross-user order mirroring is contractually barred.
- **Supports / undercuts:** **Supports** the credential architecture: per-member, local, non-shared credentials are what Schwab requires, and a Company-level or app-level trading credential would breach §6.1/§9.2 on its face. **Supports** the no-sharing-between-members rule: §5(x) forbids exactly the architecture the frozen configuration has already excluded. **Undercuts** the free-open-source-runtime posture in one respect: a runtime **distributed to other members** is a "Commercial Application" under §2 — distribution "for free" is expressly included — so the publisher, not the member, is the party who must hold a Company registration and pass Schwab's review.
- **Relevance:** 5
- **Application note:** The distribution trigger is free-or-paid distribution, not payment. A freely distributed open-source runtime installed by members against their own Schwab accounts falls on the Commercial side of §2 as written.

### S5-11 · Schwab "Trader API – Individual" and "Trader API – Commercial" product descriptions `[NEW · SUPERSEDES P6 S6a Charles Schwab section]`
- **Citation / URL:** https://developer.schwab.com/products/trader-api--individual and /trader-api--commercial (client-rendered Angular; text obtained by driving a real browser, 5 Sep 2026)
- **Verbatim (Individual):** "**The Trader API – Individual offering allows you to create your own application for your own self-directed Brokerage account to accomplish your trading needs.** Features available below will include getting authentication, market data, getting account information, getting order/transaction information, **order entry, and an order preview screen.** … **Can be used by: Individual Developers**"
- **Verbatim (Commercial):** "**The Trader API – Commercial offering allows you to create an application to distribute to other brokerage account holders to use besides yourself so other users can use your application to accomplish their trading needs.** Features available below will include getting authentication, market data, getting account information, getting order/transaction information, order entry, and an order preview screen. … **Can be used by: Retail Clients**"
- **Verbatim (About the Individual Developer Role, https://developer.schwab.com/user-guides/individual-developer/about-individual-developer-role):** "Becoming an Individual Developer will allow you access to Specific API Product(s) which will allow you create apps that will access to your existing Schwab brokerage account(s) … **As an individual Developer, you are limited to creating a single App** … **A Schwab brokerage account is required to access Trader APIs**"
- **NEW FINDING — one agreement, not two:** the Individual and Commercial terms-and-conditions pages, which P6 identified as separate documents from the sitemap, **serve byte-identical text**: both render the same "Schwab Trader API Developer Program Agreement, May 2023." Verified by diffing the two extracted texts (identical apart from the tab-context footer). **The Individual/Commercial split is a registration and entitlement distinction under §2 and §6.2 of one agreement, not two different contracts.**
- **Establishes:** Schwab publicly and expressly offers a retail account holder programmatic **order entry** against the holder's own self-directed brokerage account, and separately offers a route for distributing an application to other account holders under commercial registration.
- **Supports / undercuts:** **Supports** decisively on the factual premise that a member's own broker publishes a retail API supporting order entry under the member's own credentials.
- **Relevance:** 5

### S5-12 · Schwab *Pricing Guide for Individual Investors* (April 2026) — **express fee parity for API-originated trades** `[NEW]`
- **Citation / URL:** https://www.schwab.com/legal/schwab-pricing-guide-for-individual-investors · **Date on the face of the document:** "April 2026 — Pricing information in this guide supersedes prior versions."
- **Verbatim (definition):** "**Online Trades —Trades placed through Schwab.com** (which includes international.schwab.com, schwab.com.hk, and the Chinese-language version of Schwab.com), **thinkorswim® desktop, thinkorswim® web, thinkorswim® mobile, Schwab Mobile, Schwab software, or Schwab APIs.**"
- **Verbatim (schedule):** "U.S. Exchange-Listed Securities per Executed Trade* **Online $0** · Automated Phone $5 · Broker-Assisted $25. *Limited to National Market System (NMS) securities, excluding standardized options." "U.S. Over-the-Counter (OTC) Market Securities Commissions per Executed Trade† Online $6.95 · Automated Phone: Online commission plus $5 · Broker-Assisted: Online commission plus $25."
- **Establishes:** Schwab's own current published pricing **expressly defines a trade placed through Schwab APIs as an "Online Trade,"** identical in price to a trade placed on the web surface. There is no API surcharge and no API-specific commission tier.
- **Supports / undercuts:** **Supports.** Fee parity means the software layer confers no pricing advantage or disadvantage, and generates no differential economics that could be characterised as transaction-linked.
- **Relevance:** 4
- **Application note:** The clearest of the four brokers whose API fee treatment has now been established (Public and Webull, per P6; Schwab, here). No adverse pricing fact.

### S5-13 · FINRA Regulatory Notice 26-15 (July 24, 2026) — **best execution modernization; the interpositioning gap is open** `[NEW]`
- **Citation / URL:** FINRA Regulatory Notice 26-15, "FINRA Requests Comment on Modernizing FINRA's Best Execution Guidance," published 24 July 2026, comment period expires 25 September 2026 · https://www.finra.org/rules-guidance/notices/26-15 (163,434 B, server-rendered)
- **Type:** SRO request for comment · **Status:** open; **not guidance and not a rule**
- **Verbatim:** "Rule 5310 specifically prohibits interpositioning, stating that **no member or person associated with a member shall interject a third party between the member and the best market for the subject security in a manner inconsistent with best execution.** … **Do commenters believe any additional guidance would be helpful with respect to the interpositioning aspects of Rule 5310?**"
- **Verbatim (routing technology):** "Under what circumstances do firms believe an **order-by-order best execution review** is practicable given developments in **order routing technology**?"
- **Establishes:** As of 24 July 2026 FINRA is **asking whether interpositioning guidance is needed** — which is affirmative evidence, in FINRA's own current words, that **no such guidance presently exists**. Nothing in the Notice addresses third-party customer-side software, and the interpositioning prohibition it quotes binds the member, not the third party.
- **Supports / undercuts:** **Supports** the allocation of the duty to the broker and confirms the absence of adverse FINRA guidance. **Flags** that the position may change: the comment period is open until 25 September 2026 and any resulting guidance would be a status-check item.
- **Relevance:** 4

### S5-14 · FINRA Rule 2210 — communications rules reach members only `[NEW]`
- **Citation / URL:** https://www.finra.org/rules-guidance/rulebooks/finra-rules/2210 (retrieved 5 Sep 2026, server-rendered)
- **Verbatim (d)(1)(A):** "**All member communications** must be based on principles of fair dealing and good faith, must be fair and balanced, and must provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry, or service."
- **Verbatim (d)(1)(B):** "**No member** may make any false, exaggerated, unwarranted, promissory or misleading statement or claim in any communication. **No member** may publish, circulate or distribute any communication that the member knows or has reason to know contains any untrue statement of a material fact…"
- **Establishes:** FINRA's communications-with-the-public regime — the natural home for any FINRA rule on how trading software is marketed to retail — takes **"member"** as the subject of every operative sentence. It imposes nothing on, and confers no status on, a non-member software publisher.
- **Supports / undercuts:** **Supports** on the narrow point that no FINRA rule regulates a non-member's marketing of software to retail. **Neutral** on registration. Status note: Regulatory Notice 26-14 (9 July 2026) requests comment on proposed changes to modernize Rule 2210 — status-check before use.
- **Relevance:** 3

### S5-15 · *Charles Schwab & Co.*, Investment Management no-action letters of 1992 and 1997 — **identification negative findings** `[NEW · responds to the coordinator's lead]`
- **1992:** https://www.sec.gov/divisions/investment/noaction/1992/charlesschwabco-052892.pdf (1,176,939 B, 16 pp.). Incoming letter of **28 May 1992** to Thomas Harman, Chief Counsel, **Division of Investment Management**, captioned "**Investment Company Act of 1940, Section 22(d)**."
- **1997:** https://www.sec.gov/divisions/investment/noaction/1997/cschwab070797.pdf (816,247 B, 13 pp.). "RESPONSE OF THE OFFICE OF CHIEF COUNSEL, DIVISION OF INVESTMENT MANAGEMENT … Your letter dated July 1, 1997 requests our concurrence with your interpretation of **Rule 22c-1** under the Investment Company Act of 1940 … whether a registered investment company ('fund') may, in compliance with Rule 22c-1, price an order for the purchase or sale of fund shares based on the fund's net asset value per share ('NAV') next computed after the order is placed with a third party … Charles Schwab & Co., Inc. ('Schwab'), a registered broker-dealer, sponsors The Schwab Mutual Fund Marketplace® and the Schwab Mutual Fund OneSource® Programs."
- **Finding:** **Neither is the letter in the citation chain.** The 1992 letter is an Investment Company Act §22(d) matter on discount-broker mutual fund pricing; the 1997 letter is a Rule 22c-1 forward-pricing matter on the Mutual Fund Marketplace/OneSource programs. Neither concerns Exchange Act §3(a)(4)/§15(a), technology vendors, software, or order transmission. The absence of a 1996 entry from the Investment Management index is explained: the 1996 letter is a **Division of Market Regulation** letter and sits, as expected, on the Trading and Markets index (verified at S5-01).
- **Relevance:** 2 (identification only)
- **Application note:** The coordinator's caution was correct on both points, and the identification question is now closed from the other direction as well: the 1996 letter is the letter, and it has been read in full. A readable substitute is not needed.

---

### Carried forward from P6 in full — the broker-facilitation core `[CARRIED FROM P6 · S6b, unchanged]`

These entries are reproduced so this register stands alone. Each was verified in the P6 run on 3 September 2026; none was disturbed by anything found today.

| # | Citation / URL | Type · date · status | Verbatim key quote (pin-cite) | Establishes | S/U | Rel |
|---|---|---|---|---|---|---|
| **L2-01** | 15 U.S.C. §78c(a)(4)(A) · govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2B-sec78c.htm | Statute · USCODE-2023 · good law | "The term 'broker' means any person engaged in the business of effecting transactions in securities for the account of others." | Two conjunctive elements; no routing/transmitting distinction in the text | Undercuts any textual carve-out | 5 |
| **L2-02** | 15 U.S.C. §78c(a)(4)(B)(i)(V) | Statute · good law | bank employees "perform only clerical or ministerial functions in connection with brokerage transactions … except that bank employees may forward customer funds or securities" | Congress wrote one ministerial carve-out and confined it to banks | **Undercuts** | 4 |
| **L2-03** | 15 U.S.C. §78c(a)(4)(B)(ii)(I) | Statute · good law | "chiefly compensated … on the basis of an administration or annual fee …, a percentage of assets under management, or **a flat or capped per order processing fee equal to not more than the cost incurred by the bank**" | Congress treats a flat cost-recovery per-order fee as distinguishable from brokerage compensation — inside the bank exception only | Supports weakly; undercuts generalisation | 3 |
| **L2-05** | Peirce, *Statement Regarding Neovest, Inc.* (June 29, 2021) · sec.gov/newsroom/speeches-statements/peirce-statement-neovest-062921 | Commissioner dissent · not Commission position | "it fails to explain how and why the particular services Neovest provided—**facilitating the transmission of orders created by customers, including routing instructions, from customers to the customer's own broker**—causes Neovest to effect securities transactions in the accounts of others" · and the adverse hypothetical: "**Would, for example, a retail broker that decided to forgo both commissions and payment for order flow and instead charged its customer-members an annual membership fee be permitted to operate without registering as a broker-dealer?**" | The routing/transmitting distinction exists in an SEC document — but only because the majority did not draw it. fn.14 is the authoritative catalogue of the technology-vendor letter line | Supports rhetorically; **undercuts** as law; membership-fee hypothetical directly adverse | 5 |
| **L2-06** | *GlobalTec Solutions / CommandTRADE*, Dec. 28, 2005 · sec.gov/divisions/marketreg/mr-noaction/commandtrade122805.htm | Staff letter · live on index | conditions: neither will "(iii) be involved in any way with the execution, settlement, or clearance of transactions, including by soliciting, processing, or facilitating transactions in any way (**other than by providing the functionality of order transmission**), or matching orders or **making decisions about routing orders (including decisions regarding the participating broker-dealers to whom orders are sent)**"; "(i) charge fees … based, directly or indirectly, on … the size, value, or occurrence of any securities transactions"; "(vi) recommend the purchase or sale of or otherwise provide investment advice with respect to any particular security"; "(ix) make any recommendation … regarding participating broker-dealers (**other than by providing a list of broker-dealers**)" | Strongest primary location of the transmission/routing line, drawn as an operative condition. Incoming letter records that the platform transmitted orders **automatically** on user-specified parameters | **Supports**; condition (vi) is a live constraint on security-specific output | 5 |
| **L2-07** | *S3 Matching Technologies LP*, July 19, 2012 · sec.gov/divisions/marketreg/mr-noaction/2012/s3-matching-tech-071912.pdf | Staff letter · live | "neither the Company nor the Platform will have discretion over the routing destination of an order, and will not make any decisions on behalf of a Sending Broker to initiate a buy or sell order"; "Platform Participants will be responsible for compliance with Rule 15c3-5"; relief conditioned on "only a customer of the Sending Broker that holds an '**institutional account**' within the meaning of FINRA Rule 4512(c)" | Non-BD may transmit order messages on another party's parameters — but the direct senders had to be institutional | Supports on mechanics; **undercuts** on population | 5 |
| **L2-08** | *Swiss American Securities / Streetline*, May 28, 2002 (see also S5-06) | Staff letter · live | "SASI would exercise control over Streetline … and would assume full responsibility for the operation of the websites and for Streetline's compliance with applicable federal securities laws"; "all facilities, technology, and books and records of Streetline shall be the facilities, technology and books and records of SASI"; "**In essence, Streetline should be invisible to the ultimate users of the websites**"; "SASI also would pay Streetline a per-order messaging fee - presently expected to be $1 per order" | Where the downstream broker's status did real work, it did so because the broker contracted for, controlled, marketed, solely paid, and assumed compliance responsibility for the vendor | **Undercuts** | 5 |
| **L2-09** | *Neptune Networks Ltd.*, Mar. 4, 2020 · sec.gov/divisions/marketreg/mr-noaction/2020/neptune03042020.pdf | Staff letter · revocable | "Based on the facts and representations set forth herein and in your letter, **and without necessarily concurring in your conclusions and analysis** … **This position is subject to modification or revocation by the Staff at any time.**" | Baseline status caveat for the class | Undercuts treating the line as settled | 3 |
| **L2-10** | SEC, *Guide to Broker-Dealer Registration*, §II.A · sec.gov/reportspubs/investor-publications/divisionsmarketregbdguidehtm.html (undated on its face ◇) | Staff guidance | "Do you participate in important parts of a securities transaction, including solicitation, negotiation, or execution…? … Are you otherwise engaged in the business of **effecting or facilitating** securities transactions? … A 'yes' answer to any of these questions indicates that you may need to register as a broker." | The staff's own screen contains no routing/transmitting distinction; "facilitating" is broader than the statute | **Undercuts** | 4 |
| **L2-11** | Staff Statement Regarding Broker-Dealer Registration of Certain User Interfaces … Crypto Asset Securities (Apr. 13, 2026) | Division staff statement · self-sunsets Apr. 2031 | "this statement does not extend to a Covered User Interface Provider that engages in … **or taking or routing orders**"; fn.4: "do not apply to activities involving other securities"; fn.1: "**has no legal force or effect**" | Modern staff architecture closely parallels the frozen layering, yet stops at taking or routing orders | Supports the credential-isolation shape; **undercuts** any reliance | 5 |
| **L2-12** | Rel. 34-90112, 85 FR 64542 (Oct. 13, 2020) — **proposed only, never adopted** · sec.gov/rules/exorders/2020/34-90112.pdf | Commission release (proposal) | "**Solicitation includes efforts to induce a single securities transaction as well as efforts to develop an ongoing securities-business relationship.**" · "the receipt of transaction-based compensation … is **not in itself determinative of broker status**" · quoting Rel. 34-75611, 80 FR at 48976: "'effecting transactions' … **ranging from identifying potential purchasers to settlement and confirmation of a transaction**" | Commission's own current articulation of solicitation and of "effecting" | Supports on compensation; **undercuts** on the breadth of both "effecting" and "solicitation" | 5 |
| **L2-13** | *SEC v. Kramer*, 778 F. Supp. 2d 1320, 1334–35 (M.D. Fla. 2011) · static.case.law/f-supp-2d/778/html/1320-01.html | District court · good law | "'**Merely bringing together the parties to transactions, even those involving the purchase and sale of securities, is not enough**'"; "'regularity of participation in securities transactions at key points in the chain of distribution'"; "**transaction-based compensation is the hallmark of a salesman**" | "Effecting" needs involvement at key points; "engaged in the business" turns on regularity | Supports on "effecting"; **undercuts** on "engaged in the business" | 5 |
| **L2-14** | 17 C.F.R. §242.600 (eCFR versioner API, snapshot 2026-09-01) | Rule · in force | (b)(107) "Trading center means a national securities exchange … or any other broker or dealer that executes orders internally…" | **Negative finding:** Rule 600(b) defines 102 terms and defines neither "route", "routing", "order routing" nor "transmit" | Neutral / negative | 4 |
| **L2-15** | 17 C.F.R. §242.611 | Rule · in force; **amendments proposed 91 FR 36656 (June 17, 2026), not final** | (c) "**The trading center, broker, or dealer responsible for the routing** of an intermarket sweep order shall take reasonable steps…" | Routing duties attach to trading centers, brokers and dealers only | Supports weakly | 3 |
| **L2-16** | 17 C.F.R. §242.606 | Rule · in force | (a)(1) "**Every broker or dealer shall** make publicly available … a report on its routing of non-directed orders…" | Federal routing-transparency duty is the broker's | Supports the allocation | 3 |
| **L2-17** | FINRA Rule 5310 · finra.org/rules-guidance/rulebooks/finra-rules/5310 | SRO rule · in force | (a)(2) "**no member or person associated with a member shall interject a third party between the member and the best market**"; (d) "A member through which an order is channeled and that knowingly is a party to an arrangement whereby the initiating member has not fulfilled its obligations … will also be deemed to have violated this Rule"; SM .04 "arises only when an order is **routed from the broker-dealer to the member** for the purpose of order handling and execution" | Duty runs on members and associated persons only; the interposed third party bears no duty and takes no status | Supports the allocation; **flags** commercial rather than legal exposure | 3 |
| **L3-01** | 17 C.F.R. §240.15c3-5 (eCFR snapshot 2026-09-01); adopted 75 FR 69825 (Nov. 15, 2010); **never amended** | Rule · in force | (a)(1) "'market access' … **as a result of being a member or subscriber of the exchange or alternative trading system**"; (b) "**A broker or dealer with market access, or that provides a customer or any other person with access … shall** establish…"; (d) "**shall be under the direct and exclusive control of the broker or dealer**"; (d)(1) allocation permitted only "to a customer that is a registered broker or dealer"; (d)(2) allocation "shall not relieve" | The rule takes only a broker or dealer as the subject of every operative sentence. **Negative finding:** "sponsored access" is not a defined term in the rule | **Supports** | 5 |
| **L3-02** | Rel. 34-63241, 75 FR 69792 (Nov. 15, 2010) | Adopting release | at 69804–05: "**The Rule would not preclude the customer from having risk management controls that exceed those under the direct and exclusive control of the broker-dealer**—however … the broker-dealer cannot rely on risk management technology that is designed, built, maintained or otherwise under the control of the customer or its affiliates"; "direct responsibility … **belongs with the broker-dealer providing market access, as the regulated entity through which access to the markets is obtained and the party responsible for trading occurring under its MPID**" | Customer-side controls are expressly permitted; the broker simply may not rely on them | **Supports** | 5 |
| **L3-03** | Staff FAQ, Rule 15c3-5 · sec.gov/divisions/marketreg/faq-15c-5-risk-management-controls-bd.htm (undated on its face ◇) | Staff FAQ | Q2: "**If a broker-dealer does not have, or is not providing, market access, Rule 15c3-5 does not apply.**" Q3: "*Does Rule 15c3-5 apply to a broker-dealer that enters orders … solely through another broker-dealer with market access?* **Answer: No.**" | Even a registered BD routing solely through another BD is outside the rule; a fortiori a non-registrant | **Supports** decisively on scope | 5 |
| **L3-04** | *S3 Matching Technologies*, p. 3 | Staff letter | "Platform Participants will be responsible for compliance with Rule 15c3-5 under the Exchange Act, as applicable." | In the one letter where a non-BD platform sat in the order path, the 15c3-5 duty was recorded on the broker-dealer participants | **Supports** | 5 |

### Carried forward from P6 — the technology-vendor letter chain `[CARRIED FROM P6 · S2d]`

| Letter | URL · date · status | Operative verbatim | S/U · Rel |
|---|---|---|---|
| *Loffa Interactive Corp.* | sec.gov/divisions/marketreg/mr-noaction/loffa091203.htm · **Sept. 12, 2003** (P6 corrected the common "Sept. 17" misdate) · live | "**Loffa will not accept or route orders, and will play no role in opening accounts with any broker-dealer.** Also, the communications fees charged by Loffa will not be related, directly or indirectly, to the size or value of any transaction … We also note that Loffa will not keep or maintain books and records required under Rule 17a-3 and 17a-4 … on behalf of broker-dealers." | Supports · 5 |
| *Roadshow Broadcast, LLC* | sec.gov/divisions/marketreg/mr-noaction/2011/roadshowbroadcast050611-15a.pdf · May 6, 2011 · live | neither will "(2) receive compensation … other than a **flat transmission fee** and that such fee will not be made contingent upon the outcome or completion of any securities transaction …; (4) **have any role in effecting securities transactions** …; (6) hold itself out as providing any securities-related services other than transmitting Road Shows" | Supports · 3 |
| *The Investment Archive, LLC* | sec.gov/divisions/marketreg/mr-noaction/2010/investmentarchive051410.pdf · May 14, 2010 · live | relief where a **per-use "per transaction" fee** was charged, on representations that it will not "(ii) **solicit securities transactions**; … (vi) hold itself out as providing any securities-related services other than as expressly set forth in your letter" | Supports; a per-use fee not tied to a securities transaction did not defeat relief · 3 |
| Rule 3b-16(b)(1), Rel. 34-40760 (Dec. 8, 1998) | sec.gov/rules/final/34-40760.txt · in force | an entity is not an exchange "solely because" it "**Routes orders to a national securities exchange, a market operated by a national securities association, or a broker-dealer for execution**"; fn.73 names a third-party order-routing software vendor by function | Supports **by analogy only** — this is the *exchange* definition, not the *broker* definition · 3 |
| *1st Global, Inc.* (May 7, 2001), quoting *Birchtree Financial Services* (Sept. 22, 1998) | sec.gov/divisions/marketreg/mr-noaction/2001/1st-global-050701-15a.pdf | "Absent an exemption, an entity that receives commissions or other transaction-related compensation **in connection with securities-based activities that fall within the definition of 'broker' or 'dealer'** … generally is required to register" | Neutral-to-supporting: the compensation hook is conditioned on the activity already falling within the definition · 3 |
| *Neptune Networks* incoming letter, p. 7 — the fullest current staff-factor recitation | see S5-08 | "Structures prospective securities transactions · Assists a market participant in identifying potential purchasers · Screens potential participants for creditworthiness · **Solicits securities transactions** · Receives transaction-based compensation · Participates in negotiations · Provides valuation or other advice · Handles customer securities or funds · Prepare or sends confirmations · Otherwise regularly participates in securities transactions at key points in the chain of distribution" | The factor is "**solicits securities transactions**" — not "solicits customers for the service" · 5 |
| *Datastream International* | sec.gov/divisions/investment/noaction/1993/datastream-international-031593-202a.pdf · Mar. 15, 1993 · **Division of Investment Management, Advisers Act §202(a)(11)** | "Datastream will act merely as a **passive communications conduit** between these brokerage firms and their customers" | **Relevance to §3(a)(4): 1/5** — citing it for broker status misattributes the holding |

---

## Limb A — the Schwab 1996 letter

### A.1 · Recovery

| Step | Result |
|---|---|
| `curl` the SEC copy at `/Archives/edgar/vprr/9617/96179662.pdf` with a declared UA + contact | HTTP 200, 525,616 B, 14 pp., PDF 1.2, creator "UniSoft Imaging PDF Writer (V3.17)" |
| `pdftotext` | **14 bytes** — confirms P6: no text layer |
| `which tesseract` / `ocrmypdf` | **not found** — no OCR binary on the machine |
| `pdftoppm -r 300 -png -aa yes -aaVector yes` | 14 PNGs, 224 KB–1.44 MB |
| Read all 14 page images by vision | **Complete text recovered, every page legible.** No page required a second pass |

Structure: pages 1–4 are the staff's outgoing letter (Richard R. Lindsey, Director, Division of Market Regulation, 27 Nov. 1996, to Scott W. Campbell). Pages 5–14 are Schwab's incoming request (Campbell to Catherine McGuire, Chief Counsel, 25 Nov. 1996, 10 pp.).

### A.2 · The operative conditions, verbatim

**The request (incoming, p. 1):** relief so that America Online, CompuServe and Microsoft may connect their subscribers to Schwab "**for a nominal, flat, per order fee**" without registering under §15.

**The compensation term (incoming, p. 6; restated by the staff at outgoing p. 3):**

> "Schwab proposes to enter into or modify arrangements with the Online Services pursuant to which **Schwab would pay an Online Service a nominal flat fee for each order transmitted to Schwab**, subject to the conditions listed below. Accordingly, **the amount of the fee paid to an Online Service under the proposed arrangements would not vary depending on the number of shares or the value of the underlying securities comprising a customer order transmitted to Schwab or whether the order results in an executed trade.** The precise fees paid under Schwab's arrangements with a particular Online Service would be negotiable and might vary according to relevant business, technological and service level considerations."

**The conditions (incoming, pp. 6–7), complete and verbatim:**

> "**1. Marketing Materials.** Schwab will review and be responsible for the accuracy of all advertising and sales materials relative to Schwab's financial services that are published by the Online Service. **The Online Service and its employees will be prohibited from describing Schwab's brokerage services to subscribers other than by distributing these materials. All advertising or sales material will clearly indicate that the subscriber or user of an Online Service will be a brokerage customer of Schwab and not the Online Service.**
>
> **2. Limitations on Activities.** Online Services will agree to the following limitations on activities:
>
> (i) **The Online Service will not recommend or endorse specific securities.**[4] Schwab, however, may continue to communicate with its customers and recommend specific securities.
>
> (ii) **Neither the Online Service nor its employees (except with respect to their own accounts) shall take part (other than by routing messages) in the financial services offered by Schwab, including the opening, maintenance, administration, or closing of Schwab accounts, the solicitation of trades,** or provide specialized assistance in resolving problems, discrepancies or disputes involving brokerage accounts or related securities transactions.
>
> (iii) The Online Service will not answer questions or engage in negotiations involving brokerage accounts or related securities transactions. All such inquiries will be directed by the Online Service to the customer support personnel of the broker-dealer involved.
>
> (iv) **The Online Service will not accept orders, select among broker-dealers or route orders for customers to markets for execution. All decisions concerning broker-dealer or market selection will be made by customers or Schwab.**
>
> (v) **The Online Service will not handle customer funds or securities related to securities orders transmitted to Schwab or effect clearance or settlement of customer trades.**[5]
>
> (vi) The Online Service will not extend credit to any customer for the purpose of purchasing securities through, or carrying securities with, Schwab.
>
> **3. Written Agreements.** The arrangements between Schwab and an Online Service will be governed by a written agreement that will set forth the responsibilities of the parties and the compensation to be received by the Online Service. Schwab will provide a copy of the no-action letter Schwab receives from the Staff in response to this request to each Online Service. **In addition to entering into agreements with Online Services, Schwab will have separate brokerage account agreements with subscribers or users of the Online Services who wish to access Schwab brokerage services through electronic media.**"
>
> Footnote 4: "The Online Services may make available to their subscribers and users market data and investment research prepared by others, including Schwab or its affiliates, that are responsible for such content."
> Footnote 5: "An Online Service that is a bank within the meaning of Section 3(a)(6) of the Exchange Act may effect electronic funds transfers to or from Schwab in connection with trade settlement or other transactions."

**The staff's own recitation and grant (outgoing, pp. 2–3):**

> "Schwab will take responsibility for orders once they have been received. Schwab has developed a series of order-entry, verification and acknowledgement screens (which customers can preview as tutorials) that lead the customer through the order-entry process and make clear when an order has been received by Schwab."
>
> "**Neither the online services nor their employees (except with respect to their own accounts) will take part (other than by routing messages) in the financial services offered by Schwab, including the opening, maintenance, administration, or closing of Schwab accounts, or the solicitation of trades…**"
>
> "**The online services will not accept orders, select among broker-dealers or route orders for customers to markets for execution; all decisions concerning broker-dealer or market selection will be made by customers or Schwab.** The online services will not handle customer funds or securities related to securities orders transmitted to Schwab or effect clearance and settlement of customer trades. The online services will not extend credit to any customer for the purpose of purchasing securities through, or carrying securities with, Schwab. Moreover, under the agreements, **Schwab will compensate an online service by paying it a nominal flat fee for each order transmitted to Schwab. The amount of this fee will not vary depending on the number of shares or the value of the underlying securities comprising a customer order transmitted to Schwab, nor will the amount of this fee vary depending upon whether the order results in an executed trade.**"
>
> "**Based on these facts and representations, the staff of the Division of Market Regulation will not recommend enforcement action to the Commission under Section 15(a) of the Exchange Act if Schwab enters into agreements with the online services as discussed in your letter without the online services registering as brokers or dealers under Section 15(b) of the Exchange Act.**"

### A.3 · Condition-by-condition mapping against the frozen configuration

| # | 1996 condition (verbatim short form) | Frozen configuration | Satisfied? | Note |
|---|---|---|---|---|
| **1** | "Schwab will review and be responsible for the accuracy of all advertising and sales materials relative to Schwab's financial services that are published by the Online Service"; the intermediary is "prohibited from describing Schwab's brokerage services … other than by distributing these materials"; all material must state the user "will be a brokerage customer of Schwab and not the Online Service" | Company markets software tools; the broker has no relationship with the Company and reviews nothing | **No — structurally unavailable.** The condition presupposes a broker that reviews the intermediary's materials. There is no broker to do so. Nothing in the configuration *describes* the broker's services, which is the conduct the condition restricts — but the affirmative half (broker review, broker-customer disclosure) cannot be met | Adverse. See Limb C |
| **2(i)** | "will not recommend or endorse specific securities" | The engine emits `{rule_id, rule_version, instrument, side, fired_at, source_id, source_signature}` for a member-authored rule | **Unresolved.** The letter does not define "recommend or endorse," and its footnote 1 (S5-02) flags the cognate question rather than answering it. Whether a condition-met signal naming an instrument and a side is an endorsement is the Track 1 question | Fn.4 (S5-03) supports the *display* of third-party-authored reference material |
| **2(ii)** | may not "take part (**other than by routing messages**) in the financial services offered by Schwab, including the opening, maintenance, administration, or closing of Schwab accounts, **the solicitation of trades**, or provide specialized assistance in resolving problems…" | Runtime **composes** the order (quantity, order type, price band, re-peg, TIF, account) from member policy, mints an authorization record, and exercises narrow price-and-time latitude | **No, on the composition point.** The carve-out is "routing messages." Composing order terms and exercising re-peg latitude is more than routing a message. The account-handling and dispute-assistance limbs **are** satisfied; the solicitation-of-trades limb is satisfied on the face of the design | **The largest single gap in Limb A** |
| **2(iii)** | will not answer questions or negotiate on brokerage accounts | Company answers nothing about the member's brokerage account | **Yes** | |
| **2(iv)** | "will not accept orders, **select among broker-dealers** or **route orders for customers to markets for execution**. All decisions concerning broker-dealer or market selection will be made by customers or Schwab" | No venue selection, no routing, no cross-member netting or batching; one broker per member — the member's own; orders go through that broker's own published retail API | **Yes, cleanly, on venue and broker selection.** Partially on "accept orders": the runtime receives no order from anyone — the member composes and authorises inside the RAPID panel — but the runtime does hold and transmit the order it composed | The condition the configuration satisfies most strongly |
| **2(v)** | will not handle customer funds or securities, or effect clearance or settlement | No custody; broker's statement is final truth about execution | **Yes** | |
| **2(vi)** | will not extend credit for purchasing or carrying securities | No credit | **Yes** | |
| **3** | "governed by a **written agreement** [between Schwab and the Online Service] that will set forth the responsibilities of the parties and the compensation"; Schwab has "separate brokerage account agreements" with the users | No agreement between the Company and any broker; the broker does not know the runtime exists; the member has his own brokerage agreement | **No, on the first limb; yes on the second.** The 1996 architecture is a **tripartite** arrangement. The frozen configuration is bipartite: member↔Company and member↔broker, with no Company↔broker leg | Same structural gap as *Swiss American/Streetline* (L2-08) |
| **Comp.** | "nominal flat fee for each order transmitted," not varying by shares, value, or whether executed — **paid by Schwab to the Online Service** | Flat monthly membership paid **by the member**; nothing per trade, on assets or on performance; **no payment from brokers or issuers**; 20% share to the community/name owner expressly for the name and member relationship | **Yes, *a fortiori*.** The 1996 relief tolerated a per-order fee **paid by the broker**. The frozen configuration has no per-order element and no broker payment at all — it is further from the transaction than the conduct the staff cleared | The strongest point in Limb A |

**Against the frozen configuration's six named conditions:**

| Frozen condition | 1996 letter |
|---|---|
| Member's own credentials | **Silent.** The 1996 letter says nothing about credentials, logins or passwords. Consistent with P6's negative finding across the whole letter line |
| Broker's own published retail API | **Consistent in substance.** The 1996 facts are the 1996 equivalent — a link into the broker's own order-entry screens, and later OFC, "a data format designed to facilitate the transmission across the Internet of financial information instructions between a broker-dealer and an investor using client software" (incoming p. 5). Schwab's own 2023 developer agreement (S5-09) is the modern instrument |
| No Company-level or app-level trading credential | **Silent** in the letter; **expressly required** by Schwab's current §6.1/§9.2 (S5-10) |
| No venue selection, routing, cross-member netting or batching | **Satisfied, and this is the letter's central condition** — 2(iv) |
| No per-trade compensation, no payment from brokers | **Satisfied *a fortiori*** — the letter permitted a flat per-order fee paid by the broker |
| Pre-trade risk control with the broker under Rule 15c3-5 | **Not addressed** (Rule 15c3-5 postdates the letter by 14 years). The 1996 analogue is "**Schwab will take responsibility for orders once they have been received**" (outgoing p. 2) — the same allocation, expressed as responsibility rather than as a rule |

**Net on Limb A.** The 1996 letter is materially more favourable than P6 could know, on the one axis that matters most (compensation) and on venue/routing. It is materially less favourable on two structural axes P6 could not see: the relief runs to an intermediary that does no more than **route messages**, and the whole arrangement is a **written tripartite agreement with the broker**, who reviews the intermediary's marketing and takes responsibility for received orders. The frozen configuration composes orders and has no broker leg. And the staff's own later gloss (S5-06) narrows the letter further, to "broad-based" providers "not specifically direct[ing] their operations toward the securities industry."

---

## Limb B — Schwab Trader API terms

### What was verified

Everything the commission asked for. P6's negative retrieval finding is superseded.

- **Retrieval route.** Plain-UA `curl` to `developer.schwab.com` returns **HTTP 403** (Akamai). A standard browser User-Agent with `Accept`/`Accept-Language` returns **HTTP 200** — this alone recovered the sitemap. The pages themselves are an Angular SPA whose routes resolve only in-app: a cold deep link to the terms URL redirects to `/error`. Terms were obtained by **driving a real browser**: load the product page → click "Terms and Conditions" → click the link inside the modal → the SPA opens the terms in a new tab with the document rendered.
- **Sitemap, current (5 Sep 2026, 706 B).** 32 URLs. Confirms P6's structure and adds the portal-level `/terms-and-conditions`. Both `products/trader-api--individual/...` and `products/trader-api--commercial/...` terms URLs are live.
- **The agreement.** "**SCHWAB TRADER API DEVELOPER PROGRAM AGREEMENT, May 2023**," ~50 KB of text, 22 numbered sections. Quoted at S5-09 and S5-10.
- **One agreement, not two.** The Individual and Commercial terms pages serve **byte-identical text** (verified by diff; the only difference was the tool's own tab-context footer). `[SUPERSEDES the P6 inference from the sitemap that there are two distinct terms documents.]`

### The four questions

**1. May an individual account holder use third-party software against their own account?**
Yes, and Schwab publishes the product for it. "**The Trader API – Individual offering allows you to create your own application for your own self-directed Brokerage account** … order entry, and an order preview screen." "A Schwab brokerage account is required to access Trader APIs." The individual is limited to **one App**.

**2. Must the developer be registered?**
Yes — with Schwab, not with a regulator. §2: "you must accept this Agreement and register for a Developer Account." §6.1: "Approval of your request to establish a Developer Account and your participation in the Developer Program is **at the sole discretion of Schwab**," revocable "at any time and for any reason." Promotion of an app from sandbox to production "may require manual approval from an LOB admin and may take several days."

**3. Does distribution to others require commercial terms?**
Yes, and **"free" counts**. §2: "If you intend to … develop Applications **for distribution (for free or for a fee) to third parties** (hereinafter referred to as 'Commercial Applications'), your Developer Account **must register under the account type 'Company.'** Commercial Applications are subject to additional registration steps and review." §6.2: "Company Profiles allow Schwab to properly identify and validate a business, organization, or legal entity before granting access to protected Resources." The Commercial product's own description: "allows you to create an application to distribute to other brokerage account holders to use besides yourself."

**4. Do fees for API-originated trades differ from the web surface?**
**No — express parity, in Schwab's own current pricing document.** *Pricing Guide for Individual Investors*, April 2026: "**Online Trades — Trades placed through Schwab.com … thinkorswim® desktop, thinkorswim® web, thinkorswim® mobile, Schwab Mobile, Schwab software, or Schwab APIs.**" U.S. exchange-listed per executed trade: **Online $0**; Automated Phone $5; Broker-Assisted $25. No API tier, no API surcharge.

### Three additional Schwab facts the commission did not ask for but that bear on the configuration

- **§13 restates the 1996 letter's conditions as contract.** See S5-09. Including "**recommending or endorsing specific securities or investment strategies**" — a contractual bar on security-specific output that the broker can enforce unilaterally.
- **§5(x) forbids cross-user order mirroring**: "systematic copying or duplicating orders of other traders for a given user (i.e., automatic mirroring of trades across different users)." The frozen configuration's "no sharing between members and no import of another member's settings" rule is on the right side of this, but the clause shows the broker actively polices exactly that boundary.
- **§3 puts marketing inside the compliance perimeter**: the developer is responsible for ensuring that its Applications "**and all sales, marketing, and technical materials related to the Applications**" comply with securities, broker-dealer and investment-adviser law — and "**Schwab has no obligation to verify whether the activities undertaken by you and/or your Applications require registration under Applicable Law.**"

### What was not verified

- **Schwab's client-facing Terms of Use.** `https://www.schwab.com/legal/terms-of-use` returns **HTTP 404** (359,808 B branded 404 page). P6's other candidate paths remain 404 or authorization-gated. **No Schwab clause on unauthorized third-party access, screen-scraping, aggregators or credential sharing on the *client* side was obtained.** This is an explicit gap; the *developer*-side credential clauses (§6.1, §9.2) are now on the record and are strict.
- **The portal-level `/terms-and-conditions` page** (as distinct from the Trader API agreement) was not rendered; it is the same SPA and would need the same browser route.
- **Whether the May 2023 agreement has been amended since.** The document bears "May 2023" on its face and no revision history is published. Date-stamped as retrieved 5 Sep 2026. ◇ on currency.

---

## Limb C — the solicitation residue

### C.1 · What *Neovest* actually found, and why the marketing rule does not answer it

*Neovest* ¶3's two operative findings: "**the receipt of transaction-based compensation for its OEMS services and its solicitation of customers for those services.**" The frozen configuration removes the first cleanly. The second is set out at ¶14 in full at S5-07.

Three features of ¶14 govern the residue:

1. **Every item is ordinary software marketing.** Trade shows, industry conferences, employee outreach, licensed resellers, referrals, own website. Not one names a security, a price, or a transaction. The frozen configuration's marketing plan is drawn from the same list.
2. **The order labels this "solicitation" without any bridging finding.** There is no finding that Neovest solicited a securities transaction, recommended a security, or spoke to any investor about an investment. The order moves from "sales and marketing efforts" to "solicitation of customers for those services" to §15(a) in one step.
3. **`[NEW]` The final sentence forecloses the branding answer.** "Neovest's solicitation efforts were **consistent with the company branding itself as an OEMS provider that is independent from any specific executing broker-dealer.**" The Commission recorded independent-software branding as **congruent with** the solicitation finding. The frozen configuration's rule — market software tools, never a trading, execution or signal service — is a branding position of exactly that kind, and ¶14's last sentence is the only primary-source treatment of such a position located anywhere in the register.

### C.2 · The nearest authority drawing a line short of *Neovest*

**The best line located, and its limits.** *Neptune Networks* incoming letter p. 8 ¶d (S5-08): "**While NeptuneFI solicits market participants to utilize the System, NeptuneFI does not solicit securities transactions as part of its marketing of the System. It instead markets a public utility-style function**…" This is the only primary text in the register that states the distinction in terms. The staff granted relief on a record containing it and did not contradict it. But it is counsel's characterisation, adopted only by the general representations formula and expressly "without necessarily concurring in your conclusions and analysis"; it is bundled with encryption-based incapacity to see order content, a not-for-profit utility posture, and institutions-only access; and *Neovest* went the other way in 2021.

**The structural point across the whole letter line.** In **every** located staff letter, the solicitation condition is addressed to **securities transactions**, never to marketing the product:

- 1996 Schwab, condition 2(ii): the intermediary may not take part in "**the solicitation of trades**" — and the same document expressly contemplates that the intermediary will *market*: it distributes the broker's advertising, places the broker's icon on its navigational menus, coordinates marketing activities, provides sign-on diskettes, and is paid for orders. Marketing the arrangement was not merely tolerated; it was one of the two services the arrangement bought.
- *GlobalTec/CommandTRADE* (iii): "**soliciting**, processing, or facilitating **transactions** in any way (other than by providing the functionality of order transmission)."
- *Swiss American/Streetline*: safeguards "should prevent Streetline from being in a position where it could **solicit securities transactions**, directly or indirectly."
- *The Investment Archive* (ii): will not "**solicit securities transactions**."
- *Roadshow Broadcast* (3): will not "participate in any purchase or sale negotiations."
- *Neptune* factor list: "**Solicits securities transactions**."

**The gap, stated plainly.** The staff line's condition is *do not solicit securities transactions*. *Neovest*'s finding is *solicitation of customers for those services*. **No located authority reconciles the two, and none defines "solicitation of customers for the service."** Commissioner Peirce's dissent is the only primary document that notices the problem, and it is a dissent. The Commission's own broadest articulation runs the other way: Rel. 34-90112 (proposed only) — "**Solicitation includes efforts to induce a single securities transaction as well as efforts to develop an ongoing securities-business relationship**" — and a recurring paid membership is, on its face, an ongoing relationship.

**One favourable structural point from the 1996 letter.** Condition 1 required all advertising to "**clearly indicate that the subscriber or user of an Online Service will be a brokerage customer of Schwab and not the Online Service.**" That is the only located primary-source *cure* for the customer-solicitation problem: a mandatory disclosure, in the marketing itself, that the user's brokerage relationship runs to the broker and not to the software layer. It is a condition the frozen configuration could adopt unilaterally. It does not appear in the frozen configuration as described.

### C.3 · **NEGATIVE FINDING** — no enforcement against retail trading or screening software vendors on registration grounds

**The finding.** Across the searches shown below, **no SEC enforcement action was located against a vendor of retail trading, charting, screening or technical-analysis software on registration grounds** — not under Exchange Act §15(a), not under Advisers Act §203(a). Every action located against a party with such a name is a **fraud** action (offering fraud, misappropriation, Ponzi, market manipulation, accounting fraud) or an **issuer** action (§12(j) revocation for delinquent filings). This absence sits against a large, visible, decades-old US market of subscription charting, screening and technical-analysis products sold directly to retail investors.

**How the searches were run, and their limits.** The SEC's Drupal listing views for Administrative Proceedings and Litigation Releases take an exposed filter named `populate` (confirmed live: `populate=Neovest` returns exactly the 29 June 2021 entry). **Testing established that `populate` matches the *Respondents* field only** — topical strings return "No Results match the chosen filters" even where the subject matter plainly exists (`populate=trading software`, `populate=charting`, `populate=stock screening`, `populate=technical analysis software` all returned zero). The searches were therefore run as an **exhaustive respondent-name sweep** on both listings.

| Listing | `populate=` terms run | Result |
|---|---|---|
| Administrative Proceedings (`/enforcement-litigation/administrative-proceedings`) | `software`, `trading`, `trader`, `chart`, `screen`, `signal`, `indicator`, `analytic`, `algorithm`, `quant`, `technolog` | ~190 respondents returned. `indicator` and `algorithm`: **zero rows**. Every other hit is an accounting-fraud issuer (Check Point, Sage, Paycom, Quantum Corp.), a §12(j) delinquent-filer revocation (Titan Trading Analytics, A La Carte Charts Corp., Unified Signal, Seen On Screen TV), a registered broker-dealer or proprietary trading firm (Latour, Wolverine, Briargate, Simplex, Lightspeed, Group One, Pipeline, OX Trading), or a registered adviser. **No retail software vendor on registration grounds.** |
| Litigation Releases (`/enforcement-litigation/litigation-releases`) | `software`, `trading`, `trader`, `chart`, `screen`, `signal`, `analytic`, `algorithm`, `advisor`, `advisers` | ~130 defendants returned. All fraud: Ponzi schemes, offering frauds, misappropriation, FCPA, accounting. The nearest-named candidates — *Derek J. Slattery and TradeSmart Software RIC Corporation* (LR-25382), *PowerTradersPress.com* (LR-24834/24906), *Spark Trading Group* (LR-24080) — are fraud actions, not registration actions. |
| Targeted verification of the one respondent that looked like a counterexample | *N2K Trading Academy, Inc.*, AP File 3-12170, IA-2479 (Feb. 3, 2006) and IA-2505 (Mar. 31, 2006) · sec.gov/files/litigation/admin/ia-2479-o.pdf | **Not a counterexample.** Verbatim: "ORDER INSTITUTING PUBLIC ADMINISTRATIVE PROCEEDINGS **PURSUANT TO SECTION 203(c)(2)(B)** OF THE INVESTMENT ADVISERS ACT OF 1940." §203(c)(2)(B) is the provision for **denying a pending registration application**; N2K had "filed an application on Form ADV … for registration as an investment adviser," and the ground was a prior Alabama cease-and-desist against its principal. This is a proceeding against a **would-be registrant**, not against an unregistered software vendor. It **reinforces** the negative finding. |
| CourtListener v4 search API (open, no token) | `"trading software" "unregistered broker"`, type=o | **COUNT 0** |

**Limits of the negative, stated honestly.** (a) `populate` matches respondent names only, so an action against a vendor whose corporate name contains none of the eleven terms would not surface; the sweep is exhaustive over the name space searched, not over the subject matter. (b) The AP year archives paginate at 100 rows and were not walked year-by-year. (c) State enforcement was not searched. (d) The accurate statement is therefore: **"no such action was located in the SEC's own Administrative Proceedings and Litigation Releases listings across an eleven-term respondent-name sweep, nor in CourtListener"** — not "none exists."

**Weight.** An absence of enforcement is **evidentiary, not authority**. It shows what the Commission has not done across a large and visible market over three decades. It shows nothing about what the Commission may do. *Neovest* is the single datapoint on the other side, and it is the only one — but it is a Commission order, and it is recent.

### C.4 · FINRA

**No FINRA guidance on third-party trading software marketed to retail was located.** What was established:

- **FINRA Rule 5310** (L2-17, carried from P6). The interpositioning prohibition binds "**no member or person associated with a member**"; §5310(d) reaches "a member through which an order is channeled." Neither imposes any duty on, nor confers any status on, the interposed third party.
- **`[NEW]` FINRA Regulatory Notice 26-15** (24 July 2026, S5-13). FINRA is currently **asking whether interpositioning guidance is needed** — affirmative current evidence, in FINRA's own words, that none exists. Comment period closes 25 September 2026; **status-check item**.
- **`[NEW]` FINRA Rule 2210** (S5-14). Every operative sentence takes "member" as its subject. FINRA's communications regime does not reach a non-member software publisher's marketing.
- **Access negative finding.** FINRA's own site search and its Notices listing filter are **not usable for research**: `/rules-guidance/notices?search=…` and `?search_api_fulltext=…` return the unfiltered listing byte-for-byte (verified by comparing filtered and unfiltered row sets); the site-wide `/search` endpoint is client-rendered and returns only navigation links in HTML. The Notices listing is enumerable at `?page=0…91` but is aggressively rate-limited; a full sweep was attempted and recovered **909 of ~3,700 notice titles** (coverage: 1990–97, 2000–03, 2009–10, 2015–17, 2021–26; gaps at 1998–99, 2004–08, 2011–14, 2018–20). Nothing in the 909 recovered titles addresses third-party trading software marketed to retail; the closest are the day-trading notices (NtM 00-62, 01-26, 02-35; RN 09-65, 24-13, 26-10) and the Log4j alert (RN 21-42). **The FINRA negative is partial and is reported as partial.**
- Individual notices **do** render server-side at `finra.org/rules-guidance/notices/<number>`, and rules at `finra.org/rules-guidance/rulebooks/finra-rules/<number>` — so targeted retrieval works even though search does not.

---

## S5 adverse register

| # | Authority | Threat | Does the frozen configuration distinguish it? |
|---|---|---|---|
| **A1** | ***Neovest***, Rel. 34-92285 ¶14, final sentence: "Neovest's solicitation efforts were **consistent with the company branding itself as an OEMS provider that is independent from any specific executing broker-dealer**" | **5** | **No.** The marketing rule *is* a branding position, and this is the only primary-source treatment of one — recorded as congruent with solicitation, not as a defence. |
| **A2** | ***Neovest*** ¶3 + ¶14 taken together: ordinary software marketing (trade shows, conferences, employees, resellers, referrals, website) held to be "solicitation of customers for those services" and thus part of §15(a) | **5** | **No.** The frozen marketing plan draws from the same list. Compensation is distinguished cleanly; solicitation is not distinguished at all. |
| **A3** | *Swiss American/Streetline* (May 28, 2002) **as gloss on the 1996 letter**: relief in 1996 ran to "**broad-based Internet service providers that would not specifically direct their operations toward the securities industry**," taking "a **passive** role … other than routing messages," for a fee below "nominal" (< $1/order) | **5** | **No.** The gloss adds two conditions absent from the 1996 text, and a product directed at securities investors fails both on any reading. That the conditions are the staff's later invention does not help: it is the staff's own controlling reading of its own letter. |
| **A4** | **The 1996 letter's own carve-out — "other than by routing messages"** and condition 3's requirement of a **written agreement with the broker** | **5** | **No, on both.** The runtime composes order terms and exercises price-and-time latitude, which is more than routing a message; and there is no Company↔broker agreement, no broker review of marketing, no broker assumption of responsibility. The 1996 architecture is tripartite; the frozen one is not. |
| **A5** | Staff Statement on Certain User Interfaces (Apr. 13, 2026): "does not extend to a Covered User Interface Provider that engages in … **or taking or routing orders**"; fn.4 "do not apply to activities involving other securities"; fn.1 "has no legal force or effect"; self-withdraws Apr. 2031 | **5** | **No.** The most recent staff articulation excludes the exact function the runtime performs, in the document that otherwise most resembles the layering. |
| **A6** | Rel. 34-90112, 85 FR 64542 (**proposed only**): "**Solicitation includes … efforts to develop an ongoing securities-business relationship**"; and, quoting Rel. 34-75611, "'effecting transactions' … **ranging from identifying potential purchasers to settlement and confirmation of a transaction**" | **4** | **No.** A recurring paid membership is an ongoing relationship on its face; and a lifecycle-spanning reading of "effecting" leaves no natural gap for order transmission. Definitional, not factual — no fact narrows it. |
| **A7** | **Schwab Trader API Developer Program Agreement §2 + §6.2**: any Application "for distribution (**for free or for a fee**) to third parties" is a Commercial Application requiring "Company" registration and additional review | **4** | **Partially, at best.** Free distribution is expressly caught. A freely distributed open-source runtime installed by members against their own Schwab accounts falls on the Commercial side as written, which puts the *publisher* — not the member — into Schwab's registration and review process. Contractual, not statutory, but it is the broker's own gate. |
| **A8** | **Schwab §13**: the developer will not engage in "**recommending or endorsing specific securities or investment strategies**" — and §3: the developer is responsible for the compliance of "all **sales, marketing**, and technical materials," with Schwab disclaiming any duty to check whether the developer's activities require registration | **4** | **Unresolved.** Whether a condition-met signal naming an instrument and a side is a "recommendation or endorsement of a specific security" is the Track 1 question, and §13 is a live contractual restatement of it that the broker can enforce without any regulator. §3 puts the marketing rule squarely inside the broker's compliance perimeter. |
| **A9** | *Swiss American/Streetline*: "**In essence, Streetline should be invisible to the ultimate users of the websites**"; the broker contracted for, controlled, marketed, solely paid and assumed compliance responsibility for the vendor | **4** | **No.** The one letter where the downstream broker's status did real work required vendor invisibility and broker supervision. A vendor that markets under its own brand, contracts with end users, and is unknown to the broker is outside that template in every particular. |
| **A10** | SEC, *Guide to Broker-Dealer Registration* §II.A: "Do you participate in important parts of a securities transaction, including **solicitation** …? Are you otherwise engaged in the business of effecting **or facilitating** securities transactions? A 'yes' answer to any of these questions indicates that you may need to register" | **4** | **No.** "Facilitating" reaches transmission on its face, and "solicitation" is listed without qualification. This is the first document a regulator opens. |
| **A11** | *SEC v. Kramer*, 778 F. Supp. 2d at 1334–35: "regularity of participation in securities transactions at key points in the chain of distribution" | **3** | **No** on "engaged in the business." A continuously running runtime funded by a recurring membership is regular participation by construction. The weight must be carried by "effecting." |
| **A12** | *S3 Matching Technologies* institutional-account condition (FINRA Rule 4512(c)) and BD-defined routing rules | **3** | **No.** The nearest structural analogue was expressly not extended to retail. The population is retail by design. |
| **A13** | Rel. 34-21383 (Oct. 9, 1984) n.4 — the Commission "not addressing … whether a company that provides communication and information services and transmits orders between investors and broker-dealers for a transaction related fee would be required to register" | **3** | **N/A — this is the shape of the risk, not an adverse holding.** The question has been open at Commission level for 42 years and has been answered only once, adversely, in *Neovest*. |
| **A14** | The whole staff-letter class: "This staff position **concerns enforcement action only and does not represent a legal conclusion** … any different facts or conditions might require a different response" (1996 Schwab, pp. 3–4); "subject to modification or revocation by the Staff at any time" (*Neptune*) | **3** | **No.** *Neovest* demonstrates the class's fragility directly: the Commission brought enforcement in an area the staff had repeatedly settled by letter, and that was the substance of Peirce's complaint. |
| **A15** | FINRA RN 26-15 (July 24, 2026), comment period open to 25 Sep 2026, asking whether **interpositioning** guidance is needed | **2** | **N/A today; a live status risk.** The current absence of FINRA guidance is favourable. FINRA is presently asking whether to create some. |

---

## Negative findings — explicit

1. **The 1996 Schwab letter is fully recoverable and has been recovered.** P6's ◇ on it is discharged. `[SUPERSEDES P6 S6b negative finding #11]`
2. **`[CORRECTS P6]`** The 1996 letter is indexed on the live Trading and Markets no-action index under "**Broker-Dealer Registration – Other**," not "Clerical and Ministerial Activities." No withdrawal notation; the index marks withdrawals expressly elsewhere.
3. **The 1996 letter says nothing about credentials.** No mention of logins, passwords, API keys or credential custody anywhere in its 14 pages. This extends P6's negative finding across the whole letter line: **no located SEC letter, release or staff guidance addresses whose credentials a software vendor uses.**
4. **The 1996 letter contains no "broad-based" and no "not directed toward the securities industry" condition.** Those conditions appear only in the staff's 2002 gloss in *Swiss American/Streetline*. "Nominal" is undefined in the 1996 letter; the 2002 letter fixes it below $1 per order.
5. **The 1996 letter does not address Rule 15c3-5** (which postdates it by 14 years). Its analogue is "Schwab will take responsibility for orders once they have been received."
6. **`[SUPERSEDES P6]` Schwab's Trader API "Individual" and "Commercial" terms are the same document** — the "Schwab Trader API Developer Program Agreement, May 2023." The split is a registration/entitlement distinction under §2 and §6.2, not two contracts.
7. **Schwab's client-facing Terms of Use could not be retrieved.** `/legal/terms-of-use` returns HTTP 404. **No Schwab clause on unauthorized third-party client-side access, screen-scraping, aggregators or credential sharing was obtained.** The developer-side clauses are on the record; the client-side ones are not. `[P6 gap NOT closed]`
8. **No SEC enforcement action against a retail trading, charting, screening or technical-analysis software vendor on registration grounds was located.** Method and limits at C.3. This is the Limb C finding the commission asked to be reported as such.
9. **`[NEW]` The one apparent counterexample is not one.** *N2K Trading Academy* (IA-2479, 2006) is an Advisers Act **§203(c)(2)(B)** proceeding to deny a **pending registration application**, not an action against an unregistered vendor.
10. **No FINRA guidance on third-party trading software marketed to retail was located**, and FINRA's own current request for comment (RN 26-15) confirms that no interpositioning guidance exists. The FINRA notice sweep is **partial** — 909 of ~3,700 titles, with named gaps — and is reported as partial.
11. **FINRA's site search and Notices listing filter do not work for research.** `?search=` and `?search_api_fulltext=` are silently ignored by the Notices listing (verified by byte-comparison of filtered and unfiltered results); `/search` is client-rendered and returns only navigation links.
12. **The SEC listing `populate` filter matches the Respondents field only.** Topical strings return "No Results match the chosen filters" even where the subject matter exists. `[EXTENDS the P6 access note, which established the parameter name but not its scope]`
13. **No 1996 Schwab letter exists in the Investment Management no-action index**, and the two Schwab IM letters that do exist (28 May 1992, Investment Company Act §22(d); 7 July 1997, Rule 22c-1 forward pricing) are **not** the letter in the citation chain and do not concern broker status, technology vendors or order transmission. `[Coordinator lead resolved — a readable substitute is not needed, because the 1996 letter itself has been read.]`
14. **The *Quick America* date conflict is unresolved.** Schwab's counsel (1996): "available June 18, 1993." *Neptune* incoming (2020): "June 28, 1993." The letter's own text remains unretrieved. Its **compensation condition** is now recovered verbatim through the 1996 quotation; its other conditions are unknown.
15. **`[CARRIED FROM P6, unchanged]`** *Evare, LLC* (Nov. 30, 1998), *Broker-to-Broker Networks* (Dec. 1, 2000), *StockPower Inc.* (July 24, 1998), *e-Media, LLC* (Dec. 14, 2000) and *Prescient Markets* (Apr. 2, 2001) exist by SEC-published citation; their texts are not on sec.gov. The Georgetown collection the SEC points to returns HTTP 410 Gone. **`[NEW METHOD NOTE]`** The EDGAR paper-reference archive path `/Archives/edgar/vprr/<YY><NN>/<YYNNNNNN>.pdf` — which is how the 1996 letter is reachable — has no browsable index (`/Archives/edgar/vprr/` is 404), but **letters reachable there are now demonstrably readable end-to-end** by render-and-vision. If an accession number for any of these five can be obtained, the text is recoverable.
16. **◇ Currency of the Schwab agreement.** "May 2023" on its face; no revision history published; retrieved 5 Sep 2026.
17. **◇ The 15c3-5 staff FAQ and the *Guide to Broker-Dealer Registration* bear no revision date.** Carried from P6 unchanged.

---

## Search log

| # | Source / query | Endpoint | Date | Result / access note |
|---|---|---|---|---|
| 1 | Schwab 1996 letter | `sec.gov/Archives/edgar/vprr/9617/96179662.pdf` | 5 Sep 2026 | HTTP 200, 525,616 B, 14 pp. `pdftotext` → 14 B. `which tesseract ocrmypdf` → **not found**. `pdftoppm -r 300 -png -aa yes -aaVector yes` → 14 PNGs. **All 14 read by vision; full text recovered.** |
| 2 | 1996 letter status / index heading | `sec.gov/divisions/marketreg/mr-noaction.shtml` | 5 Sep 2026 | HTTP 301 on the bare URL — **must follow redirects (`-L`)**; then 571,308 B. Entry found under "Broker-Dealer Registration – Other." 11 "withdraw" occurrences elsewhere on the page; none against this entry. |
| 3 | *Neovest* OIP ¶14 | `sec.gov/files/litigation/admin/2021/34-92285.pdf` | 5 Sep 2026 | 258,920 B, text layer present, `pdftotext -layout`. **¶14's final branding sentence recovered — not in P6.** |
| 4 | *Neptune* incoming letter ¶d | `sec.gov/divisions/marketreg/mr-noaction/2020/neptune03042020-in.pdf` | 5 Sep 2026 | 736,783 B. Only p. 1 has a text layer; `grep` on the extraction returns nothing. **p. 8 rendered at 200 dpi and read by vision** — ¶d verified verbatim. |
| 5 | Schwab developer portal — plain UA | `developer.schwab.com/sitemap.xml` | 5 Sep 2026 | **HTTP 403** (Akamai "Access Denied", 389 B). **P6's UA convention fails here.** |
| 6 | Schwab developer portal — browser UA | same, with a Chrome UA + `Accept`/`Accept-Language` | 5 Sep 2026 | **HTTP 200, 706 B, 32 URLs.** Both Trader API terms URLs present, plus a portal-level `/terms-and-conditions`. |
| 7 | Schwab terms — cold deep link | `/products/trader-api--individual/terms-and-conditions/…` | 5 Sep 2026 | HTTP 200 but SPA shell only; **the Angular router redirects a cold deep link to `/error`.** Wayback snapshot (2025-07-26) also SPA shell; text extraction → 0 chars. `main.*.js` contains no hard-coded API base URLs (runtime `uiconfig`); every probed API path returns the SPA shell via catch-all routing. |
| 8 | Schwab terms — browser route | Chrome, product page → "Terms and Conditions" modal → link → new tab | 5 Sep 2026 | **Full agreement text obtained**, ~50 KB, 22 sections, "May 2023". Same route repeated for the Commercial product. |
| 9 | Individual vs Commercial terms | `diff` of the two extracted texts | 5 Sep 2026 | **Byte-identical** apart from the tool's tab-context footer. One agreement, not two. |
| 10 | Schwab product + role pages | `/products/trader-api--individual`, `/trader-api--commercial`, `/user-guides/individual-developer/about-individual-developer-role`, `/user-guides/apis-and-apps/promoting-apps-to-production` | 5 Sep 2026 | All rendered and read via the browser route. |
| 11 | Schwab pricing | `schwab.com/pricing` → `schwab.com/legal/schwab-pricing-guide-for-individual-investors` | 5 Sep 2026 | HTTP 200, 94,851 B, server-rendered, browser UA. **"Online Trades" definition includes "Schwab APIs."** April 2026 edition. |
| 12 | Schwab client Terms of Use | `schwab.com/legal/terms-of-use` | 5 Sep 2026 | **HTTP 404** (359,808 B branded 404). Gap not closed. |
| 13 | SEC AP listing — topical filter test | `/enforcement-litigation/administrative-proceedings?populate=…` with `trading software`, `charting`, `stock screening`, `technical analysis software` | 5 Sep 2026 | **All four: "No Results match the chosen filters."** Control `populate=Neovest` returns exactly the 29 Jun 2021 entry. **Establishes that `populate` matches the Respondents field only.** |
| 14 | SEC AP listing — respondent-name sweep | same endpoint, `populate=` × `software, trading, trader, chart, screen, signal, indicator, analytic, algorithm, quant, technolog` | 5 Sep 2026 | ~190 respondents. `indicator`, `algorithm`: zero rows. All hits are accounting-fraud issuers, §12(j) delinquent-filer revocations, registered BDs/prop firms, or registered advisers. |
| 15 | SEC Litigation Releases — respondent-name sweep | `/enforcement-litigation/litigation-releases?populate=…` × `software, trading, trader, chart, screen, signal, analytic, algorithm, advisor, advisers` | 5 Sep 2026 | ~130 defendants, all fraud actions. |
| 16 | *N2K Trading Academy* order | `sec.gov/litigation/admin/2006/ia-2479.pdf` → **404** (53,435 B); correct path from the listing row: `sec.gov/files/litigation/admin/ia-2479-o.pdf` | 5 Sep 2026 | 36,941 B. **§203(c)(2)(B) application-denial proceeding.** Not a counterexample. **Method note: take the detail-link `href` out of the listing row; do not construct AP PDF paths by hand.** |
| 17 | CourtListener v4 search API | `courtlistener.com/api/rest/v4/search/?q="trading software" "unregistered broker"&type=o` | 5 Sep 2026 | **COUNT 0.** No token needed for search. |
| 18 | FINRA Notices listing | `finra.org/rules-guidance/notices` and `?search=…` and `?search_api_fulltext=…` | 5 Sep 2026 | **All three return the identical unfiltered 40-row listing** (176,702 / 176,909 / 28,058 B, same rows). The filter parameter is silently ignored. Pagination goes to `?page=91`. |
| 19 | FINRA site-wide search | `finra.org/search?search_api_fulltext=…` (param name found in the homepage `<input name='search_api_fulltext'>`) | 5 Sep 2026 | HTTP 200, 19,381 B, **identical for every query** — client-rendered; only navigation links in the HTML. |
| 20 | FINRA Notices enumeration | `?page=0…91`, curl with `--retry 4 --retry-delay 2 --retry-all-errors` | 5 Sep 2026 | **Rate-limited (HTTP 429 / truncated bodies).** 89 pages fetched, 66 undersized. **909 of ~3,700 titles recovered**; coverage 1990–97, 2000–03, 2009–10, 2015–17, 2021–26. Nothing on third-party trading software. **Partial.** |
| 21 | FINRA RN 26-15 | `finra.org/rules-guidance/notices/26-15` | 5 Sep 2026 | HTTP 200, 163,434 B, **server-rendered** — individual notices work even though search does not. |
| 22 | FINRA Rule 2210 | `finra.org/rules-guidance/rulebooks/finra-rules/2210` | 5 Sep 2026 | HTTP 200, 32,825 B, server-rendered. |
| 23 | Schwab IM letters (coordinator lead) | `sec.gov/divisions/investment/noaction/1992/charlesschwabco-052892.pdf`; `/1997/cschwab070797.pdf` | 5 Sep 2026 | 1,176,939 B / 16 pp. and 816,247 B / 13 pp., text layers present. **§22(d) and Rule 22c-1 respectively. Neither is the letter.** |

**Access notes worth carrying forward.**
- **Render-and-vision is a fully reliable substitute for OCR** on SEC scans of this era. Fourteen consecutive pages of a 1996 fax-quality scan, plus a 2020 ScanSnap scan, were read at 200–300 dpi without a single unreadable page. This should now be the default route for any pre-2002 letter reachable in the EDGAR paper-reference archive.
- **`sec.gov` and `schwab.com` want opposite User-Agents.** SEC needs a declared UA with a contact address; Schwab's Akamai edge 403s that and needs a browser UA. Check response **size** on SEC, and check for the Akamai "Access Denied" body on Schwab.
- **`sec.gov/divisions/marketreg/mr-noaction.shtml` now 301s** — use `-L`.
- **Angular SPAs with router-guarded deep links** (Schwab's portal) cannot be reached by URL alone; the in-app click path is required, and the target then opens in a new tab whose URL *is* the deep link. Attacking the JS bundle for API paths was a dead end — the base URLs come from a runtime config and every path falls through to the SPA shell.

---

*Register entries only. No legal conclusions and no advice are offered above; "supports" and "undercuts" denote the direction of the evidentiary weight in the material located, and nothing more.*


---

<br>

# S6 · ADDENDUM TRACK 6 — Recording the onboarding session (Washington two-party consent)

I have the primary sources. Writing the report.

## S6 — Track 6: recording the onboarding session (Washington two‑party consent)

**Research date: 5 September 2026.** All statutory text below was pulled from the official source where that source was reachable; where a state legislature's site refused connections from this machine (geo‑blocking — see Search log), the operative text is quoted from a published court opinion that reproduces it, and the entry is marked ◇.

---

### S6 authority register

---

**1. RCW 9.73.030 — "Intercepting, recording, or divulging private communication — Consent required — Exceptions"**
URL: `https://app.leg.wa.gov/RCW/default.aspx?cite=9.73&full=true` · **Type:** state statute · **Date:** 1967 ex.s. c 93 §1; last amended 2021 c 329 §21 · **Status:** in force, verified against the official RCW as of 5 Sep 2026.

**Verbatim, RCW 9.73.030(1):**

> "(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:
> (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;
> (b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation."

**Verbatim, RCW 9.73.030(3):**

> "(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded."

**Verbatim, RCW 9.73.030(4)** (the only place the statute recognises a *non‑announced* form of consent, and it is limited to news personnel):

> "(4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers."

**What it establishes.** Two limbs, both requiring *all*‑party consent: (a) "private communication transmitted by telephone, telegraph, radio, **or other device** … **between points within or without the state**"; (b) "private conversation." Limb (a) is expressly indifferent to whether the endpoints are inside Washington. Subsection (3) is a **deeming** provision ("consent *shall be considered obtained whenever*…"), not an exclusive definition of consent — and its proviso attaches a condition to the announcement route only: the announcement must itself be on the recording. Subsection (4)'s "readily apparent or obvious" standard is confined by its own terms to news employees; there is no general "obvious device" exemption.
**Applies to the configuration:** applies to the **audio** channel of the onboarding session. **Relevance 5.**

---

**2. RCW 9.73.050 — inadmissibility**
Same URL · state statute · 1967 ex.s. c 93 §3 · in force.

> "Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080, or in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security."

**What it establishes.** A recording made in violation of .030 is inadmissible in *any* Washington civil or criminal case. **Applies:** an unlawfully made onboarding recording could not be used by the Company to prove what the member entered, or what he was told. **Relevance 5** (this is the consequence that matters most to a firm whose whole point in recording is evidentiary).

---

**3. RCW 9.73.060 — civil liability**
Same URL · state statute · 1967 ex.s. c 93 §4; amended 1977, 2011 · in force.

> "Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his or her business, his or her person, or his or her reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him or her on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney's fee and other costs of litigation."

**What it establishes.** Private right of action; actual damages **or** liquidated damages at $100/day capped at $1,000; **plus attorney's fees and costs**. The words "**directly or by means of … any other agent**" are the hook by which conduct performed by someone else, on someone's behalf, is attributed (see *Fowler*, entry 11). **Relevance 5.**

---

**4. RCW 9.73.080 — criminal penalty (with RCW 9.92.020)**
Same URL · state statute · 1967 ex.s. c 93 §6; amended 1989, 2000 · in force.

> "(1) Except as otherwise provided in this chapter, any person who violates RCW 9.73.030 is guilty of a gross misdemeanor."

RCW 9.73 sits in Title 9 RCW, not Title 9A, so the sentence range is set by **RCW 9.92.020** (`https://app.leg.wa.gov/RCW/default.aspx?cite=9.92.020`):

> "Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for a maximum term fixed by the court of up to three hundred sixty-four days, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine."

**What it establishes.** Recording a private conversation without all‑party consent is a **crime** in Washington — up to 364 days and $5,000 — not merely a civil wrong. **Relevance 5.**

---

**5. *Kadoranian v. Bellingham Police Dep't*, 119 Wn.2d 178, 829 P.2d 1061 (1992)**
`https://static.case.law/wash-2d/119/html/0178-01.html` · Wash. Supreme Court · 21 May 1992 · **good law** (followed in *Clark*, *Townsend*, *Lewis*, *Fowler*, *Roden*, *Kipp*).

> "To determine whether or not a telephone conversation is private, the court must consider the intent or reasonable expectations of the participants as manifested by the facts and circumstances of each case." — 119 Wn.2d at 190.

> "'belonging to one's self . . . secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something ... a secret message: a private communication . . . secretly: not open or in public.'" — 119 Wn.2d at 190 (quoting *State v. Forrester*, 21 Wn. App. 855, 861 (1978), quoting Webster's Third New International Dictionary (1969)).

On the interstate point:

> "Interceptions and recordings occur where made." — 119 Wn.2d at 186.

> "Whether the interception of Ms. Kadoranian's conversation was lawful is thus determined according to the laws of the State of Washington, the place where the conversation was intercepted and recorded, not according to the laws of Canada." — *id.*

> "the 1989 amendment to this state's privacy act does not prohibit interception of telephone calls to points outside the state" — 119 Wn.2d at 191–92.

**What it establishes.** (i) the dictionary meaning of "private"; (ii) the **place‑of‑recording** choice‑of‑law rule. **Applies:** directly to (a) and (c). **Relevance 5.**

---

**6. *State v. Clark*, 129 Wn.2d 211, 916 P.2d 384 (1996)**
`https://static.case.law/wash-2d/129/html/0211-01.html` · Wash. Supreme Court · 9 May 1996 · **good law** (the canonical factor list; restated in *Lewis*, *Modica*, *Kipp*, *Roden*, *Fields*).

The three named factors, verbatim headings and text:

> "**Duration and subject matter of the conversation.** In *Kadoranian*, a citizen answered a telephone call from a stranger, told the caller that her father was not home, and then took a message. This very abbreviated conversation was not private because the nature of the information conveyed to the stranger indicated it was not intended or reasonably expected to be kept secret." — 129 Wn.2d at 225.

> "**Location of Conversation and Presence or Potential Presence of a Third Party.** A person has no reasonable expectation of privacy in a conversation that takes place at a meeting where one who attended could reveal what transpired to others. … In general, the presence of another person during the conversation means that the matter is not secret or confidential." — *id.* at 225–26.

> "**Role of the Nonconsenting Party and His or Her Relationship to the Consenting Party.** The nonconsenting party's apparent willingness to impart the information to an unidentified stranger evidences the non-private nature of the conversation." — *id.* at 226–27.

> "While each of these factors is significant in making a factual determination as to whether a conversation is private, the presence or absence of any single factor is not conclusive for the analysis." — *id.* at 227.

And, limiting the holding:

> "We are not suggesting or deciding that a conversation is not private solely because it takes place on a street or solely because it relates to a commercial or illegal transaction. … Clearly, there are many commercial and/or illegal transactions that may involve private conversations." — *id.* at 231–32.

And the scope limit that matters to a *screen* recording (footnote 1):

> "RCW 9.73 bans only audio recordings of private conversation, not photographs or soundless video recordings of persons' images. *Haymond v. Department of Licensing*, 73 Wn. App. 758, 761, 872 P.2d 61 (1994); *State v. Raymer*, 61 Wn. App. 516, 519, 810 P.2d 1383 (1991)."

**What it establishes.** The multi‑factor test; that commercial subject matter does **not** by itself make a conversation non‑private; and that **soundless screen capture is outside chapter 9.73 entirely — the audio track is what the statute reaches**.
**Applies to the configuration:** the guided session is one‑to‑one, extended, held on the member's own machine about the member's own money settings, with no third party present, and with the counterparty a known service provider rather than an unidentified stranger. Every *Clark* factor points **toward** privacy. Contrast *Clark*'s facts (brief, street, strangers, third parties present, marketplace). **Relevance 5.**

---

**7. *State v. Townsend*, 147 Wn.2d 666, 57 P.3d 255 (2002)**
`https://static.case.law/wash-2d/147/html/0666-01.html` · Wash. Supreme Court · 7 Nov 2002 · **good law**; narrowed by *Roden* on "interception," not on consent.

> "This statute is considered one of the most restrictive in the nation." — 147 Wn.2d at 672.

> "The mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private." — *id.* at 674.

The consent holding — the two independent routes:

> "A party is deemed to have consented to a communication being recorded when another party has announced in an effective manner that the conversation would be recorded. RCW 9.73.030(3). **In addition, a communicating party will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded.**" — *id.* at 675 (emphasis added).

> "because Townsend, as a user of e-mail had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent, he is properly deemed to have consented to the recording of those messages." — *id.* at 676.

And on the medium giving notice:

> "the ICQ privacy policy advised users such as Townsend that if they did not wish to be subjected to the risks of recording, they should not use the software." — *id.* at 678.

**What it establishes.** Implied consent **can** arise from the nature of the medium and from the party's knowledge that recording is inherent — and that route sits **alongside** §.030(3), introduced by "In addition," not inside it. It also establishes that the communications were nonetheless "**private**" — implied consent is a separate defence, not a finding of non‑privacy.
**Applies:** supports the proposition that a member who is told, and affirms, that the session is being recorded has consented. **Undercut** in part by *Fields* (entry 15). **Relevance 5.**

---

**8. *In re Marriage of Farr*, 87 Wn. App. 177, 940 P.2d 679 (1997)**
`https://static.case.law/wash-app/87/html/0177-01.html` · Wash. Ct. App. Div. I · 28 July 1997 · review denied, 134 Wn.2d 1014 (1998) · good law; relied on in *Townsend* at 675–76.

> "While it is unlawful to record private telephone communications without consent under RCW 9.73.030(1)(a), we agree with the lower court that Martin waived any statutory privacy right by leaving messages on an answering machine. A party consents to his or her communication being recorded when another party has announced, 'in any reasonably effective manner,' that the conversation will be recorded. RCW 9.73.030(3). An answering machine's only function is to record messages. Knowing that his messages were being recorded, Martin had no reasonable expectation of privacy." — 87 Wn. App. at 184.

**What it establishes.** The "the medium itself announces" route to consent. **Applies:** weakly — a guided screen‑share session is not a device "whose only function is to record." **Relevance 3.**

---

**9. *State v. Christensen*, 153 Wn.2d 186, 102 P.3d 789 (2004)**
`https://static.case.law/wash-2d/153/html/0186-01.html` · Wash. Supreme Court · 9 Dec 2004 · good law.

> "There are essentially four prongs in analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted by use of (3) a device designed to record and/or transmit, (4) without the consent of all parties to the private communication. RCW 9.73.030." — 153 Wn.2d at 192.

> "We note that the act requires the consent of all parties, a requirement not analyzed by the *Bonilla* court." — *id.* at 199 n.6.

**What it establishes.** The four‑prong framework, and that **a party to the conversation who does the recording is still bound** — being a participant is no defence in Washington. **Relevance 5.**

---

**10. *Lewis v. Department of Licensing*, 157 Wn.2d 446, 139 P.3d 1078 (2006)**
`https://static.case.law/wash-2d/157/html/0446-01.html` · Wash. Supreme Court · 3 Aug 2006 · good law.

> "In *Clark*, we identified three factors bearing on the reasonable expectations and intent of the parties: (1) duration and subject matter of the conversation, (2) location of conversation and presence or potential presence of a third party, and (3) role of the nonconsenting party and his or her relationship to the consenting party." — 157 Wn.2d at 458–59.

> "The drivers contend that traffic stop conversations are private because they are involuntary. However, the drivers offer no authority for the proposition that an involuntary conversation is a private one. Rather, the correct inquiry is whether the parties intend the conversation to be secret, in light of the factors from *Clark*." — *id.* at 459–60.

> "The language of RCW 9.73.090 clearly and unambiguously mandates that police officers 'shall' advise 'any' persons that they are being recorded." — *id.* at 465.

**What it establishes.** The canonical three‑factor restatement, and a strict‑compliance posture toward the act's warning requirements (there, RCW 9.73.090(1)(c); the reasoning is transferable to the .030(3) proviso). **Applies:** confirms the test used in (a). **Relevance 4.**

---

**11. *State v. Fowler*, 157 Wn.2d 387, 139 P.3d 342 (2006)** — **the interstate authority**
`https://static.case.law/wash-2d/157/html/0387-01.html` · Wash. Supreme Court · 3 Aug 2006 · **good law** (followed by the Nevada Supreme Court in *McLellan*, entry 20).

Facts: the recording party was in **Oregon**; the non‑consenting party (Fowler) was **in Washington**; the call was between the two states; only one party consented.

> "As this court made clear in *Kadoranian*, the test for whether a recording of a conversation or communication is lawful is determined under the laws of the place of the recording." — 157 Wn.2d at 395.

> "While Fowler undoubtedly has an expectation of privacy as a Washington resident, he does not have an expectation of privacy related to his behavior in Oregon…" — *id.*

The critical caveat:

> "Of course, RCW 9.73.030 may be violated by a recording made outside of this state if the recording was made for use of the evidence in Washington by an agent of a Washington official or other person. RCW 9.73.030 makes it clear that it is unlawful for 'any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions' to intercept or record certain communications. Moreover, RCW 9.73.060 provides that '[a]ny person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages.' Thus, when read together, it is clear that these provisions encompass persons acting as 'agents' on behalf of someone in Washington." — 157 Wn.2d at 396.

And the disposition rested on the absence of such agency:

> "because the telephone calls were lawfully recorded in Oregon and were not done at the request of, with the involvement of, or as agents of Washington law enforcement officials otherwise with the intent to use the recordings in Washington, the recordings were not unlawful under RCW 9.73.030" — *id.* at 397.

**What it establishes.** For a two‑state conversation, Washington asks **where the recording was made**, and applies that place's law — *unless* the recorder acted **at the request of, with the involvement of, or as agent of** a Washington person, **or with the intent to use the recording in Washington**, in which case RCW 9.73.030 reaches it.
**Applies to the configuration — and this is the pivot of (c).** The recording is made on the **member's** machine. If the member is in a one‑party state, *Fowler* points to that state's law governing lawfulness. **But** the configuration's recording is not the member's private keepsake: it exists because the Company's technical lead (Washington) conducts the session and the Company wants the record. If the member records **at the Company's request, with its involvement, or with the intent that the Company use the recording**, *Fowler* ¶17 places it inside RCW 9.73.030 regardless of where the member sits. **Relevance 5.**

---

**12. *State v. Modica*, 164 Wn.2d 83, 185 P.3d 1062 (2008)**
`https://static.case.law/wash-2d/164/html/0083-01.html` · Wash. Supreme Court · 10 July 2008 · good law.

> "A communication is private (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable." — 164 Wn.2d at 88 (quoting *Christensen*, 153 Wn.2d at 193).

> "However, we caution that we have not held, and do not hold today, that a conversation is not private simply because the participants know it will or might be recorded or intercepted. … Intercepting or recording telephone calls violates the privacy act except under narrow circumstances, and **we will generally presume that conversations between two parties are intended to be private. Signs or automated recordings that calls may be recorded or monitored do not, in themselves, defeat a reasonable expectation of privacy.**" — 164 Wn.2d at 88–89.

**What it establishes — and this is the sharpest point in the whole track.** In Washington, notice that a session is recorded does **not** make the session non‑private. A **presumption runs the other way** for two‑party conversations. Notice therefore has to do its work as **consent** under §.030(1)/(3), not as a privacy‑defeater. **Applies:** disposes of any argument that a banner saying "this session is recorded" takes the session outside the act. **Relevance 5.**

---

**13. *State v. Kipp*, 179 Wn.2d 718, 317 P.3d 1029 (2014)**
`https://static.case.law/wash-2d/179/html/0718-01.html` · Wash. Supreme Court · 6 Feb 2014 · good law; the current statement of the test.

> "Washington's privacy act and 'all-party consent' rule provide more protection than both the state and federal constitutions." — 179 Wn.2d at 725.

> "**Since the act is implicated by the unconsented recording, the statutory analysis favors privacy unless it is shown differently.**" — *id.* at 729.

> "Factors bearing on the reasonableness of the privacy expectation include the duration and subject matter of the communication, the location of the communication and the presence or potential presence of third parties, and the role of the nonconsenting party and his or her relationship to the consenting party. … The reasonable expectation standard calls for a case-by-case consideration of all the facts." — *id.*

Holding on facts closely comparable to a one‑to‑one guided session: a **10‑minute** conversation in a **private home** between two people who knew each other was **private**; the recording violated the act. — 179 Wn.2d at 729–31.

**What it establishes.** The burden posture: privacy is the default; the party seeking to use the recording must displace it. And a 10‑minute two‑person conversation in a private dwelling is squarely within the act. **Applies:** an onboarding session is longer and more personal than *Kipp*'s facts. **Relevance 5.**

---

**14. *State v. Roden*, 179 Wn.2d 893, 321 P.3d 1183 (2014)**
`https://static.case.law/wash-2d/179/html/0893-01.html` · Wash. Supreme Court · 27 Feb 2014 · good law.

> "There are four prongs we consider when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device that was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication." — 179 Wn.2d at 899.

> "We will generally presume that conversations between two parties are intended to be private. *State v. Modica*, 164 Wn.2d 83, 89, 186 P.3d 1062 (2008)." — *id.* at 900.

> "In the context of new communications technology, we have continually held that the mere possibility of intrusion will not strip citizens of their privacy rights." — *id.* at 900–01.

> "Federal cases on this issue are not instructive given the significant differences between the state and federal statutory schemes. The federal statute defines terms with greater technical specificity … The Washington statute does not include technical definitions or independent provisions for stored communications, and we have consistently interpreted its terms broadly." — *id.* at 905–06.

**What it establishes.** Washington will not import federal technical distinctions; the act is read broadly across new media; a two‑party exchange is presumptively private. **Applies:** a browser/screen‑share session with audio is comfortably a "device" under limb (a) and a "conversation" under limb (b). **Relevance 4.**

---

**15. *State v. Fields*, No. 84811‑9‑I (Wash. Ct. App. Div. I, 29 July 2024), 553 P.3d 71** — **the controlling authority on the *form* of consent**
`https://www.courts.wa.gov/opinions/pdf/848119.pdf` · published Court of Appeals opinion · **status:** no Washington Supreme Court review located in a CourtListener search on 5 Sep 2026 — **not conclusively status‑checked** (the slip opinion notice directs to the official reports for the final text).

> "The statute allows consent of the non-recording party to be inferred where one party has announced to all other parties in a reasonably effective manner that the conversation is being recorded **as long as that announcement is included in the recording**. RCW 9.73.030(3)." (slip op. at 24.)

> "There was no such announcement in the recording at issue here. The recording reflects that the parties were in the middle of a conversation when R.F. began to record it. The recording contains no statement or other 'reasonably effective' communication by R.F. that she is recording the conversation. … However, **notifying a party at an earlier point in time that you may record a later conversation** based on your feelings about that conversation **does not meet the requirements of the exception outlined by statute**." (slip op. at 24–25.)

> "Not surprisingly, the State does not attempt to argue that Fields' knowledge that he was being recorded satisfies the **strict statutory requirement** that R.F. announce that she was recording in the recording." (slip op. at 25.)

> "This argument turns the privacy act on its head and defeats the purpose of the statutory announcement requirement. Requiring the party recording to announce to all parties on the recording that they were being recorded leaves the question as to whether subjects of the recording knew they were being recorded undebatable." (slip op. at 25.)

By contrast, the court accepted a companion recording that **did** open with an announcement:

> "a second recorded conversation introduced at trial and unchallenged by the defense begins with R.F. explicitly stating 'because you are insulting me and I'm gonna record it till you leave the house.'" (slip op. at 24–25.)

**What it establishes.** Where the §.030(3) route is relied on: (i) the announcement must be **in** the recording; (ii) an **earlier**, out‑of‑recording notice that recording *may* happen does **not** satisfy it; (iii) the requirement is treated as **strict**. **Note the limit:** the court did not decide whether *Townsend*'s independent "knows the messages will be recorded" route could have carried the day — the State did not argue it. That gap is the single largest open question on (b). **Relevance 5.**

---

**16. 18 U.S.C. §2511(2)(d) — federal baseline**
`https://www.govinfo.gov/content/pkg/USCODE-2023-title18/html/USCODE-2023-title18-partI-chap119-sec2511.htm` (U.S. Code, 2023 edition; response size 35,145 bytes — real content, not a block page) · federal statute · in force.

> "(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."

**What it establishes.** One‑party consent at federal level, subject to the crime‑or‑tort proviso. **Applies:** a party‑recorded onboarding session with the member's consent is lawful under federal law — federal law is not the operative constraint here. **Relevance 3.**

---

**17. *People v. Conklin*, 12 Cal. 3d 259, 524 P.2d 1064 (1974)** — federal law is a floor, not a ceiling
`https://static.case.law/cal-3d/12/html/0259-01.html` · Cal. Supreme Court · 12 June 1974 · appeal dismissed, 419 U.S. 1064 (1974) · good law.

Quoting S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), 1968 U.S.C.C.A.N. 2112, 2187:

> "'No applications may be authorized unless a specific State statute permits it. The State statute must meet the minimum standards reflected as a whole in the proposed chapter [title III]. **The proposed provision envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.**'" — 12 Cal. 3d at 272.

> "the mere existence of a different state standard does not inevitably lead to a conflict with federal law … we believe that section 631 is consistent with federal purposes and that its more restrictive rule concerning consent was anticipated by Congress." — *id.* at 270–71.

> "Congress left room for the states to supplement the law in certain areas, provided the regulations are not more permissive." — *id.* at 272 (quoting *Halpin v. Superior Court*, 6 Cal. 3d 885, 898–99).

**What it establishes.** §2511(2)(d) sets a **floor**. An all‑party state statute is not preempted. **Applies:** federal one‑party consent supplies no defence to RCW 9.73.030. **Relevance 5.**

---

**18. *Flanagan v. Flanagan*, 27 Cal. 4th 766, 41 P.3d 575 (2002)** — California's test
`https://static.case.law/cal-4th/27/html/0766-01.html` · Cal. Supreme Court · 14 Mar 2002 · good law.

> "a conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." — 27 Cal. 4th at 776–77.

> "the first clause includes within the statutory protection any conversation under circumstances showing that a party desires it not to be overheard or recorded. **The second clause then excludes a conversation under circumstances where the party reasonably believes it will be overheard or recorded.**" — *id.* at 774–75.

**What it establishes.** In California, unlike Washington, an effective up‑front disclosure that the session is recorded takes the communication **outside** the definition of "confidential communication" — §632 then does not apply at all. **Applies:** a California‑resident member is *less* of a problem than the Washington side, provided the disclosure is genuine and up front. **Relevance 4.**

---

**19. *Project Veritas v. Schmidt*, 125 F.4th 929 (9th Cir. 2025) (en banc)** — Oregon status correction
`https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/07/22-35271.pdf` · 9th Cir. en banc · filed 7 Jan 2025 · **supersedes the panel decision at 72 F.4th 1043 (9th Cir. 2023)**, which had held ORS 165.540(1)(c) an unconstitutional content‑based restriction.

> "The en banc court affirmed the district court's dismissal of a complaint brought by Project Veritas … alleging that Oregon's conversational privacy statute violates the First Amendment." (Summary, at 2.)

> "The conversation privacy statute **survived intermediate scrutiny** as applied to Project Veritas. Oregon has a significant government interest in ensuring that its residents know when their conversations are recorded, the statute is narrowly tailored to that interest…" (Summary, at 3.)

**What it establishes.** ORS 165.540(1)(c)'s "specifically informed" requirement **stands**. Any 2023‑vintage source saying Oregon's in‑person recording notice rule was struck down is out of date. **Relevance 4** (status‑check finding).

---

**20. *McLellan v. State*, 124 Nev. 263, 182 P.3d 106 (2008)** — two‑state calls, the other side of *Fowler*
`https://static.case.law/nev/124/html/0263-01.html` · Nev. Supreme Court · 1 May 2008 · good law.

> "We must now determine whether evidence lawfully seized by California law enforcement under California law is admissible in a Nevada court, when such an interception would be unlawful in Nevada and therefore inadmissible." — 124 Nev. at 266.

> "We are thus persuaded by the Supreme Court of Washington's opinion in *State v. Fowler*, a case factually similar to the case at bar. In *Fowler*, the court concluded that telephone calls lawfully recorded in Oregon, with the aid of Oregon law enforcement and the consent of one party as required in Oregon, were admissible in Washington — a two-party consent state. In its reasoning, the court relied upon the fact that Oregon law enforcement did not act with the knowledge of, or at the request of, Washington law enforcement, or with the intent to use the recordings in Washington." — 124 Nev. at 268.

**What it establishes.** *Fowler*'s place‑of‑recording rule has been adopted by at least one other all‑party state. **Applies:** reinforces (c). **Relevance 4.**

---

**21. *Commonwealth v. Hyde*, 434 Mass. 594, 750 N.E.2d 963 (2001)** — Massachusetts text ◇(official site geo‑blocked)
`https://static.case.law/mass/434/html/0594-01.html` · Mass. SJC · 13 July 2001 · good law.

> "The statute provides that '[t]he term "interception" means to **secretly** hear, **secretly** record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication . . . .' G. L. c. 272, § 99 B 4." — 434 Mass. at 597–98 (emphasis added).

> "An 'oral communication' is defined as 'speech, except such speech as is transmitted over the public air waves by radio or other similar device.' G. L. c. 272, § 99 B 2." — *id.* at 598.

> "The statute is carefully worded and unambiguous, and lists no exception for a private individual who secretly records the oral communications of public officials." — *id.*

> "'Except as otherwise specifically provided in this section any person who — willfully commits an interception … shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years…'" — G.L. c. 272, §99 C 1, quoted at 434 Mass. at 597 n.3.

**What it establishes.** Massachusetts prohibits **secret** recording. An **open, announced** recording is not an "interception" at all. **Relevance 4.**

---

**22. *Lewis v. LeGrow*, 258 Mich. App. 175, 670 N.W.2d 675 (2003)** — Michigan, contested ◇(official site 403)
`https://static.case.law/mich-app/258/html/0175-01.html` · Mich. Ct. App. · 21 Aug 2003 · good law in that court; the Supreme Court order below cuts the other way.

> "'Eavesdrop' or 'eavesdropping' means to overhear, record, amplify or transmit any part of the private discourse **of others** without the permission of all persons engaged in the discourse. . . ." — MCL 750.539a(2), quoted at 258 Mich. App. at 185.

> "MCL 750.539c prohibits eavesdropping, but that prohibition is limited by subsection 539a(2) to overhearing, recording, amplifying, or transmitting the private discourse of others without the permission of all persons engaged in the discourse. … **For that reason, a participant in a private conversation may record it without 'eavesdropping' because the conversation is not the 'discourse of others.'** *Sullivan v Gray*, 117 Mich App 476, 481; 324 NW2d 58 (1982)." — 258 Mich. App. at 185.

The contrary pull, from the Michigan Supreme Court:

> "'a participant [in a private conversation] may not unilaterally nullify other participants' expectations of privacy by secretly broadcasting the conversation,' *Dickerson*, supra, 461 Mich at 851" — quoted at 258 Mich. App. at 187–88.

**What it establishes.** Michigan's "all‑party" label is **contested**: the Court of Appeals reads MCL 750.539c to exempt a participant; the Supreme Court's *Dickerson* order (461 Mich. 851 (1999)) contains contrary language. **Relevance 4.**

---

**23. *State v. DuBray*, 2003 MT 255, 317 Mont. 377, 77 P.3d 247** — Montana text ◇(official site unreachable)
`https://static.case.law/mont/317/html/0377-01.html` · Mont. Supreme Court · 23 Sept 2003 · good law.

> "Section 45-8-213, MCA, provides, in relevant part, that a person commits the offense of violating privacy in communication if the person purposely or knowingly: … **(c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to: (i) elected or appointed public officials or employees when the transcription or recording is done in the performance of official duty; (ii) persons speaking at public meetings; or (iii) persons given warning of the transcription or recording.**" — 2003 MT 255, ¶98, 317 Mont. at 399–400.

> "We hold that because DuBray was aware that his telephone conversations were subject to monitoring and recording, no violation of § 45-8-213, MCA … occurred … DuBray consented to the recordings as permitted under § 45-8-213(1)(c)(iii), MCA." — ¶101.

**What it establishes.** Montana's prohibition reaches only a **hidden** device, and §45‑8‑213(1)(c)(iii) exempts "persons given warning of the … recording." A disclosed recording is outside it. **Relevance 4.**

---

**24. *Commonwealth v. Cruttenden*, 619 Pa. 123, 58 A.3d 95 (2012)** — Pennsylvania text ◇(official site unreachable)
`https://static.case.law/pa/619/html/0123-01.html` · Pa. Supreme Court · 17 Dec 2012 · good law.

> "**§ 5703. Interception, disclosure or use of wire, electronic or oral communications.** … (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication … or (3) intentionally uses or endeavors to use the contents…" — 18 Pa.C.S. §5703, quoted at 619 Pa. at 130 n.5.

> "(4) A person, to intercept a wire, electronic or oral communication, **where all parties to the communication have given prior consent to such interception**." — 18 Pa.C.S. §5704(4), quoted at 619 Pa. at 130 n.6.

> "'Intercept.' — Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." — 18 Pa.C.S. §5702, quoted at 619 Pa. at 130 n.5.

**What it establishes.** Pennsylvania requires **prior consent of all parties**. **Relevance 4.** *Commonwealth v. Byrd*, 235 A.3d 311 (Pa. 2020) addresses whether a party's mere knowledge of recording amounts to "prior consent" under §5704(4) — **I could not read it** (pacourts.us returned 403 to both curl and WebFetch). See Negative findings.

---

**25. *People v. Davis*, 2021 IL 126435, 185 N.E.3d 1223** — Illinois text ◇(ILGA geo‑blocked)
`https://www.illinoiscourts.gov/resources/72d2caf6-2dca-4619-b248-03c184a27502/file` · Ill. Supreme Court · 21 Oct 2021 · good law.

> "'(a) A person commits eavesdropping when he or she knowingly and intentionally: *** (2) Uses an eavesdropping device, **in a surreptitious manner**, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party **unless he or she does so with the consent of all other parties to the private conversation**.' Id. § 14-2(a)(2)." — 2021 IL 126435, ¶16.

> "An eavesdropping device is defined as 'any device capable of being used to hear or record oral conversation or intercept, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means.' Id. § 14-1(a)." — *id.*

> "Section 14-5 bars the admission of 'any evidence obtained in violation of this Article.' 720 ILCS 5/14-5 (West 2018)." — *id.* ¶24.

**What it establishes.** Illinois' current (post‑P.A. 98‑1142) party‑recording provision has **two** elements the configuration can defeat: it must be **surreptitious**, and it must lack all‑party consent. **Relevance 4.**

---

**26. *State v. Czekalski*, 169 N.H. 732, 158 A.3d 1166 (2017)** — New Hampshire text ◇(official site unreachable)
`https://static.case.law/nh/169/html/0732-01.html` · N.H. Supreme Court · 11 Apr 2017 · good law.

> "The New Hampshire Wiretapping and Eavesdropping statute, RSA chapter 570-A, makes it unlawful for a person to '[w]ilfully intercept[ ] . . . any telecommunication or oral communication': (1) except as specifically provided in RSA chapter 570-A; or (2) '**without the consent of all parties to the communication**.' RSA 570-A:2, I(a) (2001)." — 169 N.H. at 737.

**Relevance 3.**

---

### All‑party consent states

Verified means: operative text read against the source named. **Official** = the state's own legislature site. **Opinion** = the text as reproduced verbatim in a published court opinion, because the legislature's site refused connections from this machine (see Search log). **◇** marks entries where the official site could not be reached.

| State | Citation | Verbatim consent requirement | Verified? | Contested / notes |
|---|---|---|---|---|
| **Washington** | RCW 9.73.030(1)(a),(b) | "…without first obtaining the consent of all the participants in the communication" / "…without first obtaining the consent of all the persons engaged in the conversation." | **Official** (app.leg.wa.gov, full=true) | Not contested. Only **audio** is covered — soundless video/screen capture is outside ch. 9.73 (*Clark*, 129 Wn.2d at 214 n.1). §.030(3) supplies a recorded‑announcement route. |
| **California** | Cal. Penal Code §632(a),(c) | "(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication…" ; "(c) …'confidential communication' means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes … any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard **or recorded**." | **Official** (leginfo.legislature.ca.gov; Stats. 2016, ch. 855, eff. 1 Jan 2017) | Not contested as to status. But §632 reaches only a "confidential communication"; *Flanagan*, 27 Cal. 4th at 774–77, holds an announced recording falls in the **exclusion**. §637.2 gives $5,000 or 3× actual damages per violation. |
| **Florida** | Fla. Stat. §934.03(2)(d) | "It is lawful under this section and ss. 934.04-934.09 for a person to intercept a wire, oral, or electronic communication when **all of the parties to the communication have given prior consent** to such interception." | **Official** (leg.state.fl.us) | Not contested. "Oral communication" is defined in §934.02(2) by reference to a justified expectation of privacy — not re‑verified here. |
| **Illinois** | 720 ILCS 5/14‑2(a)(2) | "Uses an eavesdropping device, **in a surreptitious manner**, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party **unless he or she does so with the consent of all other parties** to the private conversation." | **Opinion** ◇ — *People v. Davis*, 2021 IL 126435, ¶16 (quoting West 2018) | **Status changed.** The pre‑2014 statute was struck down in *People v. Clark*, 2014 IL 115776 and *People v. Melongo*, 2014 IL 114852; the current text is P.A. 98‑1142. Any survey quoting the old §14‑2 is stale. ILGA site geo‑blocked. |
| **Maryland** | Md. Code, Cts. & Jud. Proc. §10‑402(c)(3) | "It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where **all of the parties to the communication have given prior consent** to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act…" | **Official** (mgaleg.maryland.gov, via WebFetch) | Not contested. Note the double condition: the recorder must be a party **and** all must consent. |
| **Massachusetts** | Mass. Gen. Laws ch. 272, §99 B 4, C 1 | "The term 'interception' means to **secretly** hear, **secretly** record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person **other than a person given prior authority by all parties** to such communication…" | **Opinion** ◇ — *Commonwealth v. Hyde*, 434 Mass. 594, 597–98 (2001) | Not a pure all‑party rule: the prohibition bites only on **secret** recording. An openly disclosed recording is not an "interception." malegislature.gov geo‑blocked. |
| **Michigan** | MCL 750.539c; definition at MCL 750.539a(2) | "'Eavesdrop' … means to overhear, record, amplify or transmit any part of the private discourse **of others** without the permission of all persons engaged in the discourse." | **Opinion** ◇ — *Lewis v. LeGrow*, 258 Mich. App. 175, 185 (2003) | **CONTESTED.** *Sullivan v. Gray*, 117 Mich. App. 476, 481 (1982) and *LeGrow* hold a **participant** may record without "eavesdropping." The Supreme Court's order in *Dickerson v. Raphael*, 461 Mich. 851 (1999) says a participant "may not unilaterally nullify other participants' expectations of privacy by secretly broadcasting the conversation." legislature.mi.gov returns 403. |
| **Montana** | Mont. Code §45‑8‑213(1)(c) | "records or causes to be recorded a conversation by use of a **hidden** electronic or mechanical device that reproduces a human conversation **without the knowledge of all parties** to the conversation. This subsection (1)(c) does not apply to: … (iii) **persons given warning of the transcription or recording**." | **Opinion** ◇ — *State v. DuBray*, 2003 MT 255, ¶98, 317 Mont. 377, 399–400 | Not contested, but narrower than the label: only **hidden** devices, and a warning is a complete exemption (*DuBray*, ¶101). leg.mt.gov unreachable. |
| **Nevada** | NRS 200.620(1); NRS 200.650 | §200.620(1): "…it is unlawful for any person to intercept or attempt to intercept any wire communication unless: (a) The interception … is made with the prior consent of **one** of the parties … **and** (b) An emergency situation exists…" ; §200.650: "…a person shall not intrude upon the privacy of other persons by **surreptitiously** listening to, monitoring or recording … any private conversation … **unless authorized to do so by one of the persons** engaging in the conversation." | **Reproduction** ◇ (nevada.public.law, sourced to leg.state.nv.us; leg.state.nv.us returns 403) + **Opinion**: *McLellan v. State*, 124 Nev. 263, 266–67 (2008) | **CONTESTED, and split by medium.** The **text** of §200.620 says one‑party plus emergency; the Nevada Supreme Court construes it as all‑party for telephone: *Lane v. Allstate Ins. Co.*, 114 Nev. 1176, 1179–80 (1998); *McLellan*, 124 Nev. at 266 ("NRS 200.620 dictates that all parties … must consent"). **In‑person** conversations under §200.650 are **one‑party** and require the recording to be "surreptitious." |
| **New Hampshire** | RSA 570‑A:2, I(a) | "[w]ilfully intercept[s] … any telecommunication or oral communication" … "**without the consent of all parties** to the communication." | **Opinion** ◇ — *State v. Czekalski*, 169 N.H. 732, 737 (2017) (quoting the 2001 version) | Not contested. gencourt.state.nh.us unreachable; the 2001 text quoted may not reflect later amendments — **not status‑checked against current session laws**. |
| **Oregon** | ORS 165.540(1)(a), (1)(c) | (1)(a) telecommunication/radio: "…**unless consent is given by at least one participant**." (1)(c) conversation: "Obtain or attempt to obtain the whole or any part of a conversation by means of any device … **if not all participants in the conversation are specifically informed** that their conversation is being obtained." | **Reproduction** ◇ (oregon.public.law, sourced to oregonlegislature.gov, which is unreachable) | **CONTESTED / STATUS CORRECTED.** Oregon is **one‑party for telecommunications** and **notice‑for‑in‑person‑conversations** — it is not a conventional all‑party state. The 9th Circuit panel struck §165.540(1)(c) in *Project Veritas v. Schmidt*, 72 F.4th 1043 (2023); the **en banc court upheld it**, 125 F.4th 929 (9th Cir. 2025). Note also §165.540(3): the prohibitions "do not apply to subscribers or members of their family who perform the acts prohibited … **in their homes**." |
| **Pennsylvania** | 18 Pa.C.S. §5703; §5704(4) | §5704(4): "It shall not be unlawful … (4) A person, to intercept a wire, electronic or oral communication, **where all parties to the communication have given prior consent** to such interception." | **Opinion** ◇ — *Commonwealth v. Cruttenden*, 619 Pa. 123, 130 nn.5–6 (2012) | Not contested as to status. **Open:** *Commonwealth v. Byrd*, 235 A.3d 311 (Pa. 2020) addresses whether knowledge of recording constitutes "prior consent" under §5704(4) — **I could not obtain it** (pacourts.us 403). legis.state.pa.us unreachable. |
| **Delaware** | 11 Del. C. §1335(a)(4) **vs** 11 Del. C. §2402(c)(4) | §1335(a)(4): "Intercepts **without the consent of all parties thereto** a message by telephone, telegraph, letter or other means of communicating privately, including private conversation." §2402(c)(4): "For a person to intercept a wire, oral or electronic communication where **the person is a party** to the communication or where **one of the parties** … has given prior consent…" | **Official** (delcode.delaware.gov, both sections) | **CONTESTED — the two Delaware statutes point in opposite directions.** §1335 is all‑party; §2402(c)(4) is a one‑party participant exemption. Delaware appears on all‑party surveys because of §1335; the wiretap chapter says the opposite. |
| **Connecticut** | Conn. Gen. Stat. §52‑570d(a) (civil, telephonic only) | "No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use … **(1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device**…" | **Official** (cga.ct.gov, ch. 925; P.A. 90‑305; P.A. 19‑132; P.A. 21‑40) | **CONTESTED.** Connecticut's **criminal** eavesdropping statute (§53a‑189, via §53a‑187) is **one‑party**; §52‑570d is a **civil** cause of action limited to **telephonic** communications. Connecticut is therefore not an all‑party state across the board. **Note for the deliverable:** §52‑570d is the only statute found in this survey that **expressly names written prior consent as a compliant alternative to a recorded announcement**. |
| **Vermont** | — | — | **Negative finding** | Vermont has **no** all‑party recording statute. It appears on some surveys because of *State v. Geraw*, 173 Vt. 350 (2002) and *State v. Blow*, 157 Vt. 513 (1991), which are **state‑constitutional** rulings against warrantless recording **by state actors** in the home — not a rule binding private parties. |

**States NOT included and why:** Hawaii (HRS §803‑42(b)(3) is one‑party except for a device installed in a private place); Maine, New York, Colorado, Texas, Georgia and the remaining ~38 jurisdictions are one‑party. I did not re‑verify each of the one‑party states against its statute; that was outside the commission.

---

### The deliverable

#### Does the rule bite?

**(a) Is the session a "private conversation"/"private communication"?** The sources point one way. *Kipp*, 179 Wn.2d at 729: "the statutory analysis favors privacy unless it is shown differently." *Modica*, 164 Wn.2d at 89: "we will generally presume that conversations between two parties are intended to be private." Running the *Clark*/*Lewis* factors against the configuration: **duration and subject matter** — an extended session about the member's own money settings (*Kipp*: 10 minutes sufficed); **location** — the member's own machine, no third parties (*Clark*, 129 Wn.2d at 225–26 — the factor that defeated privacy there is absent here); **role of the counterparty** — a known, identified service provider in a continuing relationship, not the "unidentified stranger" of *Kadoranian* and *Clark*. And *Clark*, 129 Wn.2d at 231–32 expressly declines to say a conversation is non‑private "solely because it relates to a commercial … transaction." **A one‑to‑one guided setup session is within the statute on the test Washington actually applies.** The *screen* channel is not: *Clark*, 129 Wn.2d at 214 n.1 — chapter 9.73 "bans only audio recordings of private conversation, not photographs or soundless video recordings." The audio is the exposure.

**(b) What form of consent?** RCW 9.73.030(1) requires "consent of all the participants" and prescribes **no form**. §.030(3) is a **deeming** provision — one guaranteed route, with a condition attached: the announcement must itself be recorded. *Townsend*, 147 Wn.2d at 675 recognises a second, independent route ("**In addition**, a communicating party will be deemed to have consented … when the party knows that the messages will be recorded"). But *Fields* (slip op. at 24–25) treats the §.030(3) requirement as **strict**, rejects a prior out‑of‑recording notice, and observes that the State "does not attempt to argue that Fields' knowledge … satisfies the strict statutory requirement." **No Washington authority was found holding that a written or clicked electronic acknowledgment, standing alone, satisfies RCW 9.73.030.** Contrast Connecticut, where the legislature said so expressly (§52‑570d(a)(1)) — Washington's legislature did not. The **recorded spoken announcement is the safe route**; a click is corroboration, not the statutory hook.

**(c) Does it reach a recording on the member's machine, at his request?** Four steps from the sources:
1. *Christensen*, 153 Wn.2d at 192 and 199 n.6 — a **party** to the conversation is bound; being the recorder does not exempt you.
2. Both individuals are "participants," so **both** must consent — the member's own request is his consent; the Washington technical lead's consent is his own participation and announcement. On the four‑prong test, prong (4) is satisfied **only if both are captured**.
3. *Kadoranian*, 119 Wn.2d at 186 and *Fowler*, 157 Wn.2d at 395: "Interceptions and recordings occur where made"; "the test for whether a recording … is lawful is determined under the laws of the place of the recording." The recorder runs on the **member's** machine, so on its face the **member's state's** law governs.
4. **But** *Fowler*, 157 Wn.2d at 396: RCW 9.73.030 "may be violated by a recording made outside of this state if the recording was made for use of the evidence in Washington by an agent of a Washington official **or other person**," and RCW 9.73.060's "directly or by means of … any other agent" language "encompass[es] persons acting as 'agents' on behalf of someone in Washington." If the member records **at the Company's request, with its involvement, or with the intent that the Company use the recording**, the sources place it back inside RCW 9.73.030 whatever the member's location. Limb (a) of §.030(1) is in any event expressly indifferent to geography: "between points within or without the state."

**Practical reading of what the sources require:** design to **Washington plus the member's state**, and do not rely on the recording being "the member's own."

**(d) Second all‑party requirement from residence?** Yes, in the thirteen jurisdictions tabled above, on the terms tabled. Note the ones that are *not* what the surveys say: **Oregon** (one‑party for telecom; notice for in‑person), **Nevada** (one‑party in‑person, all‑party by construction for telephone), **Michigan** (participant exemption, contested), **Connecticut** (civil/telephonic only; criminal side one‑party), **Delaware** (two statutes in conflict), **Vermont** (no statute at all).

**(e) Federal baseline.** 18 U.S.C. §2511(2)(d) permits party recording. *Conklin*, 12 Cal. 3d at 272, quoting the Senate Report: States "would be free to adopt more restrictive legislation … but not less restrictive legislation." **Federal law is a floor. It supplies no defence to RCW 9.73.030.**

---

#### Is a "this session is recorded — I agree" click at session start sufficient?

**On the sources, no — not on its own, for Washington.** Three reasons drawn from the authorities:

1. **A click is not an announcement recorded at the beginning of the recording.** RCW 9.73.030(3) attaches the proviso in terms: "if the conversation is to be recorded that said announcement shall also be recorded." *Fields* (slip op. at 24) reads that as a condition of the route, and (slip op. at 24–25) holds that a notice given "at an earlier point in time … does not meet the requirements of the exception outlined by statute."
2. **Notice does not remove the session from the statute.** *Modica*, 164 Wn.2d at 89: "Signs or automated recordings that calls may be recorded or monitored do not, in themselves, defeat a reasonable expectation of privacy." So the click cannot be defended as "then the conversation wasn't private."
3. **The one state whose legislature blessed written consent said so expressly.** Conn. Gen. Stat. §52‑570d(a)(1) offers written prior consent as an alternative; RCW 9.73.030 offers no such alternative. That contrast is the argument against reading one into Washington's text.

**What the sources support instead:** a **recorded spoken announcement at the very start of the recording, with the member's spoken assent captured on the same recording** — belt — **plus** a logged click acknowledgment taken before recording begins — braces. The click is not what makes it lawful; it is what proves informed consent under *Townsend*'s separate route if the announcement is ever challenged, and it satisfies Connecticut's §52‑570d(a)(1) and the "specifically informed"/"given warning" formulations in Oregon and Montana.

---

#### The exact consent text and placement

**Placement — four points, in this order:**

**① Pre‑session, in the calendar invite / confirmation email** (not a legal requirement anywhere found; it removes surprise and supports "reasonably effective manner"):

> This session will be recorded — both your screen and the audio — so you have a record of the settings you enter. Recording starts when the session starts and we will say so out loud at the beginning. If you would rather not be recorded, reply and we will run the session without a recording.

**② On screen, before the recorder starts — an affirmative, logged act (not a pre‑ticked box, not a banner):**

> **This session will be recorded.**
> We will record your screen and the audio of this session, including your voice, so that you and we have a record of the settings you enter.
> When the recording begins, we will say out loud that it is being recorded, and that announcement will be part of the recording.
> The recording is stored on your own machine. We will ask before we keep a copy.
> You can ask us to stop recording at any point, and we will stop.
>
> ☐ **I have read this and I consent to this session being recorded, including the audio.**
>
> [ Start recording ]  [ Continue without recording ]

Log: the exact text shown, the timestamp of the click, and the identity of the account. The log is corroboration; it is not the statutory hook.

**③ Spoken, as the first words *on* the recording — this is the operative act for Washington.** The recorder must already be running; the announcement must be inside the file. Read verbatim:

> "Before we start: I am recording this session — your screen and the audio, including both our voices. The recording begins now. Do you agree to being recorded?"

Then **wait for and capture the member's spoken answer.** Then:

> "Thank you — you have said yes, and that is on the recording. It is now [time] on [date]. I am [name], and my place of business is Washington State. If you want me to stop recording at any point, say so and I will stop."

Why each clause is there:
- *"I am recording this session"* — RCW 9.73.030(3): announcement "that such communication or conversation is about to be recorded," made "in any reasonably effective manner."
- *Announcement inside the file* — the §.030(3) proviso, and *Fields* slip op. at 24 ("as long as that announcement is included in the recording").
- *The member's spoken "yes" captured* — RCW 9.73.030(1)'s actual all‑party consent, and *Townsend*, 147 Wn.2d at 675, independent of §.030(3). Also satisfies Md. §10‑402(c)(3), Pa. §5704(4), N.H. 570‑A:2 I(a), Fla. §934.03(2)(d), 720 ILCS 5/14‑2(a)(2) ("consent of all other parties"), Conn. §52‑570d(a)(2).
- *Saying it out loud at all* — defeats "secretly" (Mass. G.L. c. 272 §99 B 4), "surreptitious" (720 ILCS 5/14‑2(a)(2); NRS 200.650), and "hidden device" (Mont. §45‑8‑213(1)(c)); satisfies "given warning" (Mont. §45‑8‑213(1)(c)(iii)) and "specifically informed" (ORS 165.540(1)(c)); and puts the session inside Cal. Penal Code §632(c)'s exclusion under *Flanagan*, 27 Cal. 4th at 774–77.
- *Stating the time and date* — evidentiary; not required by any provision found.

**④ If the session is paused and resumed, or a second file is opened, repeat ③ in full at the head of each file.** *Fields* (slip op. at 24) refused a recording that began mid‑conversation and accepted the companion recording that opened with an announcement. **One announcement does not cover a later file.**

**Two further design points the sources require, not optional:**
- **Anyone else who speaks is a "participant."** RCW 9.73.030(1)(b) requires consent of "all the persons engaged in the conversation." If a colleague joins, or a person in the member's household is audible, the announcement must be repeated and their assent captured, or the recording stopped.
- **Ask before the Company keeps a copy, and record the answer.** *Fowler*, 157 Wn.2d at 396 makes "intent to use the recordings in Washington" and agency the trigger that pulls an out‑of‑state recording back under RCW 9.73.030. If the Company's use is what the recording is for, design to Washington in every case rather than relying on the member's state being one‑party.

---

### Negative findings

1. **No Washington authority holds that a written or clicked electronic acknowledgment satisfies RCW 9.73.030 in place of a recorded announcement.** Searched: full‑text for `"said announcement shall also be recorded"` (7 hits, all reviewed) and for RCW 9.73.030(3) in Washington courts. The only statute found in this survey that expressly blesses written prior consent is Connecticut's §52‑570d(a)(1) — and its text is different from Washington's.
2. **No Washington authority was found on a *screen‑and‑audio software session* specifically.** The nearest analogues are *Townsend* (e‑mail/ICQ), *Roden* (text messages) and *Kipp* (a 10‑minute in‑person conversation). Washington reads the act broadly across new media (*Roden*, 179 Wn.2d at 905–06), so the absence is not a gap in coverage — but no case is on these facts.
3. **No authority found on whether an entity (as opposed to an individual) can be a "participant" for §.030(1) purposes.** The statute names "any individual, partnership, corporation, association" as potential *violators*; it says "participants"/"persons engaged" for consent. Not litigated in the cases read.
4. ***Commonwealth v. Byrd*, 235 A.3d 311 (Pa. 2020) could not be read.** pacourts.us returned HTTP 403 to both curl (five header variants) and WebFetch. Its holding on whether a party's knowledge of recording satisfies §5704(4)'s "prior consent" is directly analogous to the Washington question in (b) and is **unresolved in this report**.
5. **Vermont has no all‑party recording statute.** Its appearance on all‑party surveys rests on state‑constitutional decisions binding state actors, not private parties. This is a case where a "50‑state survey" proposition does not survive contact with the statute book — exactly the failure mode the commission warned about.
6. **The Oregon entry in most surveys is stale in two directions.** ORS 165.540(1)(a) is **one‑party** for telecommunications; and the 2023 Ninth Circuit panel decision striking §165.540(1)(c) was **superseded en banc** in January 2025.
7. **New Hampshire's RSA 570‑A:2 text quoted here is the 2001 version** as reproduced in *Czekalski* (2017). I could not reach gencourt.state.nh.us to check for later amendments. **Not status‑checked.**
8. **Nevada's NRS 200.620 text and NRS 200.650 text come from a reproduction (nevada.public.law, accessed 26 May 2025 per its own source line), not the official site** (leg.state.nv.us returns 403 to every client tried). The all‑party reading is judicial construction, not the literal text — the literal text says "one of the parties."
9. **Michigan's MCL 750.539c full text was never obtained.** Only the §539a(2) definition it depends on, via *LeGrow*. legislature.mi.gov returns 403 to curl and a TLS chain error to WebFetch.
10. **The federal‑floor proposition is not in the U.S. Code text.** It rests on the Senate Report (S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), 1968 U.S.C.C.A.N. at 2187) as quoted and applied in *Conklin*, 12 Cal. 3d at 272. I did not obtain the Senate Report itself; the quotation is verified only through the California Supreme Court's reproduction of it.
11. ***State v. Fields* status not conclusively established.** A CourtListener search of the Washington Supreme Court for the docket number returned no petition or review order. Absence of a hit is not proof of absence.

---

### Search log

| # | Source / query | Access | Date | Result |
|---|---|---|---|---|
| 1 | `app.leg.wa.gov/RCW/default.aspx?cite=9.73&full=true` | curl, plain GET, 223 KB | 5 Sep 2026 | Full chapter 9.73 — .030, .050, .060, .070, .080 extracted verbatim |
| 2 | `app.leg.wa.gov/RCW/default.aspx?cite=9A.20.021` and `...cite=9.92.020` | curl | 5 Sep 2026 | Gross‑misdemeanor sentencing; 9A.20.021 limited to Title 9A crimes, so 9.92.020 governs ch. 9.73 |
| 3 | `static.case.law/wash-2d/{119,129,147,153,157,164,179}/CasesMetadata.json` then `/html/*.html` | curl | 5 Sep 2026 | *Kadoranian*, *Clark*, *Townsend*, *Christensen*, *Lewis*, *Fowler*, *Modica*, *Kipp*, *Roden*. Star pagination recovered from `<a class="page-label">*NNN</a>` (the anchors carry the label as text, not only as `data-label`) |
| 4 | `static.case.law/wash-app/87/html/0177-01.html` | curl | 5 Sep 2026 | *In re Marriage of Farr* |
| 5 | CourtListener v4 search API, `q="said announcement shall also be recorded"` | curl, no auth needed | 5 Sep 2026 | 7 hits; identified *State v. Fields* (2024) as the only modern application |
| 6 | `courts.wa.gov/opinions/pdf/848119.pdf` → pdftotext | curl | 5 Sep 2026 | *State v. Fields* full text |
| 7 | `govinfo.gov/content/pkg/USCODE-2023-title18/.../sec2511.htm` | curl with declared UA + contact; **35,145 bytes** (size‑checked, not a block page) | 5 Sep 2026 | 18 U.S.C. §2511(2)(d) verbatim |
| 8 | `leginfo.legislature.ca.gov` §632; `leg.state.fl.us` §934.03 | curl | 5 Sep 2026 | Official text obtained |
| 9 | `mgaleg.maryland.gov/.../StatuteText?article=gcj&section=10-402` | WebFetch (page is JS‑rendered; curl returned only chrome) | 5 Sep 2026 | §10‑402(c)(3) verbatim |
| 10 | `cga.ct.gov/current/pub/chap_925.htm` (§52‑570d is in ch. 925, not ch. 899) | curl | 5 Sep 2026 | Full §52‑570d verbatim |
| 11 | `delcode.delaware.gov/title11/c005/sc07` and `/c024/sc01` | curl | 5 Sep 2026 | 11 Del. C. §1335(a)(4) and §2402(c)(4) verbatim |
| 12 | `oregon.public.law/statutes/ors_165.540`; `nevada.public.law/statutes/nrs_200.620`, `/nrs_200.650` | curl | 5 Sep 2026 | Reproductions used only because the official sites are unreachable; marked ◇ |
| 13 | `static.case.law/{mass/434, mich-app/258, mont/{232,317}, pa/619, nh/169, nev/124, cal-3d/12, cal-4th/27}` | curl | 5 Sep 2026 | *Hyde*, *LeGrow*, *Brown*, *DuBray*, *Cruttenden*, *Czekalski*, *McLellan*, *Conklin*, *Flanagan* |
| 14 | `illinoiscourts.gov/resources/72d2caf6…/file` (download_url located via CourtListener search API) | curl → pdftotext | 5 Sep 2026 | *People v. Davis*, 2021 IL 126435 — 720 ILCS 5/14‑2(a)(2) verbatim |
| 15 | `cdn.ca9.uscourts.gov/datastore/opinions/2025/01/07/22-35271.pdf` | curl → pdftotext | 5 Sep 2026 | *Project Veritas v. Schmidt* en banc; F.4th cite (125 F.4th 929) confirmed via a later 9th Cir. opinion's citation |

**Access notes / obstacles.**
- **Geo‑blocking is the dominant obstacle.** `ilga.gov`, `malegislature.gov`, `oregonlegislature.gov`, `leg.mt.gov`, `archive.legmt.gov`, `legis.state.pa.us`, `gencourt.state.nh.us` all refuse or time out at the TCP level from this machine (Denmark), over both https and http, via curl (sandboxed and unsandboxed), via WebFetch, and via a real Chrome tab (`ERR_CONNECTION_TIMED_OUT` confirmed on ilga.gov). `leg.state.nv.us`, `legislature.mi.gov`, `pacourts.us`, `law.justia.com`, `codes.findlaw.com`, `nysenate.gov`, `mass.gov`, `congress.gov` return **HTTP 403** bot blocks. `legislature.mi.gov` additionally fails TLS chain validation in WebFetch.
- **Chrome MCP was tried and abandoned:** navigation succeeds but `get_page_text` returns "Permission denied for reading page content on this domain" — a per‑domain extension permission I cannot grant.
- **Workaround adopted:** verbatim statutory text taken from published court opinions that reproduce it (a primary source), retrieved from `static.case.law` and from court PDFs whose URLs were located through the CourtListener v4 **search** API (which needs no auth; the `/opinions/` endpoint does, and the CourtListener HTML opinion pages return an empty `202`). All such entries are marked ◇, and the risk that the quoted text predates a later amendment is flagged per entry.
- **No product, project, methodology, person or domain names were used in any search string.** All queries were statutory citations, verbatim statutory phrases, or case names.


---

<br>

# S7 · ADDENDUM TRACK 7 — Subscription and auto-renewal law

I have what I need. Writing the report.

## S7 — Track 7: subscription and auto-renewal law

### Status of the FTC Negative Option Rule as of September 2026

**The 2024 "click-to-cancel" Rule is not in force. It was vacated in its entirety by the Eighth Circuit on 8 July 2025, and on 12 February 2026 the FTC formally recodified the pre-2024 Rule. The Rule now codified at 16 C.F.R. Part 425 is the 1973 "Use of Prenotification Negative Option Plans" Rule. A new ANPRM was published 13 March 2026; no replacement rule has been proposed or adopted as of 5 September 2026.**

Four primary sources, in sequence:

1. **89 FR 90476 (Nov. 15, 2024)** — final rule, "Rule Concerning Recurring Subscriptions and Other Negative Option Programs." Effective 14 Jan 2025; deferred compliance date 14 May 2025 for §§425.3–425.6, later extended to 14 July 2025.

2. **Custom Commc'ns, Inc. v. FTC, 142 F.4th 1060 (8th Cir. 2025)**, No. 24-3137 (consolidated with Nos. 24-3388, 24-3577, 25-1004), submitted 10 June 2025, **filed 8 July 2025**. Disposition, verbatim (slip op. at 22–23 = 142 F.4th at 1074–75):

> "While we certainly do not endorse the use of unfair and deceptive practices in negative option marketing, the procedural deficiencies of the Commission's rulemaking process are fatal here. The Rule does contain a severability provision which keeps the remaining provisions in effect if any provisions are stayed or determined to be invalid. 16 C.F.R. § 425.9. But vacatur of the entire Rule is appropriate in this case because of the prejudice suffered by Petitioners as a result of the Commission's procedural error. Given the breadth of the Rule's coverage, the party-specific vacatur requested by the Commission is not feasible. **Accordingly, we grant the petitions for review and vacate the Rule.**"

   The ground was §22 of the FTC Act: "because we hold the Commission's rulemaking process was procedurally insufficient and Petitioners demonstrated prejudicial error, we need not address Petitioners' other substantive challenges to the Rule" (slip op. at 22).

3. **91 FR 6507 (Feb. 12, 2026)**, "Revision of the Negative Option Rule, Withdrawal of the CARS Rule, Removal of the Non-Compete Rule To Conform These Rules to Federal Court Decisions," RIN 3084-AB60, effective on publication. At 6507:

> "After the 2024 Rule was published, businesses and industry groups asked four Federal circuit courts to review the Negative Option Rule. The Judicial Panel on Multidistrict Litigation consolidated their petitions in the U.S. Court of Appeals for the Eighth Circuit. … The Eighth Circuit found that the Commission's failure to issue a preliminary regulatory analysis was ``procedurally insufficient'' and vacated the 2024 Rule."

   And: "In light of the Eighth Circuit's vacatur, this final rule revises the Negative Option Rule to restore it in the form it existed before the 2024 Rule became effective. … This recodification includes changing the full name of the rule back to ``Use of Prenotification Negative Option Plans.''" (91 FR 6507 & n.8, relying on *Menorah Med. Ctr. v. Heckler*, 768 F.2d 292, 297 (8th Cir. 1985), and *Action on Smoking & Health v. CAB*, 713 F.2d 795, 797 (D.C. Cir. 1983)).

4. **eCFR, title 16 part 425, as of 2026-09-03** (versioner API): "PART 425—USE OF PRENOTIFICATION NEGATIVE OPTION PLANS … **Source: 91 FR 6509, Feb. 12, 2026**." Sections: 425.1 The rule; 425.2 [Reserved].

5. **91 FR 12318 (Mar. 13, 2026)**, RIN 3084-AB54 — **Advance notice of proposed rulemaking**, comments due 13 April 2026. "On July 8, 2025, shortly before businesses would need to comply with all parts of the Rule, the United States Court of Appeals for the Eighth Circuit vacated the amended Rule, holding that the Commission had failed to conduct the preliminary regulatory analysis required under section 22 of the FTC Act, 15 U.S.C. 57b-3(b)(1)." (91 FR 12318) and n.40: "The Eighth Circuit's vacatur reinstated the prior version of the Rule which was first promulgated in 1973. 38 FR 4896 (Feb. 22, 1973)." (91 FR 12322).

**Verification of "nothing since":** Federal Register API query filtered on 16 C.F.R. part 425, publication_date ≥ 2026-01-01, run 5 Sep 2026 → **count = 2** (the 12 Feb 2026 final rule and the 13 Mar 2026 ANPRM). No NPRM, no re-adoption.

---

### S7 authority register

#### (a) The FTC Negative Option Rule

**A1 · 16 C.F.R. Part 425 (current) — "Use of Prenotification Negative Option Plans"**
https://www.ecfr.gov/current/title-16/part-425 · Regulation · Source 91 FR 6509 (12 Feb 2026) · **Status: in force** · Relevance **5** (as a negative applicability finding).

Operative text, §425.1(a): "In connection with the sale, offering for sale, or distribution of **goods and merchandise** in or affecting commerce … it is an unfair or deceptive act or practice, for a seller in connection with the use of any negative option plan to fail to comply with the following requirements: (1) Promotional material shall clearly and conspicuously disclose the material terms of the plan …"

Scope definition, §425.1(c)(1): "**Negative option plan** refers to a contractual plan or arrangement under which a seller **periodically sends to subscribers an announcement which identifies merchandise** … it proposes to send to subscribers to such plan, and the subscribers thereafter receive and are billed for the merchandise identified in each such announcement, unless by a date or within a time specified by the seller … the subscribers … instruct the seller not to send the identified merchandise."

**Applies / does not apply: DOES NOT APPLY.** A flat monthly membership in a community is (i) a service, not "goods and merchandise," and (ii) not a prenotification plan — there is no per-period announcement of a proposed shipment. The FTC says so itself: 86 FR 60822, 60823 n.3 — "The Commission's Rule on the ``Use of Prenotification Negative Option Plans'' (16 CFR part 425) **only covers this type of negative option marketing**."

**Note also: Part 425 contains no definition of "seller."** The definitions at §425.1(c) run to nine terms — negative option plan, subscriber, contract-complete subscriber, promotional material, selection, announcement, form, return date, mailing date — and none defines the duty-bearer. This is a negative finding of some weight for (e).

**A2 · 89 FR 90476 (Nov. 15, 2024) — the vacated 2024 Rule**
https://www.federalregister.gov/d/2024-25534 · Legislative rule · **Status: VACATED in its entirety, 8 July 2025; text removed from the CFR 12 Feb 2026.** Relevance **4** — not law, but it is the FTC's most detailed published statement of what it considers §5 and ROSCA to require, and the ANPRM signals the agency intends to return to this ground.

Quoted only as the agency's position, not as law:

- §425.2 (89 FR 90537–38): "**Negative Option Seller** means the person selling, offering, charging for, or otherwise marketing a good or service with a Negative Option Feature." · "**Charge, Charged, or Charging** means any attempt to collect money or other consideration from a consumer, including but not limited to causing Billing Information to be submitted for payment …"
- §425.5(a) (89 FR 90538): "… it is a violation of this part … for a Negative Option Seller to fail to obtain the consumer's express informed consent before Charging the consumer. In obtaining such expressed informed consent, the Negative Option Seller must: (1) **Obtain the consumer's unambiguously affirmative consent to the Negative Option Feature offer separately from any other portion of the transaction**; (2) Not include any information that interferes with, detracts from, contradicts, or otherwise undermines the ability of consumers to provide their express informed consent …; and (3) Keep or maintain verification of the consumer's consent for at least three years."
- §425.6(b)–(c) (89 FR 90539): "The simple mechanism … **must be at least as easy to use as the mechanism the consumer used to consent** … At a minimum, the Negative Option Seller must provide the simple mechanism … **through the same medium the consumer used to consent** … In no event shall a consumer be required to interact with a live or virtual representative (such as a chatbot) to cancel if the consumer did not do so to consent."
- §425.4(a) (89 FR 90538): disclosure "**prior to obtaining the consumer's Billing Information, all Material terms**," including that charges "will increase after any applicable trial period ends."

**A3 · 91 FR 12318 (Mar. 13, 2026) — ANPRM, RIN 3084-AB54** · **Status: comment period closed 13 Apr 2026; no NPRM as of 5 Sep 2026.** Relevance **3**. Establishes that the docket is live and that the FTC states "the record compiled during that rulemaking, as well as ongoing consumer complaints and recent enforcement cases, show continued unlawful negative option marketing practices" (91 FR 12318), and that "since January 2025, the Commission has initiated five cases alleging negative option misconduct, and has approved six settlements" (91 FR 12322).

**A4 · 90 FR 55701 (Dec. 3, 2025)** — "Petition for Rulemaking of Consumer Federation of America and the American Economic Liberties Project" · Proposed Rule/notice · Relevance **2**. Listed here as verified docket context only (metadata verified via FR API; document text not read).

**A5 · 86 FR 60822 (Nov. 4, 2021) — Enforcement Policy Statement Regarding Negative Option Marketing**
https://www.federalregister.gov/d/2021-24094 · Policy statement · **Status: not vacated; remains the FTC's published enforcement guidance.** Relevance **5** — with the 2024 Rule gone, this plus ROSCA is the operative federal framework.

Self-limiting language, 86 FR 60822 n.1: "This Policy Statement does not confer any rights on any person and does not operate to bind the FTC or the public. In any enforcement action, the Commission must prove the challenged act or practice violates one or more existing statutory or regulatory requirements."

Operative guidance, 86 FR 60824–25: "**Disclosures:** ROSCA requires marketers to clearly and conspicuously disclose the material terms of the transaction." Minimum terms listed: any material term of the underlying product necessary to prevent deception; "That consumers will be charged for the good or service, **or that those charges will increase after any applicable trial period ends**, and, if applicable, that the charges will be on a recurring basis, unless the consumer timely takes steps to prevent or stop such charges"; each deadline; the amount or range and frequency; the date each charge will be submitted; "All information necessary to cancel the contract." And on placement: disclosures related to the negative option feature "should … appear **immediately adjacent to the means of recording the consumer's consent** for the negative option feature." Note n.35: "Any reference to ROSCA in these principles applies only to internet transactions, consistent with that statute's coverage."

#### (b) ROSCA — 15 U.S.C. §8401 et seq.

**B1 · 15 U.S.C. §8403 — "Negative option marketing on the Internet"**
govinfo, USCODE-2024-title15-chap110-sec8403 · Statute · Pub. L. 111-345, §4, Dec. 29, 2010, 124 Stat. 3620 · **Status: in force, unamended.** Relevance **5**.

Verbatim, in full:

> "It shall be unlawful for any person to charge or attempt to charge any consumer for any goods or services sold in a transaction effected on the Internet through a negative option feature (as defined in the Federal Trade Commission's Telemarketing Sales Rule in part 310 of title 16, Code of Federal Regulations), unless the person—
> (1) provides text that clearly and conspicuously discloses all material terms of the transaction before obtaining the consumer's billing information;
> (2) obtains a consumer's express informed consent before charging the consumer's credit card, debit card, bank account, or other financial account for products or services through such transaction; and
> (3) provides simple mechanisms for a consumer to stop recurring charges from being placed on the consumer's credit card, debit card, bank account, or other financial account."

**ROSCA is a statute. It was not before the Eighth Circuit, was not vacated, was not stayed, and is entirely unaffected by the fate of the Rule.** *Custom Communications* reviewed a rule promulgated under §18 of the FTC Act for failure to comply with §22 of the FTC Act; nothing in the opinion touches Pub. L. 111-345. **ROSCA §8403 is the stable federal floor for this configuration, and it is the only federal negative-option provision that actually reaches a flat monthly online membership.**

**B2 · 16 C.F.R. §310.2(w) — the definition ROSCA incorporates by reference**
eCFR, as of 2026-09-03 · **Status: in force.** Relevance **5**.

> "**Negative option feature** means, in an offer or agreement to sell or provide any goods or services, a provision under which the customer's silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer."

**Applies.** A membership that continues and rebills each month until the member cancels is squarely within this definition. Note also §310.2(ee): "**Seller** means any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration" — but this definition is expressly confined to telemarketing transactions and is *not* incorporated into §8403; §8403 incorporates only the definition of "negative option feature."

**B3 · 15 U.S.C. §8404 — Enforcement by Federal Trade Commission**
Pub. L. 111-345, §5 · **Status: in force.** Relevance **4**.

> "(a) **In general.** Violation of this chapter or any regulation prescribed under this chapter shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices. The Federal Trade Commission shall enforce this chapter in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this chapter.
> (b) **Penalties.** Any person who violates this chapter or any regulation prescribed under this chapter shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated in and made part of this chapter.
> (c) **Authority preserved.** Nothing in this section shall be construed to limit the authority of the Commission under any other provision of law."

The practical consequence of (a): because a ROSCA violation is treated as a violation of a §18 rule, it carries civil penalty exposure under 15 U.S.C. §45(m)(1)(A) and redress under §19 — **without** the FTC having to survive a §18 rulemaking challenge. That is why the vacatur of the Rule changes far less than it appears to.

**B4 · 15 U.S.C. §8402 — "Prohibitions against certain unfair and deceptive Internet sales practices"**
Pub. L. 111-345, §3 · **Status: in force.** Relevance **4** — for its *definitional architecture*, which is the only place Congress has drawn the line between the party that owns the customer relationship and a third party charging through it.

> "(d) **Definitions.** In this section: (1) **Initial merchant.** The term ``initial merchant'' means a person that has obtained a consumer's billing information directly from the consumer through an Internet transaction initiated by the consumer. (2) **Post-transaction third party seller.** The term ``post-transaction third party seller'' means a person that— (A) sells, or offers for sale, any good or service on the Internet; (B) solicits the purchase of such goods or services on the Internet through an initial merchant after the consumer has initiated a transaction with the initial merchant; and (C) is not— (i) the initial merchant; (ii) a subsidiary or corporate affiliate of the initial merchant; or (iii) a successor of an entity described in clause (i) or (ii)."

And §8402(b): "It shall be unlawful for an initial merchant to disclose a credit card, debit card, bank account, or other financial account number, or to disclose other billing information that is used to charge a customer of the initial merchant, to any post-transaction third party seller for use in an Internet-based sale …"

**Applies / does not apply: DOES NOT APPLY on these facts** — §8402 targets the "data pass" upsell pattern, where a second, unaffiliated seller is inserted after the consumer's transaction with the first. Here the member is enrolling in one membership, not being passed to an unrelated upsell. But the definitions matter for (e): Congress's chosen line is *who obtained the billing information directly from the consumer* and *who sells or offers for sale*, not who moves the money.

#### (c) Washington

**⚠ C1 · NEGATIVE FINDING — RCW ch. 19.56 is not an auto-renewal statute, and Washington appears to have no dedicated auto-renewal statute at all.**

The commission's premise ("Washington's auto-renewal statute — RCW 19.56 (2022)") does not hold up against the source it cites. `app.leg.wa.gov/RCW/default.aspx?cite=19.56&full=true`, retrieved 5 Sep 2026, returns:

> "**Chapter 19.56 RCW — UNSOLICITED GOODS**
> 19.56.010 Newspaper mailed without authority is gift.
> 19.56.020 Unsolicited goods or services as gifts.
> 19.56.030 Violation—Application of consumer protection act."

RCW 19.56.020 verbatim (history: "[1992 c 43 s 1; 1967 c 57 s 1.]" — **not 2022**):

> "If unsolicited goods or services are provided to a person, the person has a right to accept the goods or services as a gift only, and is not bound to return the goods or services. **Goods or services are not considered to have been solicited unless the recipient specifically requested, in an affirmative manner, the receipt of the goods or services according to the terms under which they are being offered.** Goods or services are not considered to have been requested if a person fails to respond to an invitation to purchase the goods or services and the goods or services are provided notwithstanding. If the unsolicited goods or services are either addressed to or intended for the recipient, the recipient may use them or dispose of them in any manner without any obligation to the provider, and in any action for goods or services sold and delivered, or in any action for the return of the goods, it is a complete defense that the goods or services were provided voluntarily and that the defendant did not affirmatively order or request the goods or services, either orally or in writing."

RCW 19.56.030: "Violation of RCW 19.56.020 is a matter affecting the public interest for the purpose of applying chapter 19.86 RCW. … A violation of RCW 19.56.020 constitutes an unfair or deceptive act or practice in trade or commerce for the purposes of applying chapter 19.86 RCW. [1992 c 43 s 2.]"

RCW 19.56.020 is the Washington analogue of Cal. Bus. & Prof. Code §17603 (goods supplied without affirmative consent are an unconditional gift), which is almost certainly how it found its way into a fifty-state table as "Washington's auto-renewal law." **It has real operative bite on these facts — it makes affirmative, terms-specific request the condition of any payment obligation for services — but it is not an ARL and imposes no disclosure, acknowledgment, cancellation-mechanism or trial-conversion-notice duty.**

**Method for the negative finding** (so it can be re-tested): I enumerated every chapter heading of RCW Title 19 from `app.leg.wa.gov/RCW/default.aspx?Cite=19` (19.16 through 19.450, including the newest chapters — 19.435 AI disclosures, 19.440 AI companion chatbots, 19.450 transaction rounding). **No chapter concerns automatic renewal, subscriptions or continuous service.** I then pulled the complete section list and text of ch. 19.86 (Consumer Protection Act, §§19.86.010–19.86.920) — **no automatic-renewal section**. The Washington Legislature's full-text search endpoint is a JavaScript SPA and returned no machine-readable results (see search log); I therefore state this as a well-supported negative finding rather than an exhaustive proof.

**C2 · RCW 19.86.020 + 19.86.010(2) — Washington CPA, and its reach over an out-of-state seller**
`app.leg.wa.gov/RCW/default.aspx?cite=19.86&full=true` · **Status: in force.** Relevance **5**.

- §19.86.020: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. [1961 c 216 s 2.]"
- §19.86.010(2): "``Trade'' and ``commerce'' shall include the sale of assets or services, and **any commerce directly or indirectly affecting the people of the state of Washington**."
- §19.86.160 (Personal service of process outside state): "Personal service of any process in an action under this chapter may be made upon any person outside the state if such person has engaged in conduct in violation of this chapter **which has had the impact in this state which this chapter reprehends**. Such persons shall be deemed to have thereby submitted themselves to the jurisdiction of the courts of this state …"

**Applies.** Two independent routes: the technical lead's place of business is Washington, and any Washington members bring the conduct within §19.86.010(2) regardless of where the Company sits.

Remedies: §19.86.090 — private action, "actual damages … together with the costs of the suit, including a reasonable attorney's fee," with discretionary trebling "PROVIDED, That such increased damage award for violation of RCW 19.86.020 may not exceed twenty-five thousand dollars." §19.86.093 — public-interest element may be established where the act "(3)(a) Injured other persons; (b) had the capacity to injure other persons; or (c) has the capacity to injure other persons." §19.86.140 — "Every person who violates RCW 19.86.020 shall forfeit and pay a civil penalty of not more than $7,500 for each violation" (as amended 2024 c 256 s 2).

#### (d) The other state auto-renewal laws

**D1 · California — Cal. Bus. & Prof. Code §§17600–17606, "Automatic Purchase Renewals" (Art. 9, ch. 1, pt. 3, div. 7)**
leginfo.legislature.ca.gov · **Status: in force. Amended by AB 2863, Stats. 2024, ch. 515, §§1–2, effective January 1, 2025**, with a transition rule: §§17601(b) and 17602(j) — "The amendments made to this section by the act adding this subdivision **shall only apply to a contract entered into, amended, or extended under this article on or after July 1, 2025**." Relevance **5**.

Duty-bearer, §17602(a): "It is unlawful for **any business that makes an automatic renewal offer or continuous service offer to a consumer in this state** to do any of the following:"

- **(a)(1) pre-purchase disclosure + trial explanation:** "Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner **before the subscription or purchasing agreement is fulfilled and in visual proximity** … to the request for consent to the offer. **If the offer also includes a free gift or trial, the offer shall include a clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription or purchasing agreement pricing will change upon conclusion of the trial.**"
- **(a)(2) consent, expressly covering third-party billing and promotional pricing:** "**Charge the consumer's credit or debit card, or the consumer's account with a third party**, for an automatic renewal or continuous service without first obtaining the consumer's affirmative consent to the agreement containing the automatic renewal offer terms …, **including the terms of an automatic renewal offer … that is made at a promotional or discounted price for a limited period of time**."
- **(a)(3) acknowledgment:** "Fail to provide an acknowledgment that includes the automatic renewal offer terms …, cancellation policy, and information regarding how to cancel **in a manner that is capable of being retained by the consumer**. If the … offer includes a free gift or trial, the business shall also disclose in the acknowledgment how to cancel, and allow the consumer to cancel, … before the consumer pays."
- **(a)(4)–(a)(7):** express affirmative consent; no contract information that "interferes with, detracts from, contradicts, or otherwise undermines" consent; "**Fail to maintain verification of the consumer's affirmative consent for at least three years, or one year after the contract is terminated, whichever period is longer**"; no misrepresentation of "any material fact related to the transaction … or any material fact related to the underlying good or service."
- **(a)(8)+(b) trial-conversion / promotional-price notice:** notice required "if either of the following is true": "**(1) The consumer accepted a free gift or trial, lasting for more than 31 days … or the consumer accepted an automatic renewal offer … at a promotional or discounted price, and the applicability of that price was more than 31 days. (A) The notice shall be provided at least 3 days before and at most 21 days before the expiration** of the predetermined period of time for which the free gift or trial, or promotional or discounted price, applies." "(2) … an initial term of one year or longer … the notice shall be provided at least 15 days and not more than 45 days before the … offer renews."
- **(d)(1) online cancellation:** "a business that allows a consumer to accept an automatic renewal or continuous service offer online **shall allow a consumer to terminate … exclusively online, at will, and without engaging any further steps that obstruct or delay** … in the form of either of the following: (A) A prominently located direct link or button … (B) By an immediately accessible termination email formatted and provided by the business …"
- **(e)(2) the save-offer rule:** the business may display a retention offer only if it "simultaneously displays a prominently located and continuously and proximately displayed direct link or button entitled ``**click to cancel**,'' or words to that effect."
- **(f) same medium:** cancellation "shall be available to the consumer **in the same medium that the consumer used in the transaction** that resulted in the activation … or the same medium in which the consumer is accustomed to interacting with the business."
- **(g)(2) fee-change notice:** "In the case of a change in the fee charged under an existing automatic renewal or continuous service offer …, **including changes the consumer affirmatively consented to in an existing plan or arrangement**, the business shall provide, **no less than 7 days and no more than 30 days before the fee change takes effect**," clear and conspicuous notice of the fee change plus how to cancel.
- **(h) annual reminder:** "A business shall send an annual reminder to a consumer under an annual automatic renewal agreement **or continuous service agreement** … in the same medium that resulted in the activation," disclosing the product, "the frequency and amount of charges," and "the means to cancel."

Enforcement, §17604: "(a) Notwithstanding Section 17534, a violation of this article shall not be a crime. However, **all available civil remedies that apply to a violation of this article may be employed.** (b) **If a business complies with the provisions of this article in good faith, it shall not be subject to civil remedies.**" §17603: goods sent without affirmative consent "shall for all purposes be deemed an **unconditional gift** to the consumer." §17605 exemptions (CPUC/FCC/FERC-regulated, insurance, alarm operators, banks and credit unions, service contract sellers) — **none applies here.**

**D2 · New York — N.Y. Gen. Bus. Law §527-a, "Unlawful practices"**
nysenate.gov/legislation/laws/GBS/527-A, retrieved 5 Sep 2026 · **Status: in force.** ⚠ **The official page does not display an enactment/amendment history line; I could not verify the session-law dates from a primary source (see negative findings).** Relevance **5**.

Duty-bearer, §527-a(1): "It shall be unlawful for **any business making an automatic renewal or continuous service offer to a consumer in this state** to:"

- **a. pre-consent disclosure + trial/temporary-price explanation:** "fail to present to the consumer, in a clear and conspicuous manner, the material terms of any automatic renewal offer …, including but not limited to a description of the product or service subject to renewal, the amount of the costs that will be charged, the frequency of charges, the deadline by date or frequency by which the consumer must act to prevent or stop further charges, and cancellation mechanisms described in paragraphs d and d-1 …, **before consent to the offer or billing information has been requested** and in visual proximity … to the request for consent to the offer. **If the offer also includes a free gift or trial, or the price is temporary, the offer shall include a clear and conspicuous explanation of how and when the price will change and the price or prices that will subsequently be charged to the consumer**;"
- **b. consent, expressly covering third-party billing:** "**charge the consumer or the consumer's account with a third party** for the initial term … without first obtaining the consumer's affirmative consent to the agreement containing the … terms …, **including the terms of an automatic renewal offer … that is made at a promotional or discounted price for a limited period of time**;"
- **b-1. price-increase rule:** charging an increased or previously undisclosed price is unlawful "without either: (i) first obtaining the consumer's affirmative consent to such increased price; or (ii) **allowing the consumer to cancel … anytime within, at least, fourteen days after such charge and refund the consumer in the amount equivalent to the price of the remaining term of the service … on a pro rata basis**."
- **c. acknowledgment:** "fail to provide a notice **promptly following affirmative consent, in a manner that is capable of being retained by the consumer**," containing (i) terms; (ii) amount of costs; (iii) frequency; (iv) the deadline to act; (v) the cancellation mechanisms.
- **d. / d-1. cancellation:** "fail to provide the consumer with the option to cancel at any time using a simple cancellation mechanism that is **as easy to use as the mechanism that the consumer used to provide consent and that is through the same medium** that the consumer used to provide consent;" and "fail to provide the consumer with the option to cancel, at any time **through all mediums by which the business allows a consumer to provide affirmative consent** …"
- **e. obstruction:** "impose unreasonable or unlawful conditions upon, refuse to acknowledge, obstruct or unreasonably delay cancellation …" — with (i) enumerating "hanging up on consumers who call to cancel, providing false information about how to cancel, misrepresenting the consequences or costs of cancellation …"
- **f. renewal reminder:** required only for "an initial paid term of **one year or longer**, provided that such automatic renewal … renews for a paid term of six months or longer, **at least fifteen days before, but not more than forty-five days before, the cancellation deadline**."
- **g. material-change notice:** "at least **five business days prior, but no more than thirty days prior**, to the date of the change."
- **h. trial-conversion notice:** required "if the automatic renewal or continuous service offer includes a **free gift or trial for a period of more than a month**, followed by an upcoming … charge, **at least three days before but not more than twenty-one days before the cancellation deadline for the first chargeable period** in the manner selected by the consumer, including text, email, app notification or any other notification channel offered by the business. Such notice shall include instructions on how to cancel such renewal charge."

Enforcement, §527-a(3): AG injunction "without requiring proof that any person has, in fact, been injured or damaged thereby," restitution, and "**a civil penalty of not more than one hundred dollars for a single violation and not more than five hundred dollars for multiple violations resulting from a single act or incident. A knowing violation … shall be punishable by a civil penalty of not more than five hundred dollars for a single violation and not more than one thousand dollars for multiple violations …**" plus a bona fide error defence: "No business shall be deemed to have violated … if such business shows, by a preponderance of the evidence, that the violation was not intentional and resulted from a bona fide error made notwithstanding the maintenance of procedures reasonably adopted to avoid such error." **No private right of action is conferred by §527-a itself.** §527-a(4) exemptions (franchises issued by a political subdivision; DFS-regulated entities; security alarm operators; banks/credit unions; service contract sellers) — **none applies here.**

**D3 · Illinois — 815 ILCS 601/, Automatic Contract Renewal Act**
ilga.gov, ActID 2363 · **Status: in force. §601/10 as amended by P.A. 102-517, eff. 1-1-22; P.A. 103-70, eff. 1-1-24; P.A. 103-919, eff. 1-1-25. §601/5 as amended by P.A. 102-558, eff. 8-20-21; P.A. 103-70, eff. 1-1-24.** Relevance **5**.

⚠ **The commission's citation, 815 ILCS 505/2DDD, is wrong.** That section of the Consumer Fraud and Deceptive Business Practices Act is "**Alternative gas suppliers**" (P.A. 95-1051, eff. 4-10-09) and has nothing to do with subscriptions. Illinois' automatic-renewal law is a free-standing act, 815 ILCS 601/.

Duty-bearer, §601/10(a): "**Any person, firm, partnership, association, or corporation that sells or offers to sell any products or services to a consumer pursuant to a contract, where such contract automatically renews unless the consumer cancels the contract, shall:**

> (i) disclose the automatic renewal offer terms clearly and conspicuously in the contract **before the subscription or purchasing agreement is fulfilled and in visual proximity** … to the request for consent to the offer;
> (ii) **not charge the consumer's credit or debit card or other payment mechanism** for an automatic renewal service **without first obtaining the consumer's consent** to the contract containing the automatic renewal offer terms;
> (iii) provide an **acknowledgment** that includes the automatic renewal offer terms, cancellation policy, and information regarding how to cancel, which may be accomplished by **linking to a resource that provides instructions that account for different platforms and services**, in a manner that is capable of being retained by the consumer; and
> (iv) if the offer includes a free gift or trial, disclose how to cancel the contract … and **allow the consumer to cancel before the consumer pays** for the good or services."

**§601/10(a-5) — the trial-conversion notice, and the strictest threshold of the three states:** "Any person … that sells or offers to sell any products or services to a consumer pursuant to a contract that **includes a free trial or a promotional period of the product or service that lasts 15 days or longer**, where such contract automatically renews …, **shall notify the consumer during the free trial or the promotional period no less than 3 days before the cancellation deadline** as described by the automatic renewal offer terms. The person … shall send the notice in a method in which the consumer is accustomed to interacting with the person …"

§601/10(b) — 30-to-60-day renewal notice, but only where "such contract term is a specified term of **12 months or more**, and where such contract automatically renews for a specified term of **more than one month**."

§601/10(b-5) — "A person … that makes an automatic renewal offer or continuous service offer **online** shall provide a toll-free telephone number, electronic mail address, a postal address if the seller directly bills the consumer, or another cost-effective, timely, and easy-to-use mechanism for cancellation … **A consumer who accepts an automatic renewal or continuous service offer online must be allowed to terminate the automatic renewal or continuous service exclusively online**, which may include a termination email formatted and provided by the business that a consumer can send to the business without additional information, or a link to a website or other online service consumers can use to cancel."

§601/10(c) — safe harbour: no liability "if such person … demonstrates that, **as part of its routine business practice**: (i) it has established and implemented **written procedures** to comply with this Act and enforces compliance with the procedures; (ii) any failure to comply … is the result of error; and (iii) where an error has caused a failure to comply …, it provides **a full refund or credit** for all amounts billed to or paid by the consumer from the date of the renewal until the date of the termination …"

§601/15 — "A violation of this Act constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act." (815 ILCS 505 — which carries a **private right of action** at 815 ILCS 505/10a as well as AG enforcement.)

§601/20 applicability: "(c) This Act does not apply to business-to-business contracts. (d) … does not apply to banks, trust companies, savings and loan associations, savings banks, or credit unions …" Definitions at §601/5 include "``**Contract**'' means a written agreement between 2 or more parties" and "``**Parties**'' includes individuals and other legal entities, but does not include the federal government, this State or another state, or a unit of local government." **There is no definition of "seller."**

**D4 · Vermont — 9 V.S.A. §2454a, "Consumer contracts; automatic renewal"** — added as a *materially stricter* comparator, and verified.
legislature.vermont.gov/statutes/section/09/063/02454a · **Status: in force. (Added 2017, No. 179 (Adj. Sess.), §1, eff. July 1, 2019; amended 2019, No. 89 (Adj. Sess.), §6.)** Relevance **3**.

> "(a) A contract between a consumer and a seller or a lessor **with an initial term of one year or longer that renews for a subsequent term that is longer than one month** shall not renew automatically unless: (1) the contract states clearly and conspicuously the terms of the automatic renewal provision in plain, unambiguous language **in bold-face type**; (2) **in addition to accepting the contract, the consumer takes an affirmative action to opt in to the automatic renewal provision**; and (3) … the seller or lessor provides a written or electronic notice … not less than 30 days and not more than 60 days before …"

Vermont is the only one of the four that requires a **separate opt-in act distinct from acceptance of the contract**. **Applies / does not apply: DOES NOT APPLY** to a flat monthly membership — the trigger is an initial term of one year or longer renewing for more than a month. Included because it is the ceiling case: if the configuration ever offers an annual plan, Vermont's separate opt-in and bold-face requirements bite.

Enforcement: §2454a(c) — "A person who violates a provision of this section commits an unfair and deceptive act in commerce in violation of section 2453 of this title" (Vermont Consumer Protection Act, which carries a private right of action and statutory damages).

**Fifty-state survey not attempted, per instruction.** California, New York and Illinois were selected because each expressly reaches a business making an offer "**to a consumer in this state**" (CA, NY) or selling "to a consumer" without a locus limitation (IL) — i.e. each reaches an out-of-state seller on the strength of in-state subscribers alone. **None of the four contains a physical-presence or in-state-nexus requirement.**

---

### State requirements table

| State | Citation | Pre-purchase disclosure | Affirmative consent | Acknowledgment | Cancellation | Renewal / trial notice | Enforcement |
|---|---|---|---|---|---|---|---|
| **CA** | Bus. & Prof. Code §§17600–17606 (AB 2863, Stats. 2024 ch. 515, eff. 1 Jan 2025; amendments apply to contracts entered/amended/extended on or after **1 July 2025**) | §17602(a)(1) — clear & conspicuous, in visual proximity to the consent request, **before the agreement is fulfilled**; trial offers must explain the post-trial price | §17602(a)(2), (a)(4) — express affirmative consent, expressly including where the charge runs to "the consumer's account with a third party" and including promotional-price offers; **retain verification 3 years / 1 year post-termination** (a)(6) | §17602(a)(3) — retainable acknowledgment with terms, cancellation policy, how to cancel; for trials, must allow cancellation before payment | §17602(c)–(f) — online-enrolled ⇒ **terminate exclusively online**, link/button or pre-formatted email; "click to cancel" button must sit alongside any save offer; same medium as enrolment | §17602(a)(8)+(b)(1) — **3–21 days before** a trial/promotional price expires, **only if that price applied for more than 31 days**; (b)(2) 15–45 days for terms ≥1 year; **(g)(2) fee change: 7–30 days before**; **(h) annual reminder for continuous service** | §17604 — "all available civil remedies"; **good-faith compliance defence** (b); §17603 unconditional gift; UCL/CLRA private actions available |
| **NY** | Gen. Bus. Law §527-a *(enactment date not verified from the official source)* | §527-a(1)(a) — clear & conspicuous material terms **before consent or billing information is requested**; trial or temporary price ⇒ explain "how and when the price will change and the price or prices that will subsequently be charged" | §527-a(1)(b) — affirmative consent before charging "the consumer or the consumer's account with a third party," including promotional-price offers; **(b-1)** price increases require fresh consent **or** a 14-day cancel-with-pro-rata-refund window | §527-a(1)(c) — notice "promptly following affirmative consent," retainable, with terms, costs, frequency, deadline, cancellation mechanisms | §527-a(1)(d), (d-1), (e) — as easy as consent **and** in the same medium **and** through **all** mediums by which consent may be given; no obstruction, no misrepresenting the consequences of cancelling | §527-a(1)(h) — **3–21 days before** the cancellation deadline for the first chargeable period, if a free gift or trial lasted **more than a month**; (f) 15–45 days for initial paid terms ≥1 year renewing ≥6 months; (g) material change 5 business days–30 days | §527-a(3) — AG injunction without proof of injury, restitution; **civil penalties $100/$500; knowing $500/$1,000**; bona fide error defence. **No private right of action in the section** |
| **IL** | 815 ILCS 601/ (P.A. 103-70 eff. 1-1-24; P.A. 103-919 eff. 1-1-25) | §601/10(a)(i) — automatic renewal offer terms clearly & conspicuously **in the contract**, before fulfilment, in visual proximity to the consent request | §601/10(a)(ii) — no charge to "credit or debit card or other payment mechanism" without first obtaining consent to the contract containing the terms | §601/10(a)(iii) — retainable acknowledgment; may be satisfied by **linking to a resource that accounts for different platforms and services** | §601/10(b-5) — online enrolment ⇒ **terminate exclusively online**; plus toll-free number / email / postal address / other easy mechanism | **§601/10(a-5) — 3 days before the cancellation deadline where a free trial or promotional period lasts 15 days or longer** (the tightest trigger of the three); (b) 30–60 days only for terms ≥12 months renewing >1 month | §601/15 — unlawful practice under the Consumer Fraud Act ⇒ AG action **and private right of action (815 ILCS 505/10a)**; §601/10(c) written-procedures + full-refund safe harbour |
| **WA** | **No auto-renewal statute found.** RCW 19.86.020 (CPA) + RCW 19.56.020 (unsolicited goods) | — (general §5-style deception standard only) | RCW 19.56.020 — services "are not considered to have been solicited unless the recipient **specifically requested, in an affirmative manner**, the receipt of the goods or services **according to the terms under which they are being offered**" | — | — | — | RCW 19.86.090 — private action, actual damages, fees, treble capped at $25,000; §19.86.140 civil penalty up to $7,500/violation; §19.86.160 long-arm; §19.56.030 makes a §19.56.020 violation a per se CPA violation affecting the public interest |
| **VT** *(comparator)* | 9 V.S.A. §2454a | (a)(1) bold-face, plain language | (a)(2) **separate affirmative opt-in in addition to accepting the contract** | — | (b)(2) online enrolment ⇒ terminate exclusively online | (a)(3) 30–60 days | (c) per se unfair/deceptive act under 9 V.S.A. §2453 · **Trigger: initial term ≥1 year renewing >1 month — does not reach a monthly membership** |

---

### (e) Who is the "seller" when billing runs through a third party's platform?

This is answered from definitional text and enforcement practice, not commentary. Five strands.

**E1 · The statutes place the duty on the party that *offers and sells*, and expressly contemplate that someone else moves the money.**

- ROSCA §8403: "any person to **charge or attempt to charge** any consumer for any goods or services sold in a transaction effected on the Internet through a negative option feature." The operative verb is *charge*, not *process*; and §8403(1) fixes the disclosure duty on the party who obtains "the consumer's billing information."
- ROSCA §8402(d)(1) defines "initial merchant" as "a person that has **obtained a consumer's billing information directly from the consumer** through an Internet transaction initiated by the consumer."
- Cal. §17602(a): the duty runs to "any **business that makes** an automatic renewal offer or continuous service offer to a consumer in this state" — and §17602(a)(2) makes it unlawful to "Charge the consumer's credit or debit card, **or the consumer's account with a third party**," which shows the legislature contemplated third-party billing **without** shifting the duty to the third party.
- N.Y. §527-a(1): "any **business making** an automatic renewal or continuous service offer to a consumer in this state," with the same "or the consumer's account with a third party" in paragraph b.
- 815 ILCS 601/10(a): "Any person, firm, partnership, association, or corporation that **sells or offers to sell** any products or services to a consumer pursuant to a contract, where such contract automatically renews."

**E2 · Negative findings on definitions.** None of the following defines the duty-bearer:
- **16 C.F.R. §425.1(c)** (the Rule now in force) — nine definitions, **no definition of "seller."**
- **Cal. Bus. & Prof. Code §17601(a)** — six definitions ("automatic renewal," "automatic renewal offer terms," "clear and conspicuous," "consumer," "continuous service," "free-to-pay conversion"). **There is no definition of "business."** The only definition on the consumer side is §17601(a)(4): "``Consumer'' means any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes."
- **N.Y. Gen. Bus. Law §527-a** — subdivisions 1 through 4 comprise prohibitions, remedies and exemptions. **No definitions subdivision; "business" is undefined.**
- **815 ILCS 601/5** — defines "automatic renewal offer terms," "clear and conspicuous," "contract" and "parties." **No definition of "seller."**
- **16 C.F.R. §310.2(ee)** defines "Seller," but only "in connection with a telemarketing transaction," and §8403 incorporates only §310.2(w).

**Consequence:** in every instrument that governs this configuration, the duty-bearer is identified functionally — who offers, who sells, who charges — and never by status. There is no definitional hook a contract could attach to.

**E3 · The FTC's own statement on platforms, payment intermediaries and contractual allocation.**
Source: 89 FR 90476, 90487 (Nov. 15, 2024). ⚠ **Status caveat: the *rule* this preamble accompanied was vacated. The preamble is not a rule and was not itself vacated, but its weight is that of an agency explanation in a rulemaking that failed on procedural grounds. Treat as the FTC's stated view, not as law.** Relevance **5** — nothing else in the primary record addresses the question this directly.

Industry asked for exactly the allocation the configuration invites. The Marketplace Industry Association asked the Commission to "clarify that where there are third-party payment platforms managing Subscriptions on behalf of businesses … that such Third Party Subscription Managers be **legally responsible and legally liable** for compliance … As such, the Association requests that the Commission make clear that Third Party Subscription Managers be responsible for compliance with the proposed Rule, including any penalties for noncompliance." (89 FR 90487 n.137). N/MA asked the Commission to "make clear that when a sale with a negative option feature is made through a third party that controls the process of purchasing and/or cancelling a subscription …, any new requirements would apply to the third party only, and not to the company that fulfills the subscription." (*id.*). NCTA raised the same point about sign-up "arrangements with Roku, Amazon, Apple, and others" (*id.*).

The Commission refused:

> "Based on the record, the Commission revises the definition of ``negative option seller'' to remove the word ``promoting,'' but **declines to create status-based exemptions**. Moreover, the Commission clarifies it will enforce the final Rule in accordance with **established section 5 principles regarding parties' responsibilities for, and involvement in, relevant activity**."

On payment intermediaries specifically:

> "The Commission declines to adopt a status-based exemption for payment intermediaries. Such exemptions are overbroad, excluding actors engaged in the practices condemned by the Rule. For example, a payment processor selling its own services on a negative option basis, as opposed to just providing payment services for another negative option seller, is no different than any other business covered by the Rule. Additionally, as ETA correctly noted, **the words ``charging for'' … do not cover intermediaries merely effecting the transfer of funds from the consumer buyer to the merchant seller. This is consistent with the Commission's interpretation of ROSCA's coverage of persons who ``charge or attempt to charge any consumer.'' Based on longstanding section 5 principles, the Commission has not enforced ROSCA against payment intermediaries solely for their conduct in effecting funds transfers.**"

(n.144: *FTC v. Apex Capital Grp., LLC*, No. 2:18-cv-09573 (C.D. Cal. 2018) — "the Commission did not assert ROSCA claims against the payment intermediary defendants, instead asserting counts for credit card laundering and manipulation of chargeback levels as Section 5 violations." n.145: *FTC v. First Am. Payment Sys.*, No. 4:22-cv-00654 (E.D. Tex. 2022) — "ROSCA case against payment processor **for its unlawful acts and practices against its merchant customers**.")

**On contractual allocation — the direct answer to the commission's question:**

> "Similarly, the Commission will not grant blanket exemptions to sellers who contract with third parties while offering subscription services. The Commission expects negative option sellers to evaluate their commercial relationships with the Rule's provisions in mind. **Even where a seller does not directly manage its negative option feature disclosures, consent, or cancellation, it can satisfy its obligations under the Rule by choosing to contract with third parties who act in accordance with the Rule and monitoring those parties' performance.** An exemption for all sellers who contract with third parties to manage aspects of their negative option programs would effectively nullify the Rule by incentivizing less than legitimate sellers to contract with actors engaged in deceptive practices to maximize negative option enrollments and frustrate cancellation with impunity. **A seller cannot evade its responsibility to deal honestly with consumers by contracting with a third party who does not.**"

The authority the Commission cited for the "further role" test is *FTC v. LeadClick Media, LLC*, 838 F.3d 158, 170, 172 (2d Cir. 2016) — quoted in the Federal Register as holding an affiliate network liable where it "did not create ads but ``directly participat[ed] in the deceptive scheme by recruiting, managing, and paying a network of affiliates … **and allowing the use of deceptive advertising where it had the authority to control the affiliates** participating in its network.'" ◇ *Quoted from the FR parenthetical; I did not read the Second Circuit opinion itself.*

**E4 · Enforcement actions where the charge ran through a platform: the FTC charged the platform that controlled billing.**

**FTC v. Amazon.com, Inc.**, No. 2:14-cv-01038-JCC (W.D. Wash.) — the strongest authority, because it was litigated to judgment, and in Washington.

Complaint filed 10 July 2014 (ftc.gov/system/files/documents/cases/140710amazoncmpt1.pdf). ¶1: the action concerns "Defendant's **billing for charges related to activity within software applications (``apps'') consumers download to their mobile devices from Defendant's app store**." ¶8: "**Amazon bills charges for items that cost money within the app**—``in-app charges''—to the parent. … Amazon nonetheless often has failed to obtain parents' or other account holders' informed consent to in-app charges incurred by children." ¶10: "**Before it agrees to offer any app designed by a third-party developer in the Appstore, Amazon reviews the app's functionality, content, and user experience.**" ¶12: "**Amazon controls the billing process for in-app charges and retains 30% of all revenue from in-app charges**, amounting to tens of millions of dollars to date."

Count I, "Unfair Billing of In-App Charges," ¶¶33–35: "In numerous instances, Defendant has **billed** parents and other Amazon account holders for children's activities in apps … **without having obtained the account holders' express informed consent**. … therefore constitute unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n)."

**Disposition:** Order Granting Amazon's Motion for Partial Summary Judgment and Granting the FTC's Motion for Summary Judgment, No. C14-1038-JCC (W.D. Wash. **26 April 2016**), at 22: "**The Court determines that the scope of Amazon's unfair billing practices pertains to all in-app charges made by account users without express, informed authorization.**" At 23: "with respect to liability, the FTC's Motion for Summary Judgment … is GRANTED. **Judgment is hereby entered in the FTC's favor.**"

**The third-party app developers who supplied the goods and set their prices were not defendants.** The platform that controlled the billing process and took a revenue share was the one held liable for failing to obtain express informed consent.

**Google Inc.**, FTC press release 4 Sept 2014, ftc.gov/news-events/news/press-releases/2014/09/google-refund-consumers-least-19-million-settle-ftc-complaint-it-unlawfully-billed-parents-childrens: "Google Inc. has agreed to settle a Federal Trade Commission complaint alleging that **it unfairly billed consumers for millions of dollars in unauthorized charges incurred by children using mobile apps downloaded from the Google Play app store** … **Google has also agreed to modify its billing practices to ensure that it obtains express, informed consent from consumers before charging them for items sold in mobile apps.** … The Commission's complaint against Google alleges that since 2011, Google violated the FTC Act's prohibition on ``unfair'' commercial practices by **billing consumers for charges by children made within kids' apps** downloaded from the Google Play store." The same release records: "**This marks the Commission's third case concerning unauthorized in-app charges by children. In January, the Commission announced a settlement with Apple Inc., requiring Apple to provide full refunds to consumers who were billed for unauthorized** [charges]." ◇ *Apple, In the Matter of Apple Inc. (Jan. 2014): confirmed only by this FTC press-release reference; the Apple case page 404s at the URLs I tried and I did not read its complaint or order.*

**E5 · What this yields, without concluding law.** The authorities point three ways at once and they are not in tension:

1. **The party that makes the offer, sets the price and supplies the product is a duty-bearer under every instrument that applies** — ROSCA §8403 ("charge or attempt to charge"), Cal. §17602(a), N.Y. §527-a(1), 815 ILCS 601/10(a). None of these is escapable by pointing at the biller, and the FTC has said in the Federal Register that it "will not grant blanket exemptions to sellers who contract with third parties."
2. **A platform that controls the billing process and the consent interface is *also* a duty-bearer** — *Amazon* (W.D. Wash. 2016) and *Google* (2014) hold exactly that under §5, and the FTC declined to write a platform exemption into the 2024 Rule.
3. **A pure funds-transfer intermediary is not, for that conduct alone** — the FTC's stated interpretation of ROSCA's "charge or attempt to charge," and its litigation practice in *Apex Capital* (no ROSCA count against the payment intermediaries) and *First American Payment Systems* (ROSCA count only for the processor's *own* practices against its merchants).

**Are duties joint? On the record: yes, overlapping and role-based, and they attach to whoever performs the function.** **Has contractual allocation ever been credited? I found no authority crediting it, and one primary source expressly declining to** (89 FR 90487). What *is* credited is process, not paper: 815 ILCS 601/10(c) (written procedures + refund), Cal. §17604(b) (good-faith compliance), N.Y. §527-a(3) (bona fide error notwithstanding reasonably adopted procedures) — and the FTC's own formulation, "**choosing to contract with third parties who act in accordance with the Rule and monitoring those parties' performance**."

**The community/name owner.** No instrument reaches a party solely on the strength of owning the member relationship and taking a revenue share. The triggers are *making the offer* (CA, NY), *selling or offering to sell* (IL), and *charging or attempting to charge* (ROSCA). A 20% revenue share, without more, matches none of them. But *LeadClick*'s "further role" / "authority to control" framing — the authority the FTC itself cites — is the exposure: if the community owner's surface is where the offer terms are presented, where consent is taken, or where cancellation is (or is not) available, it moves from revenue-share recipient to participant. **This is genuinely unresolved on the authorities and turns on facts not fixed in the frozen configuration.**

---

### The deliverable — compliance checklist for the subscription flow

Legend: **CO** = the Company (Delaware LLC; sets price, supplies product) · **PL** = the community platform (billing infrastructure) · **NO** = the community/name owner · **J** = joint / unresolved.

**Federal floor — ROSCA §8403 (applies; the only federal negative-option provision that reaches this product)**

| # | Duty | Source | Carried by |
|---|---|---|---|
| 1 | Disclose **all material terms in text, clearly and conspicuously, BEFORE billing information is obtained** — that the member will be charged; that the charge recurs monthly; **that the price rises when the one-time trial discount ends, and to what**; the amount and frequency; the deadline to act; how to cancel | §8403(1); 86 FR 60824 | **CO** primarily; **PL J** if the platform's surface is where terms are shown | 
| 2 | Place the negative-option disclosure **immediately adjacent to the means of recording consent** | 86 FR 60825 (guidance, not binding) | **CO / PL J** — whoever owns that surface |
| 3 | Obtain **express informed consent before charging** — an affirmative act directed at the recurring-charge term, distinct from the rest of the transaction | §8403(2); cf. vacated §425.5(a)(1) as the FTC's stated benchmark | **CO / PL J** — the FTC charged the *biller* in *Amazon* and *Google* |
| 4 | Provide a **simple mechanism to stop recurring charges** | §8403(3) | **CO / PL J** — CO cannot discharge this by pointing at PL (89 FR 90487) |
| 5 | Retain evidence of consent | Not a ROSCA requirement; vacated §425.5(a)(3) required 3 years; **Cal. §17602(a)(6) requires it as law: 3 years, or 1 year post-termination, whichever is longer** | **CO** |
| 6 | Contract with PL on terms that require Rule/statute-compliant conduct, **and monitor PL's performance** | 89 FR 90487 | **CO** — expressly non-delegable |
| 7 | Pure funds transfer, without control of terms or interface, is not itself a ROSCA duty | 89 FR 90487; *Apex Capital* | **PL** — but only if PL's role really is that narrow |

**16 C.F.R. Part 425 (in force): no duties.** Does not apply — goods and merchandise only, prenotification plans only (§425.1(a), (c)(1); 86 FR 60823 n.3). **This is a status finding, not a safe harbour: the ANPRM at 91 FR 12318 is live, and a successor rule would almost certainly apply.**

**State duties — triggered by member residence, not by where the Company sits**

| # | Duty | Trigger | Carried by |
|---|---|---|---|
| 8 | Pre-purchase disclosure of renewal terms **in visual proximity to the consent request**, before the agreement is fulfilled | CA §17602(a)(1); NY §527-a(1)(a); IL §601/10(a)(i) | **CO / PL J** |
| 9 | **Trial-discount explanation at the point of offer**: how and when the price changes and what will then be charged | CA §17602(a)(1); NY §527-a(1)(a) | **CO** (CO alone sets price) |
| 10 | Affirmative consent to the renewal terms **including the promotional/discounted price** — third-party billing does not shift this | CA §17602(a)(2), (a)(4); NY §527-a(1)(b); IL §601/10(a)(ii) | **CO / PL J** |
| 11 | **Retainable acknowledgment after purchase** with terms, cancellation policy and how to cancel | CA §17602(a)(3); NY §527-a(1)(c) ("promptly following affirmative consent"); IL §601/10(a)(iii) | **CO** |
| 12 | **Trial-conversion notice — Illinois is the binding constraint.** A one-month discounted first month is ≥15 days ⇒ **notice no less than 3 days before the cancellation deadline**, in the medium the member is accustomed to | IL §601/10(a-5) | **CO** |
| 13 | CA trial/promotional notice (3–21 days before expiry) — **triggered only if the discounted price applies for more than 31 days**; a single ~30-day discounted month appears to fall below the trigger, but a 31+ day trial does not | CA §17602(a)(8), (b)(1) | **CO** |
| 14 | NY trial notice (3–21 days) — **triggered only if the free gift or trial runs "more than a month"** | NY §527-a(1)(h) | **CO** |
| 15 | **CA fee-change notice, 7–30 days before the step-up.** §17602(g)(2) reaches "a change in the fee charged under an existing automatic renewal or continuous service offer …, **including changes the consumer affirmatively consented to in an existing plan or arrangement**." On its face this captures the end of a one-time trial discount. **Unresolved: it may overlap or conflict with the (b)(1) 31-day trigger; no authority found resolving it.** | CA §17602(g)(2) | **CO** |
| 16 | **CA annual reminder.** §17602(h) reaches "an annual automatic renewal agreement **or continuous service agreement**." A month-to-month membership continuing until cancelled reads as continuous service. **Unresolved whether the annual reminder applies to monthly plans; the text supports it, and I found no authority construing it.** | CA §17602(h) | **CO** |
| 17 | Renewal reminders for terms ≥1 year — **do not apply** to a monthly membership (CA 15–45 days; NY 15–45 days; IL 30–60 days; VT 30–60 days) | CA §17602(b)(2); NY §527-a(1)(f); IL §601/10(b); 9 V.S.A. §2454a(a)(3) | — |
| 18 | **Online enrolment ⇒ cancellation exclusively online**, by prominent link/button or a pre-formatted termination email, with no obstructing steps | CA §17602(d)(1); IL §601/10(b-5) | **CO / PL J** — **structurally the hardest duty when the platform owns the account UI** |
| 19 | Cancellation **as easy as consent, in the same medium as consent, and through every medium in which consent may be given** | NY §527-a(1)(d), (d-1); CA §17602(f) | **CO / PL J** |
| 20 | Any save/retention offer must display a **"click to cancel"** link or button simultaneously and continuously | CA §17602(e)(2); NY §527-a(1)(e)(ii) | **CO / PL J** |
| 21 | No obstruction, no misrepresenting the consequences of cancellation, no unreasonable delay | NY §527-a(1)(e); CA §17602(d)(1) | **CO / PL J** |
| 22 | Price increases: fresh affirmative consent **or** a 14-day post-charge cancellation window with pro-rata refund | NY §527-a(1)(b-1) | **CO** |
| 23 | Material-change notice: NY 5 business days–30 days; CA clear and conspicuous notice + retainable cancellation information | NY §527-a(1)(g); CA §17602(g)(1) | **CO** |
| 24 | No misrepresentation of any material fact related to the transaction **or the underlying good or service** | CA §17602(a)(7) | **CO / NO J** — the community owner's own representations about what membership delivers land here |
| 25 | Maintain verification of affirmative consent, 3 years / 1 year post-termination | CA §17602(a)(6) | **CO** |
| 26 | Establish and enforce **written compliance procedures**, and refund in full where error causes a failure — the only route to the Illinois safe harbour | IL §601/10(c); cf. CA §17604(b); NY §527-a(3) | **CO** |
| 27 | Washington members: **charge only where the member "specifically requested, in an affirmative manner, the receipt of the … services according to the terms under which they are being offered"** — otherwise the service is an unconditional gift and a per se CPA violation | RCW 19.56.020, .030; RCW 19.86.020 | **CO / PL J** |
| 28 | Washington CPA applies regardless of where CO sits — "any commerce directly or indirectly affecting the people of the state of Washington," with long-arm service | RCW 19.86.010(2), .160 | **CO** |

**Duties carried by the community/name owner (NO):** on the authorities found, **none arising from the revenue share itself.** NO acquires duties only by function: if NO's surface presents the offer terms, takes the consent act, or is where a member would reasonably go to cancel, NO becomes a party "making the offer" (CA §17602(a); NY §527-a(1)) or one with "authority to control" the presentation (*LeadClick*, as quoted at 89 FR 90487 n.142). **This is the single most consequential open point in the track, and it is a facts question the frozen configuration does not settle.**

**Duties that cannot be contracted away:** #3, #4, #6, #10, #18, #19. The FTC's published position is that a seller "cannot evade its responsibility to deal honestly with consumers by contracting with a third party who does not," and that the correct response to a platform-managed flow is contract-plus-monitoring, not allocation (89 FR 90487). No authority was found crediting a contractual allocation of these duties.

---

### Negative findings

1. **The FTC's 2024 "click-to-cancel" Rule is not in force.** Vacated in its entirety, *Custom Commc'ns, Inc. v. FTC*, 142 F.4th 1060, 1074–75 (8th Cir., filed 8 July 2025); removed from the CFR by 91 FR 6507 (12 Feb 2026). Anyone building to §§425.3–425.6 as binding law is building to a vacated rule.
2. **Equally: the Rule was not replaced by nothing.** The pre-2024 Rule was reinstated by operation of the vacatur and recodified. It simply does not reach this product.
3. **16 C.F.R. Part 425 as in force does not apply to a flat monthly community membership** — "goods and merchandise" only, prenotification plans only. Confirmed by the FTC's own footnote at 86 FR 60823 n.3.
4. **Part 425 contains no definition of "seller."**
5. **⚠ The commission's Washington premise is wrong. RCW ch. 19.56 is "Unsolicited Goods" (1967/1992), not an auto-renewal statute, and there is no 2022 enactment there.** I found **no dedicated Washington automatic-renewal statute** — not in Title 19 (full chapter enumeration) and not in ch. 19.86 (full section enumeration). Washington's coverage runs through the CPA and RCW 19.56.020. This should be re-tested against a full-text RCW search when one is available; the Legislature's search endpoint is a JavaScript SPA that returned nothing machine-readable.
6. **⚠ The commission's Illinois citation is wrong. 815 ILCS 505/2DDD is "Alternative gas suppliers" (P.A. 95-1051, eff. 10 Apr 2009).** Illinois' automatic-renewal law is **815 ILCS 601/**, the Automatic Contract Renewal Act.
7. **Cal. Bus. & Prof. Code §17601 does not define "business."** It defines "consumer" (§17601(a)(4)) but leaves the duty-bearer functionally described in §17602(a).
8. **N.Y. Gen. Bus. Law §527-a has no definitions subdivision**; "business" is undefined. **815 ILCS 601/5 has no definition of "seller."**
9. **I could not verify the enactment or amendment dates of N.Y. Gen. Bus. Law §527-a from a primary source.** nysenate.gov is behind a Cloudflare interstitial for automated clients and its law pages do not display a session-law history line; public.leginfo.state.ny.us was unreachable. The **text** above is verbatim as served by nysenate.gov on 5 Sep 2026. **I have not guessed the dates.** This should be closed before the register is relied on.
10. **No FTC enforcement action was found in which a company was charged solely because its subscription was billed through someone else's platform, nor one in which a platform was excused because the underlying seller had contracted to bear compliance.** The enforcement record runs the other way: in *Amazon*, *Google* and (◇ by reference) *Apple*, the **platform that controlled billing** was the respondent, and the third-party developers who supplied and priced the products were not.
11. **No authority was found crediting a contractual allocation of negative-option duties between a seller and a billing platform.** The only primary-source treatment found rejects it (89 FR 90487) — but note that source accompanied a vacated rule.
12. **No authority was found imposing negative-option duties on a party solely by reason of a revenue share and ownership of the customer relationship.** Absence of authority, not a holding of non-liability.
13. **Vermont 9 V.S.A. §2454a does not reach a monthly membership** (initial term ≥1 year renewing >1 month). Included as the ceiling case.
14. **I did not survey fifty states**, per instruction. Delaware's own law was not researched; on the statutes examined, the operating entity's state of formation is irrelevant — every trigger is the *member's* residence.
15. **The 2021 Enforcement Policy Statement is guidance, not law**, and says so: "does not confer any rights on any person and does not operate to bind the FTC or the public" (86 FR 60822 n.1).

---

### Search log

| # | Query / URL | Source | Date run | Access note |
|---|---|---|---|---|
| 1 | FR API: `conditions[term]=negative option`, `agencies[]=federal-trade-commission`, `publication_date[gte]=2024-01-01`, newest first, 50/page | federalregister.gov API | 5 Sep 2026 | 24 results; surfaced the 12 Feb 2026 final rule and the 13 Mar 2026 ANPRM. Agency+date filtering worked as the access note predicted |
| 2 | FR API: `conditions[cfr][title]=16`, `[part]=425`, `publication_date[gte]=2026-01-01` | federalregister.gov API | 5 Sep 2026 | **count = 2.** The decisive "nothing since" check |
| 3 | `/documents/full_text/text/2026/02/12/2026-02866.txt` | Federal Register | 5 Sep 2026 | 29,770 bytes; full recodified Part 425 text |
| 4 | `/documents/full_text/text/2026/03/13/2026-04952.txt` | Federal Register | 5 Sep 2026 | 65,627 bytes; ANPRM |
| 5 | `/documents/full_text/text/2024/11/15/2024-25534.txt` | Federal Register | 5 Sep 2026 | 185,894 bytes; vacated rule + SBP incl. the platform/intermediary analysis at 90487 |
| 6 | `/documents/full_text/text/2021/11/04/2021-24094.txt` | Federal Register | 5 Sep 2026 | 2021 Enforcement Policy Statement. First guess at the doc number (2021-23962) 404'd; found via FR API term+date query |
| 7 | eCFR versioner `/api/versioner/v1/full/2026-09-03/title-16.xml?part=425` | eCFR | 5 Sep 2026 | `--compressed`, per access note. **2026-09-05 rejected**: "past the title's most recent issue date of 2026-09-03" |
| 8 | eCFR versioner `…/title-16.xml?part=310&section=310.2` | eCFR | 5 Sep 2026 | §310.2(w), (ee) |
| 9 | `ecf.ca8.uscourts.gov/opndir/25/07/243137P.pdf` | 8th Cir. | 5 Sep 2026 | 122,829 bytes, 23 pp.; `pdftotext -layout` |
| 10 | `govinfo.gov/content/pkg/USCODE-2024-title15/html/USCODE-2024-title15-chap110-sec{8402,8403,8404}.htm` | govinfo | 5 Sep 2026 | UA with contact address; 6,353 / 2,328 / 3,217 bytes — size-checked per access note, no block page |
| 11 | `uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section8402…` | OLRC | 5 Sep 2026 | **Timed out at 120 s, no bytes.** Switched to govinfo |
| 12 | `app.leg.wa.gov/RCW/default.aspx?cite=19.56&full=true` | WA Legislature | 5 Sep 2026 | 114,110 bytes. Chapter is "UNSOLICITED GOODS" |
| 13 | `app.leg.wa.gov/RCW/default.aspx?Cite=19` | WA Legislature | 5 Sep 2026 | Full Title 19 chapter enumeration; no auto-renewal chapter |
| 14 | `app.leg.wa.gov/RCW/default.aspx?cite=19.86&full=true` | WA Legislature | 5 Sep 2026 | Full CPA section list + text; no auto-renewal section |
| 15 | `search.leg.wa.gov/search.aspx?…`; `leg.wa.gov/search/search.aspx?…`; `leg.wa.gov/api/search`; `app.leg.wa.gov/RCW/dispo.aspx` | WA Legislature | 5 Sep 2026 | **All dead ends.** 302 to an SPA that renders "Page not found"; no form fields, no JSON API |
| 16 | `leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=7.&part=3.&chapter=1.&article=9.` | CA Legislature | 5 Sep 2026 | 156,939 bytes; complete Art. 9 (§§17600–17606) with AB 2863 credits |
| 17 | `nysenate.gov/legislation/laws/GBS/527-A` via curl (two UA/header variants) | NY Senate | 5 Sep 2026 | **403 Cloudflare** — "Just a moment… Enable JavaScript and cookies" |
| 18 | Same URL via **WebFetch** ×3 (structure; subds. 1–2 verbatim; subds. 3+ verbatim) | NY Senate | 5 Sep 2026 | WebFetch passes Cloudflare. First prompt returned a summary; **an explicit "transcribe character for character, output only the transcription" instruction produced verbatim text.** History line not present on the page |
| 19 | Same URL via `r.jina.ai` proxy | NY Senate | 5 Sep 2026 | 236 bytes — "Target URL returned error 403" |
| 20 | `public.leginfo.state.ny.us/navigate.cgi` | NY Bill Drafting Commission | 5 Sep 2026 | **Connection failed, 0 bytes** |
| 21 | `ilga.gov/legislation/ilcs/fulltext.asp?DocName=081505050K2DDD` (curl and WebFetch) | IL General Assembly | 5 Sep 2026 | **ECONNREFUSED 12.43.67.2:443** from both curl and the WebFetch infrastructure |
| 22 | `codes.findlaw.com/il/…/il-st-sect-815-505-2ddd/` via WebFetch | FindLaw (secondary) | 5 Sep 2026 | Revealed 2DDD = "Alternative gas suppliers" — used as a **lead only** |
| 23 | `codes.findlaw.com/…/il-st-sect-815-601-10/` via WebFetch | FindLaw (secondary) | 5 Sep 2026 | Identified 815 ILCS 601/ as the ARL; returned a summary, not verbatim — **lead only**. curl to the same URLs returned 403 |
| 24 | `law.justia.com/codes/illinois/…/section-815-ilcs-505-2ddd/` via WebFetch | Justia | 5 Sep 2026 | **403** |
| 25 | `r.jina.ai/https://www.ilga.gov/legislation/ilcs/ilcs2.asp?ChapterID=67` | IL General Assembly, via text proxy | 5 Sep 2026 | **Worked.** Located "815 ILCS 601/ Automatic Contract Renewal Act", ActID 2363 |
| 26 | `r.jina.ai/https://www.ilga.gov/Legislation/ILCS/Articles?ActID=2363&ChapterID=67&Print=True` | IL General Assembly, via text proxy | 5 Sep 2026 | **Full verbatim Act with Public Act source lines.** Primary text, retrieved through a proxy because the origin refuses this network |
| 27 | `legislature.vermont.gov/statutes/section/09/063/02454a` | VT Legislature | 5 Sep 2026 | Plain GET, 10,325 bytes |
| 28 | `ftc.gov/legal-library/browse/cases-proceedings/122-3238-amazoncom-inc` | FTC | 5 Sep 2026 | 200; PDF links for the 2014 complaint and the 2016 SJ order |
| 29 | `ftc.gov/system/files/documents/cases/140710amazoncmpt1.pdf` and `160427amazonorder.pdf` | FTC | 5 Sep 2026 | 348 KB and 1.28 MB; `pdftotext -layout` |
| 30 | FTC case pages for Apple (122-3108, 1223108-apple-inc-matter) and Google (122-3120, 122-3237, 1223237-google-inc-matter) | FTC | 5 Sep 2026 | **All 404 with a ~982 KB error page** — note the size trap: a 404 here still returns a full-size page |
| 31 | `ftc.gov/news-events/news/press-releases/2014/09/google-refund-consumers…` | FTC | 5 Sep 2026 | 200; also corroborates the Apple settlement |
| 32 | `ftc.gov/news-events/news/press-releases/2014/01/apple-inc-will-provide-full-consumer-refunds…` | FTC | 5 Sep 2026 | **404.** Apple therefore ◇ only |
| 33 | `ftc.gov/legal-library/browse/cases-proceedings?search=in-app+charges+unauthorized` | FTC | 5 Sep 2026 | Search returns poorly-matched results; not useful |
| 34 | `reginfo.gov/public/do/eAgendaViewRule?pubId=202604&RIN=3084-AB54` | reginfo.gov | 5 Sep 2026 | Returned Fall/Spring 2018–2019 agendas only; superseded by search #2 |
| 35 | DuckDuckGo (`html.` and `lite.`), mojeek, Bing via proxy | — | 5 Sep 2026 | DDG served an anti-bot challenge; Bing-via-proxy returned encyclopedia results for "Washington." **Useless for legal research** |
| 36 | WebSearch tool | — | 5 Sep 2026 | **Unavailable — session budget exhausted (200/200) before this track began.** All searching was done by direct fetch |

**Search-string discipline:** no product, project, methodology, person or domain names appeared in any query. Vendors and platforms are named only where their published documents or the FTC's own filings are the primary source.


---

<br>

# S8 · ADDENDUM TRACK 8 — Market data licensing

I have the primary sources. Writing up the deliverable.

## S8 — Track 8: market data licensing

**Commission:** Addendum Track 8 only. **Research date:** 5 September 2026. All retrievals 5 September 2026 unless stated. No legal conclusions — supports/undercuts and "what the published terms say" only. ◇ marks propositions where only secondary or partial confirmation was obtained.

**Reading note on the configuration (from §1 of the frozen prompt):** two data-consuming surfaces exist — (i) a **hosted engine**, operated by its builder, that displays prices and evaluates member-authored rules for paying members; (ii) a **locally installed runtime** on the member's own machine that composes orders and talks to the member's own broker's retail API. The vendor is "of the Tiingo type". The member's broker returns its own data. Those are the six flows below.

---

## S8 authority register

### A. The commercial data vendor (Tiingo)

**A1 · Tiingo™ Terms of Use** — https://www.tiingo.com/tos/ · **Version 1; Effective Date: January 16th, 2022; Last Updated Date: August 5th, 2026** · Type: vendor contract of adhesion · Status: current, live · Relevance **5**

§1.6 is the operative clause and is unusually explicit. Verbatim, §1.6(c) "Derived Products":

> "Data, results, content, or products created through the transformation, analysis, or processing of Tiingo Data are referred to as **'Derived Products.'** Unless applicable Supplemental Terms provide otherwise, you may create, retain, use, and distribute a Derived Product without separate written approval only if the Derived Product at all times satisfies both of the following requirements: (i) it is not, and cannot reasonably be used as, a substitute for access to, purchase of, or use of any Tiingo Data or Service; and (ii) it cannot reasonably be reverse engineered, reconstructed, decoded, disaggregated, matched, combined with other information, or otherwise used to identify, recover, or reproduce any underlying Tiingo Data. A Derived Product that fails either requirement is prohibited unless Company expressly approves it in writing."

Permitted-example list includes, verbatim:

> "**rankings, scores, trading signals, classifications, forecasts, model parameters, or other analytical outputs that do not expose or reproduce the underlying Tiingo Data**; and"

Prohibited-example list includes, verbatim:

> "simple transformations of open, high, low, close, volume, bid, ask, trade, quote, fundamental, news, or other Tiingo Data, including renaming, reordering, reformatting, rounding, filtering, adjusting, or changing the file format or schema;"
> "returns, differences, ratios, or other calculations supplied with an anchor, reference value, key, lookup table, or sufficiently complete sequence that permits reconstruction of underlying Tiingo Data;"
> "**tables, files, feeds, APIs, databases, dashboards, charts, downloads, or query tools that display, deliver, or permit extraction of Tiingo Data or a substantially equivalent substitute**;"

And the reservation of discretion:

> "Company may determine in its reasonable discretion whether a Derived Product satisfies this Section. **Derived Products that satisfy this Section may be retained after your subscription ends; Tiingo Data may not.**"

**Caching / storage**, §1.6(a) (Starter/Trial plans):

> "you may not write, save, archive, back up, or otherwise retain Tiingo Data in any persistent or durable storage. You may process Tiingo Data only transiently in volatile memory or in a temporary, non-persistent cache, and only to complete the calculation or operation for which the Tiingo Data was obtained. … This prohibition applies to all storage systems owned, leased, or controlled by you or operated on your behalf, including local devices, databases, object stores, file systems, logs, queues, archives, backups, and disaster-recovery systems."

§1.6(b) (Paid plans):

> "While an eligible paid subscription plan other than a Starter Plan or Trial Plan (a 'Paid Plan') remains active, you may persist Tiingo Data in storage solely to the extent permitted by that Paid Plan and these Terms. Upon the expiration, cancellation, or termination of the Paid Plan, or a downgrade to a Starter Plan or Trial Plan, **you must promptly and permanently delete all Tiingo Data from every system owned, leased, or controlled by you or operated on your behalf**, including production systems, local storage, logs, queues, archives, backups, disaster-recovery systems, and systems used for legal, regulatory, or compliance retention."

**Redistribution / display to third parties**, §7.3 "Use of the Tiingo API":

> "**All data via the API is for internal consumption only.** If you are an individual, you may sign up for an Individual plan; however, if you are representing an organization or business, you must sign up for a Commercial plan. **Redistribution is only available upon special request and permission, and comes with additional fees.** … In the event that Tiingo permits you to redistribute any data, any page, paper, presentation, app, website, obtained via the Tiingo API, you must include with any redistribution, the phrase 'Data sourced by Tiingo' with a link to https://www.tiingo.com."

§1.4 "Certain Restrictions", verbatim (extract):

> "(a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties … (d) **except for Derived Products expressly permitted by Section 1.6** or as otherwise expressly approved in writing by Company, you shall not modify, translate, adapt, merge, make derivative works of … any part of Company Properties … (f) you shall not access Company Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, **no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means**".

**Establishes:** the vendor layer draws its line at *reconstructability and substitutability*, not at display-vs-non-display. A boolean/scored signal is expressly named in the permitted list; a screen or API that shows quotes is expressly named in the prohibited list. **Supports** flow 3 (signal shown to member) as licensable-free derived output on the vendor axis; **undercuts** flows 1, 4, 6 (any display or extractable delivery of prices to a third party) absent a redistribution licence.

**A2 · Tiingo API Documentation, §1.1.6 "Permitted Use of Our Data"** — https://www.tiingo.com/documentation/general/overview (Angular SPA; text extracted from the published bundle `src_app_api_documentation_documentation_module_ts-es2015.4f444767383196b24003.js` on apimedia.tiingo.com, retrieved 5 Sep 2026) · Relevance **5**

> "For Basic and Power accounts, **data is for internal and personal use only. You may not redistribute the data in any form.**
> For Commercial accounts, **data is licensed for internal commercial usage. You may not redistribute the data in any form.**
> If you would like to redistribute the data for commercial or personal use, for example: **a presentation, a proposal, a website or app**, or any other usage case, please E-mail sales@tiingo.com …
> If you are a developer and are building software for your audience that **requires users to submit their own Tiingo API token** in order to use your software, and **your software is not distributing our data, you do not need to contact us regarding licensing.**"

**A3 · Tiingo Appendix 5.1 "Developer Program"** (same source) · Relevance **5** — the direct answer to "does a paying end user of a product built on the API need their own subscription":

> "This guide is meant for software developers who would like to integrate their financial software to use Tiingo's API as a data source, **where their software requires users to supply their own Tiingo API Token. This requires users to register for their own Tiingo account.**
> This is **not** meant for developers digesting Tiingo data and then redistributing Tiingo's data on their own platform/app/software. **If you would like to redistribute Tiingo's data without requiring your users to make their own Tiingo account, you will have to get a redistribution license.**"

§5.1.3: "**Each user must have their own API token.** … You may then allow the user to paste their API token in your software and then use their API token to obtain Tiingo data."
§5.1.4 rules: "**Tiingo must be clearly attributed as the data source.**" and "You and your end users are bound by the Tiingo Terms of Service and Privacy Policy."

**Establishes:** two mutually exclusive architectures. (i) BYO-token — every member holds their own Tiingo subscription, the product never holds the data; no redistribution licence, no fee to the builder. (ii) Builder-held key serving members — that is redistribution and requires a written redistribution licence. **This is the single decisive vendor-side fact for the configuration.**

**A4 · Tiingo price tiers** — https://www.tiingo.com/about/pricing and the product pages (text extracted from `src_app_api_products_products_module_ts-es2015.8fad9da96d96d380e24e.js`, retrieved 5 Sep 2026) · Relevance **4**

Verbatim from the pricing summary table (REST, EOD + IEX):

| Plan | Free | Power | Commercial | EOD + IEX Redistribution |
|---|---|---|---|---|
| Entity | Individual | Individual | Business | Business |
| **License** | **Internal Use Only** | **Internal Use Only** | **Internal Use Only** | **Display Redistribution** |
| Plan Price | $0/month | $30/month | $50/month | **"$250/month for startups / $500/month for enterprise"** |

IEX websocket tier: "Enterprise & Redistribution — Business — **Display Redistribution / Non-Display** … $500/month Tiingo Fee + BOATS License Fee"; and "For **redistribution or non-display trading use**, please reach out to Sales@tiingo.com". Marketing text: "Our API is included in a Tiingo.com subscription for individuals & personal use. For those who have **commercial or redistribution needs**, we offer fair pricing for your firm…"; "$30/month (or $300/year) for individuals and $50/month (or $499/year) for **internal commercial use**."

**Establishes:** Tiingo itself uses the exchange vocabulary — its top tier is expressly *"Display Redistribution / Non-Display"*. The three lower tiers are all "Internal Use Only" and none of them licenses a hosted product's display to members.

**A5 · Tiingo IEX derived-reference-price mechanism** (documentation §2.6.1 / §3.4.2, retrieved 5 Sep 2026) · Relevance **4** — a worked vendor-side example of derived data used to escape an exchange licence:

> "As of February 1st, 2025 IEX Exchange has changed their market data policies. To receive the FULL TOPS Feed, you must now have a market data agreement signed with the IEX Exchange. … For customers who **do not want to sign a license agreement, you may use our derived data that calculates a reference price for each asset in real-time**. … **There is no additional cost to the IEX Exchange if using our derived data.** … If you want this compliant-friendly reference price, you may use a thresholdLevel of 6".
> §3.4.2 heading: "**Reference Price (Derived Data Calculation)**".

**Supports** the general proposition that a computed reference value can sit outside an exchange licence — but note it is the *vendor's* characterisation, not the exchange's, and it is a price, i.e. still displayed as a price.

---

### B. Nasdaq

**B1 · Nasdaq US Equities and Options Data Policies, Version 2.6** — https://www.nasdaqtrader.com/content/AdministrationSupport/Policy/USEquitiesandOptionsDataPolicies.pdf · 34pp · "© Copyright 2022, Nasdaq, Inc." · document-update log: "April 21, 2023: Version 2.6" and **"June 1, 2024: Version 2.6"** (latest entry) · Status: current at retrieval · Relevance **5**

Definitions table (§2, at 4–5), verbatim:

> "**Display Usage** — Any method of accessing Exchange Information that involves the display of such data on a screen or other mechanism designed for access or use by a natural person or persons."
> "**Non-Display** — Any method of accessing Exchange Information other than Display Usage." *[Unit of count: "The greater of either: (a) the number of Subscribers that can modify the application in real-time, or (b) the number of Devices [usually servers] that receive the information"]*
> "**Information or Data** — Any data or information that has been collected, validated, processed and/or recorded by the Exchange … **Information includes, but is not limited to, any element of information used or processed in such a way that Exchange Information or a substitute for such Information can be identified, recalculated or re-engineered from the processed information.**"

§3 Derived Data (at 6), verbatim:

> "**Derived Data is any information generated in whole or in part from Exchange Information such that the information generated cannot be reverse engineered to recreate Exchange Information or be used to create other data that is recognizable as a reasonable substitute for such Exchange Information.** In combination with the above definition, examples of Derived Data include but are not limited to … swaps · swaptions · volume only data · spread bets · contracts for difference · volume weighted price (VWAP)"
> "Note 1: **Any firm that receives a real-time Data Feed is at least required to pay the Internal Distributor fee** for receipt of a real-time Data Feed with Derived Information."
> "Note 3: For equities: **creation of multiple security information, such as an index, is exempt from subscriber fees. However, the Distributor must report the Non-Display devices**".

§5 Professionals and Non-Professionals (at 12), verbatim:

> "**Non-Professional Subscriber** — Any natural person who is NOT: (a) registered or qualified in any capacity with the SEC, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association or any commodities or futures contract market or association; (b) **engaged as an 'investment advisor' as that term is defined in Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or not registered or qualified under that Act)**; or (c) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt."
> "**Professional Subscriber** — All other persons who do not meet the definition of Non-Professional User."
> "**All Subscribers are deemed to be Professional unless they are qualified as Non-Professional Subscribers.**"
> "For the Non-Professional Subscriber, **Information is licensed only for personal use.**"
> "For the Professional Subscriber, Information is licensed for the internal business use of that Subscriber. … **Note, all Internal use by an organization is Professional.**"

§7 Non-Display Usage Policy (at 20–21), verbatim:

> "Non-Display Usage is a means of accessing Nasdaq data that involves automated access or use by a machine, without access or use of a Display by a natural person or persons."
> "• The number of Devices (usually servers) that receive and benefit from the information, this includes, but is not limited to, **servers or devices that run computations or creates derived data**."
> "For avoidance of doubt, **Non-Display is fee-liable regardless of whether the Order Management System, Execution Management System, or trading infrastructure is: • A virtual system or located in the cloud; • Installed locally within a datacenter; • Enterprise; or • **Locally on an individual's desktop or Device.**"

§8(D) CP2 Hosted Display Solution (at 24), verbatim — the closest published analogue to a runtime-owned panel embedded in a third party's UI:

> "A Hosted Display Solution is a product, solution or capability provided by a Distributor in which the Distributor makes available Exchange Information **or Derived Data** to an application branded or co-branded with a third-party brand for use by external Subscribers of the third-party entity or Distributor. The Distributor maintains control of the data, entitlements and display of the product… Examples include, but not limited to: • **'Widget,' such as an iframe or applet, in which the Hosted Display Solution is a part or a subset of a website or platform.** • 'White Label' …
> **All Hosted Solutions systems need to be pre-approved by Nasdaq.** … If a Distributor provides a Hosted Solution and does not report the Hosted Solution Recipients or unaffiliated organization in the detailed reporting, then **the Distributor shall be liable for providing an Unauthorized Data Feed.**"

**B2 · Nasdaq Equity 7, Section 123(a)(2)(A)–(B)**, quoted verbatim by the Commission in **Securities Exchange Act Release No. 34-95375; File No. SR-NASDAQ-2022-042, 87 FR 47234, 47235 nn.11–13 (Aug. 2, 2022)** — https://www.federalregister.gov/documents/full_text/text/2022/08/02/2022-16482.txt · Type: SEC notice of filing and immediate effectiveness (primary) · Relevance **5**

> n.11: "See Equity 7, Section 123(a)(2)(A) (''**Display Usage means any method of accessing Depth-of-Book data that involves the display of such data on a screen or other visualization mechanism for access or use by a natural person or persons** . . .'')."
> n.12: "See Equity 7, Section 123(a)(2)(B) (''**Non-Display Usage means any method of accessing Depth-of-Book data that involves access or use by a machine or automated device without access or use of a display by a natural person or persons.**'')"
> n.13: "See Securities Exchange Act Release No. 73807 (December 10, 2014), 79 FR 74784 (December 16, 2014) (SR-NASDAQ-2014-117) (''**While Distributors are not required to technically control against non-display usage (due to the difficulty of achieving such control), the Distributor is required to restrict non-display usage contractually by including such restrictions in any agreements with recipients of the Information.**'')"

**Establishes:** the display/non-display definitions are *SEC-filed exchange rules*, not merely commercial policy; and the compliance mechanism Nasdaq itself specifies for a distributor that cannot technically prevent downstream non-display use is a **contractual restriction in the downstream agreement**. Directly relevant to a hosted engine whose members run a local runtime.

**B3 · Nasdaq Global Data Agreement, Version 4.5** — https://www.nasdaqtrader.com/content/AdministrationSupport/AgreementsData/globaldataagreement4.5.pdf · Relevance **5**

§1 definitions (Terms and Conditions p.1), verbatim (extract):

> "(f) '**Distributor's Service**' shall mean the goods or services provided by Distributor, whether internally or externally, **which is based on or uses the Information or of which the Information is a part.**"
> "(h) '**External Subscriber**' shall mean any Recipient not affiliated with the Distributor that receives Information where the Distributor **can substantially control** the Information for the purpose of reporting usage or qualification."
> "(d) '**Data Feed Subscriber**' shall mean any Recipient outside of Distributor that (i) receives Information from the Distributor and (ii) for which the Distributor **cannot substantially control** the Information for the purpose of reporting usage or qualification."
> "(t) '**Subscriber Agreement**' shall mean any agreement that Nasdaq may require Distributor to obtain from External Subscribers prior to Distributor providing External Subscribers with Information."

§7 Distributor Audit (audit right — see Adverse register).

**B4 · Nasdaq "Application for Derived Data Usage"** — https://www.nasdaqtrader.com/content/AdministrationSupport/AgreementsData/DerivedDataDeclarationForm.pdf · "© Copyright 2022, Nasdaq, Inc." · Relevance **5** — this is the *procedure* that decides derived-data status:

> "Derivation Use Case: Please explain your use case, and how the data will be calculated and where the data will be distributed. **Describe how the derived data generated cannot be reverse engineered to recreate Exchange Information, or be used to create other data that is recognizable as a reasonable substitute for such Exchange Information.**"
> "Platform Declaration: Please list the platform(s) you intend to display derived data."
> "**Any material error in the description of this use case, or any material deviation in the implementation of that use case, may result in audit liability pursuant to Section 7 of the Global Data Agreement.**"

**Establishes:** under Nasdaq's regime, derived-data status is **declared and approved ex ante**, not self-certified ex post. That is the operative answer to sub-question (c) for Nasdaq.

**B5 · Nasdaq Data — Artificial Intelligence Policy, Version 1.0, February 5, 2025** — https://www.nasdaqtrader.com/content/AdministrationSupport/AgreementsData/Data_AI_Policy.pdf · Relevance **4** (5 for the engine-as-model question)

> "Preventing the creation of information generated in whole or in part from the Nasdaq Information such that the information generated cannot be reverse engineered to recreate the Nasdaq Information, or be used to create other data that is recognizable as a reasonable substitute (**'Derived Data'**) or new original works **without an appropriate license from Nasdaq**;"
> "**Distribution of any derivative work, including but not limited to Derived Data … or Nasdaq Information that has been combined, commingled, aggregated, merged or otherwise amalgamated with other data, content or information, is strictly prohibited without first entering into an appropriate license agreement with Nasdaq and may require prior approval.**"
> "Dissemination of Nasdaq Information, including when used in large language models (LLM), retrieval-augmented generation (RAG), or other AI functionality, **must be controlled through a technical entitlement system that can be interrogated for audit and compliance purposes.**"
> "**Granting access to Nasdaq Information in an open-source AI model is prohibited**, unless otherwise agreed to by Nasdaq in writing".
> "Third party providers of AI tools with access to Nasdaq Information in this manner **may be required to obtain a license for use of such Nasdaq Information directly from Nasdaq.**"

**Undercuts** any assumption that "derived means free". Nasdaq's own AI Policy says the *distribution* of Derived Data is prohibited without a licence — which is in tension with the Data Policies §3 treatment of some Derived Data as non-fee-liable. Flag this internal inconsistency to counsel.

**B6 · UTP Plan Data Policies, published September 2023** — https://www.utpplan.com/DOC/Datapolicies.pdf · Type: SIP plan administration policy (Nasdaq-listed consolidated Level 1) · Relevance **5**

Non-Display Policy (at 9), verbatim:

> "Non-Display use refers to accessing, processing or consuming data … for a purpose **other than solely facilitating the delivery of the data to the Data Feed Recipient's display** or for the purpose of further internally or externally redistributing the data. … **In instances where the Data Feed Recipient is using the data in Non-Display to create derived data and use the derived data for the purposes of solely displaying the derived data, then the Non-Display fee schedule does not apply, but the data may be fee liable under other line items in Fee Schedule.**"
> Examples of Non-Display Use on its own behalf: "automated order or quote generation or for order pegging, **price referencing for algorithmic trading** or smart order routing, and use of data for operations control programs, **investment analysis**, order verification, surveillance programs, risk management, compliance or portfolio valuation."

Derived Data Policy (at 10), verbatim:

> "**Derived Data consists of pricing data or other information that is created in whole or in part from the UTP Information.** To be considered Derived Data: 1) The Derived Data **cannot be reverse engineered to recreate the Information**, and 2) The Derived Data **cannot be used to create other data that is recognized to be a reasonable facsimile** for the UTP Information."
> "1. DERIVED DATA: SINGLE SECURITY [**FEE LIABLE**]: UTP does not offer discounts for Single Security Derived Data, so **Derived Data that contains price data and is based upon a single UTP security symbol is generally fee liable at the underlying product rates.**"
> "2. DERIVED DATA: MULTIPLE SECURITY [**NOT FEE LIABLE**]: Derived Data that contains price and/or volume data is based upon **multiple** UTP security symbols is currently not fee liable. Examples … Total Portfolio Valuations · Creation of Indexes"
> "Distribution of non-fee liable Derived Data does not require the Recipient to sign the applicable Agreements, but note, **if a Vendor opts not to administer an Agreement, then the Vendor is required to indemnify in the event of a claim.**"

Unit of Count (at 3–4), verbatim — decisive for a locally installed runtime:

> "**A Controlled Product is defined as any retransmission of UTP Information to Recipients where the Vendor controls both the entitlements and the Display of the information.**"
> "**An Uncontrolled Product is defined as any product that does not qualify as a Controlled Product.** … Examples of Uncontrolled Products may include, but are not limited to the following: • Data Feed • Retransmission Data Feed • **Application Program Interface ['API']** • Dynamic Data Exchange['DDE'] • XML"
> "B. PROFESSIONAL UNCONTROLLED RECIPIENTS — … the Subscriber may be reported by the Vendor as a Controlled Subscriber. **No redistribution is permitted by such Subscribers and use is restricted to one Subscriber. Professional Uncontrolled Recipients may not use third party software to qualify for this exception.**"
> "If the UTP Plan does not receive information sufficient to determine if an Uncontrolled Recipient qualifies as a Nonprofessional or a Professional Controlled Subscriber, or the Uncontrolled Recipient utilizes the data **on more than one device, or uses third party software**, then the UTP Plan will charge the higher Professional Subscriber rates or Uncontrolled Recipient rates."

**Undercuts** the architecture hardest of all the documents found: an engine that exposes data through an API to a member's own locally installed third-party software is, on the face of this policy, an **Uncontrolled Product**, and the "single controlled subscriber" concession is expressly withdrawn where the recipient "uses third party software".

---

### C. NYSE / CTA-CQ

**C1 · NYSE Market Information Non-Display Use Policy** — https://www.nyse.com/publicdocs/nyse/data/Non-Display_Use_Policy.pdf · footer version: **"January 2015 v2.0"** · Relevance **5**

> "**Non-Display Use Definition: Non-Display Use of real-time NYSE Market Information means accessing, processing or consuming NYSE Market Information, delivered via direct and/or Redistributor (defined below) data feeds, for a purpose other than in support of data recipient's display or further internal or external redistribution.**"
> "'**Redistributor**' shall mean any person that provides real-time NYSE Market Information to data recipients **or to any system that a data recipient uses**, irrespective of the means of transmission or access".
> "Examples of Non-Display Use are, but are not limited to: • Any trading in any asset class • **Automated order or quote generation and/or order pegging** • **Price referencing for algorithmic trading** • Price referencing for smart order routing • Operations control programs • **Investment analysis** • Order verification • Surveillance programs • Risk management • Compliance • Portfolio Valuation"
> "CATEGORY 1 … on its own behalf … CATEGORY 2 … on behalf of its clients … CATEGORY 3 … internally matching buy and sell orders"
> "Non-Display Use by an organization for only non-trading purposes such as **systems processing and calculations that are sold as a service** should select either Category 1 or Category 2 depending on the organization's business model."
> "**An annual Declaration is required from each data recipient** regardless of the use declared in the most recent Declaration. The annual Declaration must be completed and submitted by **January 31** of each year."
> "The NYSE reserves the right to examine data recipients' use of real-time NYSE Market Information in Non-Display Use in accordance with the applicable NYSE Market Information vendor or subscriber agreement."

**Note the phrase "or to any system that a data recipient uses"** — on its face this reaches a hosted engine that feeds a member's local runtime.

**C2 · NYSE Nonprofessional Subscriber Policy** — https://www.nyse.com/publicdocs/nyse/data/Non_Professional_Subscribers_PDP_Policy.pdf · footer: **"April, 2015"** · Relevance **5**

> "'**Nonprofessional Subscriber**' refers to any natural person who receives market data **solely for his/her personal, non-business use** and who is not a 'Securities Professional,' meaning that the person is:
> a — not registered or qualified with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange/association, or any commodities/futures contract market/association; **and**
> b — **not engaged as an 'investment advisor,' as that term is defined in Section 202(a)(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); and**
> c — not employed by a bank or other organization exempt from registration under Federal and/or state securities laws to perform functions that would require him/her to be so registered or qualified if he/she were to perform such functions for an organization not so exempt."
> "**Distributors are required to verify the status of any subscriber** applying to receive data at the Nonprofessional Subscriber rate."
> "**If NYSE finds that the vendor has incorrectly qualified a professional subscriber as nonprofessional, the vendor will be liable for retroactive fees billed by NYSE for the subscriber at the professional rate.**"
> Day-trader clarification: "A day-trader can qualify as a Nonprofessional if he/she is managing his/her own money AND: — Does not assist any other person with investment decisions, nor he/she share profits; and is not a 'Securities Professional.'"
> Large traders: "the large trader does not lose his or her 'Nonprofessional Subscriber' status merely because he or she falls within SEC Rule 13h-1(a)'s definition of 'large trader'."

**C3 · NYSE Market Data Policy Package (complete)** — https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Complete_Policy_Package.pdf · Relevance **4** — contains C1 and C2 plus the Indirect Bill audit regime (quoted in the Adverse register).

**C4 · NYSE Agreement for Receipt, Use and Redistribution of NYSE Data Products (PDP Vendor Agreement)** — https://www.nyse.com/publicdocs/nyse/data/NYSE_Vendor_Agreement_PDP.pdf · Relevance **5**

¶6(a) PERMITTED USE OF DATA, verbatim:

> "Customer may receive and use NYSE Data Products pursuant to this Agreement solely as and to the extent described, and in the manner specified, in Exhibit A. **Except as this Paragraph 6 describes, any redissemination or other use of NYSE Data Products, or of information contained in NYSE Data Products, or of information derived from that information, is prohibited.** NYSE may review Customer's use of NYSE Data Products and determine **in its sole discretion** whether the manner in which Customer is using one or more NYSE Data Products is prohibited."

¶6(i) LIMITED EXTRACTS, verbatim:

> "Insofar as NYSE determines that Customer is using a 'Limited Extract,' Customer, solely in the regular course of its securities business, **may occasionally** furnish Limited Extracts to its customers and clients … solely: (i) in written advertisements, educational material, sales literature or similar written communications; (ii) during telephone conversations not entailing the use of computerized voice synthesization, other electronic communication or similar technology; or (iii) in such other manner as NYSE may approve in writing."
> Definition ¶(m): "'**Limited Extracts**' means such limited portions of NYSE Data Products as NYSE, **acting in its sole discretion**, may determine to allow Customer to furnish to Customer's clients and customers. Examples of Limited Extracts may include a Derivative Summary or information regarding a single stock."

Definition ¶(b) "Controlled Display", verbatim — the sharpest sentence in the whole register for a product with an API:

> "'**Controlled Display**' means a display of all or part of a NYSE Data Product that the Customer delivers to an External User or Internal User **in a manner that prevents the External User or Internal User from readily manipulating the data contained in the products or from readily redistributing the products to others**. NYSE in its sole discretion shall determine whether a display qualifies as a 'Controlled Display.' **If a person can apply software to a display and thereby export data from the display (such as with API or DDE software), the display will not qualify as a Controlled Display.**"

¶6(g) TERMINATION OF LICENSE: "upon the termination of a License for a NYSE Data Product, Customer may no longer distribute the NYSE Data Product, **or information contained in or derived from the NYSE Data Product**."

**Establishes:** NYSE's proprietary-products regime treats *derived* information as inside the licence by default and puts the burden of proving an exception on the licensee, at NYSE's sole discretion. Contrast Nasdaq/UTP, which define an exit door. **Undercuts** any design that assumes derived output is automatically outside the licence.

**C5 · NYSE Agreement for Receipt and Use of Consolidated Network A Data and NYSE Market Data (CTCQ Vendor Agreement)** — https://www.ctaplan.com/publicdocs/ctaplan/NYSE_Vendor_Agreement_CTCQ.pdf · **Rev. 04/24** · Relevance **4**

¶1 definitions (extract):
> "(i) '**Interrogation Device**' means any terminal or other device, including, without limitation, any computer, data processing equipment, communications equipment, cathode ray tube, monitor or audio voice response equipment, **technically enabled to display, transmit or otherwise communicate, upon inquiry, Market Data in visual, audible or other comprehensible form.**"
> "(x) '**Subscriber**' means a recipient of one or more types of Market Data through a Ticker Display, Interrogation Service, Market Minder Service, or other Market Data Service from a Vendor, another data redisseminator or the Authorizing SROs."
> "(g) '**Indirect Access**' means access to one or more of the Authorizing SROs' Transmission Facilities through an intermediary and in a manner that (i) allows the access recipient to control the redistribution of Market Data or (ii) precludes the access provider (A) from exercising entitlement controls over the access recipient's use of Market Data in a manner that is satisfactory to NYSE…"

**Negative finding:** the CTCQ agreement contains **no definition of "Derived Data", "Display Use" or "Non-Display Use"**. Those live only in the separate CTA policies (C6) and the NYSE PDP documents.

**C6 · CTA Market Data Non-Display Use Policy** — https://www.ctaplan.com/publicdocs/ctaplan/Policy_CTA_Non_Display_with_FAQ.pdf · footer: **"Nov 2015"** · Relevance **5**

> "**Non-Display Use of real-time CTA Market Data means accessing, processing or consuming CTA Market Data, whether delivered via direct and/or redistributor data feeds, for a purpose other than in support of data recipient's display or further internal or external redistribution.**"
> Same eleven examples as C1, including "**Investment analysis**" and "**Price referencing for algorithmic trading**".
> "There are no monthly reporting requirements for Non-Display Use." / "**NYSE reserves the right to audit a data recipient's use of CTA Market Data** in accordance with the data recipient's applicable market data agreement."

**C7 · CTA Nonprofessional Subscriber Policy** — https://www.ctaplan.com/publicdocs/ctaplan/Policy_Non-Professional_Subscribers_CTA.pdf · footer: **"November 2016"** · Relevance **5** — definition identical to C2 verbatim, plus:

> "Is a natural person receiving market data solely for her personal, non-business use **through an account in an organization's name** … — **No** … if the market data is received through an organization's account, this individual is classified as a Professional Subscriber. This is because the account through which the market data is received is not registered to a natural person."

**Directly adverse** to any design where the Company or the engine builder holds one account and serves members under it.

**C8 · CTA Exhibit C — Agreement for Receipt and Use of Market Data; Additional Provisions ("Click-On" Agreements)** — https://www.ctaplan.com/publicdocs/ctaplan/Exhibit_C_Subscriber_Click-On_Agreement.pdf · **"Updated March 1, 2014"** · Relevance **4**

> "(i) **NYSE must have approved the form and content of, and manner of entry into, the Click-On Agreement**, and any change to that form, content and manner of entry, prior to its use."
> "(iv) Customer must prevent the subscriber from having the ability to manifest its assent to the Click-On Agreement **unless all of the agreement's terms and conditions have first appeared on the computer screen.**"
> "(c) INDEMNIFICATION — Customer shall defend and indemnify the Authorizing SROs … from and against any suit … that arises out of or relates to **the unenforceability of a Click-On Agreement** due to the manner in which the subscriber manifests its assent…"

**Establishes:** if the hosted engine shows real-time consolidated quotes to members, the operator must administer an SRO-approved click-on subscriber agreement per member and indemnify on its enforceability. Note the interaction with Track 3 (whose surface takes the act).

---

### D. OPRA

**D1 · OPRA Vendor Agreement** — https://cdn.opraplan.com/documents/OPRA_Vendor_Agreement.pdf · Relevance **4**

> "(g) The term '**Subscriber**' means a person that has entered into a Professional Subscriber Agreement with OPRA or a Subscriber Agreement with a vendor or with a Correspondent Subscriber, **which authorizes the person to access OPRA Data for its own use and not for the purpose of retransmitting or redistributing OPRA Data to any other person.**"
> "(i) The term '**Professional Subscriber**' means a Subscriber that is not a Nonprofessional Subscriber, and has entered into either a Professional Subscriber Agreement with OPRA or a Subscriber Agreement with a vendor or with a Correspondent Subscriber."
> ¶11: "Upon reasonable notice to Vendor, an authorized representative of OPRA shall be **permitted to inspect Vendor's equipment and facilities** used in connection with the dissemination or retransmission of OPRA Data…"
> ¶14(g): "Vendor shall make **all of its records** with respect to its activities as a vendor of OPRA Data **available for inspection by duly authorized representatives of OPRA** upon reasonable notice during ordinary business hours."

**Negative finding:** the word "derive"/"derived" **does not appear anywhere** in the OPRA Vendor Agreement. OPRA publishes no derived-data policy.

**D2 · OPRA Electronic Form of Subscriber Agreement — Addendum for Nonprofessionals** — https://cdn.opraplan.com/documents/OPRA_Electronic_Subscriber_Agreement.pdf · Relevance **5**

> "(a) You are either a '**natural person**' (an individual human being) or a '**qualifying trust**.' You are not a corporation, partnership, limited liability company, or other form of entity…"
> "(b) If you are a natural person, you shall use the OPRA Data **solely in connection with your personal investment activities and the personal investment activities of your immediate family members** and qualifying trusts of which you are the trustee or custodian. … **In any case, you shall not use the OPRA Data in connection with any trade, business, professional or other commercial activities.**"
> "(c) You are not a 'Professional.' For a natural person who works in the United States, a '**Professional**' is a natural person who is: (i) registered or qualified with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange/association, or any commodities/futures contract market/association, (ii) **engaged as an 'investment adviser,' as that term is defined in the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act)**; or (iii) employed by a bank or other organization exempt from registration…"

**D3 · OPRA Non-Display Use Declaration** — https://cdn.opraplan.com/documents/OPRA_Non_Display_Declaration.pdf · Relevance **5**

> "**Non-Display Use refers to the accessing, processing or consuming by an OPRA data feed recipient … of OPRA market data … for a purpose other than in support of the data feed recipient's display or further internal or external redistribution.**"
> "Non-Display Use includes, without limitation, portfolio valuation; operations control programs; **investment analysis**; order verification; surveillance programs; risk management; and compliance. Also, trading (such as in a 'black box' or **a trading engine that performs automated trading, algorithmic trading or program trading**, or generates arbitrage or program trading orders); automated order or quote generation and/or order pegging; and **price referencing for algorithmic trading**;"
> Fees: "Category 1 — **$2,000 /Month** Enterprise Fee … Category 2 — **$2,000/Month** … Category 3 — **$2,000/Month/Platform**"

**D4 · OPRA Policy With Respect To Definition Of The Term "Nonprofessional"** — https://cdn.opraplan.com/documents/OPRA_Definition_Nonprofessional.pdf · effective **August 27, 2008** · Relevance **3**

**D5 · OPRA Policy With Respect To Hosted Solutions** — https://cdn.opraplan.com/documents/OPRA_Policy_With_Respect_To_Hosted_Solutions.pdf · Relevance **5** — the closest published exchange treatment of a "hosted engine sponsored by one party, data supplied by a licensed vendor" split:

> "A '**Hosted Solution**' is a market data delivery vehicle that (i) displays OPRA Data **only on a 'per inquiry' basis**, (ii) is administered by an OPRA Vendor on behalf of a sponsoring client organization (the 'Client Organization'), (iii) is subject to the administrative control of the OPRA Vendor and (iv) clearly and prominently identifies the OPRA Vendor."
> "In general, **a person that redistributes OPRA Data 'externally' – i.e., outside its own organization – is a 'Vendor' for OPRA's purposes and is required to execute a Vendor Agreement with OPRA and pay a Redistribution Fee. This is true regardless of the method used to redistribute OPRA Data, and extends to the redistribution of OPRA Data by means of the Internet.**"
> "**the OPRA Vendor must control the data product for purposes of entitlement/access** … With each person that has access to current OPRA Data via the Hosted Solution, the OPRA Vendor must either have an OPRA Subscriber Agreement in place with that person or verify that the person has entered into a Professional Subscriber Agreement directly with OPRA."
> "If any of the Hosted Solutions … does not satisfy these requirements … **OPRA would regard the Client Organization as another OPRA Vendor**, and require the Client Organization to be a party to an OPRA Vendor Agreement and pay a Redistribution Fee."

---

### E. The most current definition on the market (Cboe, effective 1 April 2026)

**E1 · SEC Release No. 34-105304; File No. SR-CboeEDGX-2026-027, 91 FR 22896 (Apr. 28, 2026)** — https://www.federalregister.gov/documents/2026/04/28/2026-08189/ · Type: SEC notice of filing and immediate effectiveness · Status: immediately effective; codifies Cboe Global Markets North American Data Policies **effective April 1, 2026**. Parallel filings same day for BZX, BYX, C2, EDGA, EDGX and Cboe Options. · Relevance **5**

> "The proposed definition adopted in Cboe Global Markets North American Data Policies (effective April 1, 2026) now states that, **Non-Display Usage means any method of accessing, or facilitating access to, a Market Data product that involves access or use by a machine or automated device for a purpose that is not solely in support of display for a natural person or persons.** … the proposed definition is intended to **capture changes in the evolving landscape of technology with firms more frequently leveraging Large Language Models ('LLMs')**."
> Prior definition, for contrast (quoted in the same filing): "Non-Display Usage meant any method of accessing a Market Data product that involved access or use by a machine or automated device **without** access or use of a display by a natural person or persons."
> n.4: "**Display Usage means the access to and/or use of a Market Data product by User via a graphical user interface, application or other medium which displays data.**"
> n.5/n.6: "**Uncontrolled Distributors** are defined as External Distributors that **do not control the entitlements of and display of information to its Users**." / "**Controlled Distributors** both (i) provide data to a User and (ii) control the entitlements of and display of information to such User."
> User-fee exemption ("Permitted Purposes"): "development, quality assurance, testing, sales support relating to redistribution, or for technical monitoring of systems using a Product and not in support of other commercial/business functions".

**This is the most important single finding in the track.** The 2026 definition moves the line from *"without a display"* to *"not **solely** in support of display"*. Under the old wording, a machine that reads a price and then shows something to a human was arguably display-only. Under the new wording, a machine that reads a price **for the additional purpose of evaluating a rule** is no longer "solely in support of display" and falls into Non-Display Usage — even though a human sees the result. **Strongly undercuts** the architecture's most natural defence on flow 2 and flow 3, at least at Cboe, and signals the direction of travel at the other venues.

---

### F. Broker API data displayed outside the broker's own interface

**F1 · Alpaca Terms and Conditions** — https://s3.amazonaws.com/files.alpaca.markets/disclosures/library/TermsAndConditions.pdf (Alpaca Securities LLC / Alpaca Crypto LLC) · Relevance **4**

> "**Content is provided exclusively for personal and noncommercial access and use.** No part of the Service or Content may be copied, reproduced, republished, uploaded, posted, **publicly displayed**, encoded, translated, transmitted or distributed in any way (including 'mirroring') **to any other computer, server, web site or other medium for publication or distribution or for any commercial enterprise, without Alpaca's express prior written consent.**"
> "By selecting the 'Pro' market data plan … you agree to: (i) **the NASDAQ OMX Global Subscriber Agreement, or AGREEMENT FOR MARKET DATA DISPLAY SERVICES**, each to the extent applicable".

**Establishes:** a documented retail broker with an API passes the exchange subscriber agreement straight through to the customer, and separately forbids public display or transmission of its Content to another computer or server for any commercial enterprise. It does not grant the customer a right to have a third party's hosted product display the broker's data.

**F2 · Interactive Brokers — what is publicly published** — https://www.interactivebrokers.com/en/index.php?f=14193 (Market Data pricing, retrieved 5 Sep 2026) · Relevance **3**

> "Professional Subscriber: Includes organizations (corporations, LLCs, partnerships) and individuals using data for business purposes. Also includes registered securities or investment advisors, financial services employees, and similar roles."
> "Non-Professional Subscriber: Any individual not registered with financial regulatory bodies, not acting as an investment advisor, and not employed by financial institutions performing registration-exempt functions."
> "Must subscribe to the standard NASDAQ TotalView-OpenView data. **This data is intended for display use only.**"
> "Service **not eligible for use in alternative display formats**." [European Equity and Derivative Display Value Bundle]
> "All clients initially receive 100 concurrent lines of real-time market data (**which can be displayed in TWS or via the API**)…"

IBKR's public "Market Data Agreements" page (https://www.interactivebrokers.com/en/accounts/forms-and-disclosures-market-data.php) lists **exactly one** downloadable agreement — "GFIS Subscriber Agreement, **May 1, 2026**" — and states: "The following forms are samples of the documents presented in our Account Registration System and may not be submitted to Interactive Brokers." **See Negative findings** for what could not be retrieved and what was tried.

---

## The deliverable — flow classification table

Classification is stated **as the published terms classify it**, per document, with the venue disagreements shown. Nothing here is a legal conclusion; where documents point different ways the disagreement is stated rather than resolved.

| # | Flow | Display / Derived / Non-display | Licence the published terms require | Who must hold it | Confidence |
|---|---|---|---|---|---|
| **1** | Quotes and prices shown to a paying member inside the **hosted engine's UI** | **Display use.** Nasdaq §2: "display … on a screen or other mechanism designed for access or use by a natural person". Cboe (Apr 2026): "via a graphical user interface, application or other medium which displays data." | (a) **Vendor:** a Tiingo **redistribution licence** — TOS §7.3 "All data via the API is for internal consumption only… Redistribution is only available upon special request"; docs §1.1.6 names "a website or app" as redistribution. Published rate: $250/mo startup, $500/mo enterprise (EOD+IEX Display Redistribution). **Unless** every member supplies their own Tiingo token (Developer Program), in which case no redistribution licence and the *member* holds the subscription. (b) **Exchange/SIP (only if real-time exchange data is shown):** external Distributor status, per-Subscriber Professional/Non-Professional reporting, an SRO-approved subscriber (click-on) agreement per member, Nasdaq Hosted Display Solution **pre-approval** if the panel is a widget/iframe, OPRA Vendor Agreement + Redistribution Fee if options quotes. | **The engine builder** as Distributor/Vendor; **each member** as Subscriber under a subscriber agreement. If members BYO-token, the member alone. | High |
| **2** | Prices consumed by **rule evaluation, never shown** (threshold fires or not) | **Non-display use — squarely.** NYSE/CTA/OPRA/UTP all list "**Investment analysis**", "**Price referencing for algorithmic trading**", "automated order or quote generation" as Non-Display examples. OPRA adds "a trading engine that performs automated trading, algorithmic trading or program trading". | Non-Display Use **declaration** + fee, per category. NYSE/CTA: annual Declaration by 31 Jan (NYSE) / 1 Jan (CTA); Category 1 if on own behalf, **Category 2 if on behalf of clients** — and the engine evaluates *members'* rules, which points to Category 2. OPRA: **$2,000/month** per category. UTP: "Non-Display Use on Behalf of Customer Fee". Nasdaq: fee-liable per Device/Subscriber, "regardless of whether the … trading infrastructure is … locally on an individual's desktop or Device." Vendor side: Tiingo prices this as "Display Redistribution / **Non-Display**" at its top tier only. | **The engine builder** (it is the data recipient whose machine consumes). Not the member. | High |
| **3** | **A signal derived from price data, shown to the member** ("rule X fired on Y at Z") | **Split — this is the contested flow.** ▸ *Vendor (Tiingo):* expressly **permitted Derived Product** — "rankings, scores, **trading signals**, classifications, forecasts … that do not expose or reproduce the underlying Tiingo Data". ▸ *Nasdaq / UTP:* **Derived Data** if it cannot be reverse-engineered to recreate the Information nor used to create a reasonable substitute/facsimile. A boolean condition-met flag carrying no price satisfies both tests on their face. **But UTP: single-security Derived Data containing price data is FEE LIABLE at underlying rates; only multiple-security Derived Data is not fee liable.** A per-instrument signal is single-security. ▸ *NYSE PDP:* the opposite default — "any … use of NYSE Data Products, or of information contained in NYSE Data Products, **or of information derived from that information, is prohibited**" except as Exhibit A allows, "in its sole discretion". ▸ *OPRA:* **no derived-data concept published at all**. ▸ *Cboe (from 1 Apr 2026):* the *upstream* machine use is Non-Display Usage regardless, because it is "not **solely** in support of display". | The **upstream** consumption (flow 2) is licensed and fee-liable in every regime. Whether the **downstream signal** is separately licensable: **Nasdaq requires an ex-ante "Application for Derived Data Usage"** describing "how the derived data generated cannot be reverse engineered … or be used to create other data that is recognizable as a reasonable substitute", plus a **Platform Declaration**. UTP: non-fee-liable Derived Data may be distributed without Recipient agreements, "but … the Vendor is required to **indemnify** in the event of a claim." NYSE: written approval, sole discretion. Tiingo: no separate approval if §1.6(c)(i)+(ii) are met. | **The engine builder** files the derived-data declaration and carries the indemnity. | Medium — see the reconstruction caveat below |
| **4** | Prices shown inside the **runtime's order-composition panel on the member's machine** | **Display use to a natural person — but reached as Uncontrolled Product and, upstream, as Non-Display.** Nasdaq §7: "Non-Display is fee-liable regardless of whether the … trading infrastructure is … **Locally on an individual's desktop or Device**." UTP: an **API** is an **Uncontrolled Product**; "**Professional Uncontrolled Recipients may not use third party software** to qualify for this exception"; and where the recipient "uses third party software", "the UTP Plan **will charge the higher Professional Subscriber rates or Uncontrolled Recipient rates**." NYSE: a display from which software can export data (API/DDE) "**will not qualify as a Controlled Display**". | If the prices reach the runtime **from the engine**: the engine is redistributing to an uncontrolled recipient — Distributor/Vendor licence + per-recipient reporting at the higher uncontrolled rate, and (Tiingo) a redistribution licence. If the prices reach the runtime **from the member's own broker**: see flow 5. If from the **member's own Tiingo token**: internal/personal use, member's own subscription suffices. | **The engine builder** if it supplies the prices; **the member** if the runtime fetches under the member's own credentials. | High |
| **5** | Data returned by the **member's own broker API, displayed outside the broker's own interface** | **Display use, by the member, on an uncontrolled channel.** The broker is the Vendor/Distributor; the member is the Subscriber; the third-party software is exactly what UTP's "third party software" carve-out withdraws. | The member's existing **broker subscriber agreement**, which on its face authorises "access … **for its own use and not for the purpose of retransmitting or redistributing** … to any other person" (OPRA Vendor Agreement ¶1(g)); Nonprofessional status further requires use "**solely for his/her personal, non-business use**" (NYSE/CTA) and "solely in connection with your personal investment activities … not … in connection with any trade, business, professional or other commercial activities" (OPRA). Alpaca additionally forbids transmission "to any other computer, server, web site or other medium … for any commercial enterprise". **Nothing retrieved grants the member a right to route broker data into a third party's hosted product; the terms retrieved point the other way if the data leaves the member's own machine.** Keeping it strictly local to the runtime is materially different from sending it to the engine. | **The member** holds the broker subscriber agreement. **The engine builder** would need its own licence if the data reaches its servers. | Medium-high (High for "data must not leave the member's machine"; the broker-specific published term for IBKR could not be retrieved — see Negative findings) |
| **6** | **Historical price series** used to backtest, or displayed as a chart | **Two different answers.** *Backtest (never shown):* Non-display use on every definition; Tiingo §1.6(c) expressly permits distributing "aggregate or statistical results of a backtest, such as Sharpe or Sortino ratios, alpha, beta, maximum drawdown, win rate, or aggregate profit and loss" and "percentage returns, growth rates, or percentage changes, **provided that their scope, granularity, and presentation do not permit the underlying Tiingo Data to be reconstructed**". *Chart shown to a member:* **display use, and expressly prohibited on the vendor side without redistribution** — Tiingo §1.6(c) prohibited list: "tables, files, feeds, APIs, databases, dashboards, **charts**, downloads, or query tools that display, deliver, or permit extraction of Tiingo Data". A time-series chart is by construction a sufficiently complete sequence. | Backtest: Tiingo **Commercial** ("internal commercial use", $50/mo) is sufficient for the engine builder's own internal use, **plus** storage rights — §1.6(b) permits persistence only while a Paid Plan is active and requires **permanent deletion from every system including backups** on termination or downgrade. Chart to members: **redistribution licence** (Tiingo), and on the exchange side, historical use of real-time proprietary data is separately policed (NYSE "Historical Use of Real-Time NYSE Proprietary Data Products" policy). | **The engine builder** for both, unless members BYO-token. | High |

**The reconstruction caveat on flow 3.** Every regime's derived-data test turns on whether the underlying data can be recovered. A single signal cannot. **A journal of signals can.** Tiingo §1.6(c) prohibits "returns, differences, ratios, or other calculations supplied with an anchor, reference value, key, lookup table, or **sufficiently complete sequence that permits reconstruction**", and Nasdaq's own definition of "Information" reaches "any element of information used or processed in such a way that Exchange Information or a substitute … can be **identified, recalculated or re-engineered** from the processed information." A rule of the form "fires when price crosses X" plus a timestamped fire/no-fire series **brackets the price**. The configuration's append-only journal (source → policy version → composed order → exact terms shown) is precisely such a series, and it also stores **the exact order terms shown**, which will normally include a price band. On the face of the published terms that is a much weaker derived-data position than a bare signal. This is the finding most worth putting to counsel.

---

## Definitions register — side by side, verbatim

### Display use

| Source | Verbatim | Pin-cite / version |
|---|---|---|
| **Nasdaq** | "Any method of accessing Exchange Information that involves the display of such data on a screen or other mechanism designed for access or use by a natural person or persons." | US Equities and Options Data Policies §2, at 4 · **Version 2.6 (updated June 1, 2024)** |
| **Nasdaq (SEC-filed rule)** | "Display Usage means any method of accessing Depth-of-Book data that involves the display of such data on a screen or other visualization mechanism for access or use by a natural person or persons . . ." | Nasdaq Equity 7, §123(a)(2)(A), quoted at **87 FR 47234, 47235 n.11 (Aug. 2, 2022)**, Rel. 34-95375 |
| **NYSE / CTA** | *No affirmative definition published.* Display is defined only as the residual of Non-Display Use ("for a purpose other than in support of data recipient's display"). | NYSE Non-Display Use Policy, **Jan 2015 v2.0**; CTA Non-Display Use Policy, **Nov 2015** |
| **NYSE (proximate concept: Controlled Display)** | "a display of all or part of a NYSE Data Product that the Customer delivers to an External User or Internal User in a manner that prevents the External User or Internal User from readily manipulating the data … or from readily redistributing the products to others. … **If a person can apply software to a display and thereby export data from the display (such as with API or DDE software), the display will not qualify as a Controlled Display.**" | NYSE PDP Vendor Agreement, definitions ¶(b) |
| **OPRA** | *No definition published.* Display is the residual of the Non-Display Use Declaration's wording. | OPRA Non-Display Use Declaration |
| **Cboe** (comparator, current) | "the access to and/or use of a Market Data product by User via a graphical user interface, application or other medium which displays data." | Cboe Global Markets North American Data Policies, **eff. Apr. 1, 2026**, quoted at 91 FR 22896, 22897 n.4 |

### Non-display use

| Source | Verbatim | Pin-cite / version |
|---|---|---|
| **Nasdaq** | "Any method of accessing Exchange Information other than Display Usage." / "a means of accessing Nasdaq data that involves automated access or use by a machine, without access or use of a Display by a natural person or persons." | Data Policies §2 at 5; §7 at 20 · **v2.6** |
| **Nasdaq (SEC-filed rule)** | "any method of accessing Depth-of-Book data that involves access or use by a machine or automated device without access or use of a display by a natural person or persons." | Equity 7 §123(a)(2)(B), at 87 FR 47235 n.12 |
| **NYSE** | "accessing, processing or consuming NYSE Market Information, delivered via direct and/or Redistributor data feeds, **for a purpose other than in support of data recipient's display or further internal or external redistribution.**" | NYSE Non-Display Use Policy, definition · **Jan 2015 v2.0** |
| **CTA** | "accessing, processing or consuming CTA Market Data, whether delivered via direct and/or redistributor data feeds, for a purpose other than in support of data recipient's display or further internal or external redistribution." | CTA Non-Display Use Policy · **Nov 2015** |
| **UTP** | "accessing, processing or consuming data … for a purpose other than **solely** facilitating the delivery of the data to the Data Feed Recipient's display or for the purpose of further internally or externally redistributing the data." | UTP Plan Data Policies at 9 · **published September 2023** |
| **OPRA** | "the accessing, processing or consuming by an OPRA data feed recipient (either an OPRA vendor or an OPRA professional subscriber) of OPRA market data, received on a current basis … for a purpose other than in support of the data feed recipient's display or further internal or external redistribution." | OPRA Non-Display Use Declaration |
| **Cboe** (current) | "any method of accessing, **or facilitating access to**, a Market Data product that involves access or use by a machine or automated device **for a purpose that is not solely in support of display for a natural person or persons**." | Cboe N. Am. Data Policies **eff. Apr. 1, 2026**, at 91 FR 22898 |

**The visible difference:** Nasdaq's rule and OPRA's declaration use "**without** … a display" — an all-or-nothing test. NYSE, CTA, UTP and now Cboe use "**for a purpose other than in support of** / not **solely** in support of display" — a purpose test that catches machine processing whose output *is* eventually shown. Under the first formulation flow 2 might be argued into display; under the second it cannot be, and under Cboe's April 2026 wording neither can flow 3's upstream evaluation.

### Derived data

| Source | Verbatim | Pin-cite / version |
|---|---|---|
| **Nasdaq** | "any information generated in whole or in part from Exchange Information such that the information generated **cannot be reverse engineered to recreate Exchange Information or be used to create other data that is recognizable as a reasonable substitute** for such Exchange Information." Examples: "swaps · swaptions · volume only data · spread bets · contracts for difference · volume weighted price (VWAP)". Note 3: index creation across multiple securities "is exempt from subscriber fees. However, the Distributor **must report the Non-Display devices**." | Data Policies §3 at 6 · **v2.6** |
| **Nasdaq (AI Policy)** | "information generated in whole or in part from the Nasdaq Information such that the information generated cannot be reverse engineered to recreate the Nasdaq Information, or be used to create other data that is recognizable as a reasonable substitute ('**Derived Data**')" — and "**Distribution of any derivative work, including but not limited to Derived Data … is strictly prohibited without first entering into an appropriate license agreement with Nasdaq and may require prior approval.**" | Nasdaq Data – AI Policy §§2–3 · **Version 1.0, Feb. 5, 2025** |
| **UTP** | "**Derived Data consists of pricing data or other information that is created in whole or in part from the UTP Information.** To be considered Derived Data: 1) The Derived Data cannot be reverse engineered to recreate the Information, and 2) The Derived Data cannot be used to create other data that is recognized to be a reasonable facsimile for the UTP Information." Single-security derived data containing price = **fee liable**; multiple-security = **not fee liable**. | UTP Plan Data Policies at 10 · **Sept 2023** |
| **NYSE (PDP)** | No affirmative definition. The operative rule is the opposite: "any redissemination or other use of NYSE Data Products, or of information contained in NYSE Data Products, **or of information derived from that information, is prohibited**" except per Exhibit A, "in its sole discretion". Narrow exception: "**Limited Extracts** … such limited portions … as NYSE, acting in its sole discretion, may determine to allow Customer to furnish to Customer's clients and customers", furnishable only "occasionally" and only in written advertisements/sales literature or telephone conversations. | PDP Vendor Agreement ¶6(a), ¶6(i), definition ¶(m) |
| **NYSE / CTA-CQ (consolidated)** | **None published.** The CTCQ Vendor Agreement (Rev. 04/24) contains no "derived data" definition; no NYSE derived-data policy PDF exists at the published policy path (404 confirmed). | Negative finding |
| **OPRA** | **None published.** The word "derive" does not appear in the OPRA Vendor Agreement. | Negative finding |
| **Tiingo (vendor)** | "Data, results, content, or products created through the transformation, analysis, or processing of Tiingo Data … you may create, retain, use, and distribute a Derived Product without separate written approval only if … (i) it is not, and cannot reasonably be used as, a substitute for … any Tiingo Data or Service; and (ii) it cannot reasonably be reverse engineered, reconstructed, decoded, disaggregated, matched, combined with other information, or otherwise used to identify, recover, or reproduce any underlying Tiingo Data." | TOS §1.6(c) · **v1, eff. 16 Jan 2022, last updated 5 Aug 2026** |

**Answer to sub-question (c), stated as the documents state it — never as law.** Three of the four regimes that publish a test use the **same two-limb test**: (1) not reverse-engineerable to recreate the source data, and (2) not usable to create a reasonable substitute/facsimile. No published document specifies a *quantum* of transformation; the test is functional, not formal. **A boolean "condition met" signal is not addressed by name in any exchange document.** The nearest published treatments are: Nasdaq's permitted-example list (swaps, VWAP, volume-only) which contains no boolean; UTP's rule that single-security derived data **containing price data** is fee-liable and multiple-security derived data is not — which implies a single-security signal *without* price is at least arguably outside the fee schedule; and Tiingo's list, which is the only document found anywhere that names "**trading signals**" as a permitted derived product. **Nasdaq's answer to "is a boolean derived data or outside the licence" is procedural, not substantive: you file the Application for Derived Data Usage and Nasdaq decides.** That is the finding. Nothing retrieved says a boolean is outside the licence by right.

### Professional vs Non-Professional Subscriber — the fee-deciding definition

| Source | Verbatim | Pin-cite / version |
|---|---|---|
| **Nasdaq** | "**Non-Professional Subscriber** — Any natural person who is NOT: (a) registered or qualified in any capacity with the SEC, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association or any commodities or futures contract market or association; (b) engaged as an 'investment advisor' as that term is defined in Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or not registered or qualified under that Act); **or** (c) employed by a bank or other organization exempt from registration … **Professional Subscriber** — All other persons who do not meet the definition of Non-Professional User." Plus: "**All Subscribers are deemed to be Professional unless they are qualified as Non-Professional Subscribers**"; "Information is licensed **only for personal use**"; "**all Internal use by an organization is Professional**." | Data Policies §5 at 12 · **v2.6** |
| **NYSE / CTA** | "any natural person who receives market data **solely for his/her personal, non-business use** and who is not a 'Securities Professional,' meaning that the person is: a — not registered or qualified with the SEC, CFTC, any state securities agency, any securities exchange/association, or any commodities/futures contract market/association; **and** b — not engaged as an 'investment advisor,' as that term is defined in Section 202(a)(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); **and** c — not employed by a bank or other organization exempt from registration…" | NYSE Nonprofessional Subscriber Policy, **April 2015**; CTA Nonprofessional Subscriber Policy, **November 2016** (identical wording) |
| **OPRA** | "(a) You are either a '**natural person**' … or a '**qualifying trust**.' You are not a corporation, partnership, limited liability company, or other form of entity … (b) you shall use the OPRA Data **solely in connection with your personal investment activities and the personal investment activities of your immediate family members** … **you shall not use the OPRA Data in connection with any trade, business, professional or other commercial activities.** (c) You are not a 'Professional.' … a 'Professional' is a natural person who is: (i) registered or qualified with the SEC, CFTC, any state securities agency, any securities exchange/association, or any commodities/futures contract market/association, (ii) engaged as an '**investment adviser**,' as that term is defined in the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); or (iii) employed by a bank or other organization exempt from registration…" | OPRA Electronic Form of Subscriber Agreement, Addendum for Nonprofessionals, §1(a)–(c); "qualifying trust" and "immediate family members" defined in the Addendum footnotes; revised definition effective **August 27, 2008** |
| **IBKR (broker's restatement)** | "Non-Professional Subscriber: Any individual not registered with financial regulatory bodies, not acting as an investment advisor, and not employed by financial institutions performing registration-exempt functions." | interactivebrokers.com/en/index.php?f=14193, retrieved 5 Sep 2026 |

**Three visible differences that matter.**
1. **Conjunction.** Nasdaq's limbs are joined by "**or**" ("is NOT: (a) …; (b) …; **or** (c) …"), NYSE/CTA's by "**and**". Read literally the Nasdaq formulation is broader in disqualifying effect. Neither has been construed in any authority found.
2. **Entities.** NYSE/CTA and OPRA both exclude organisations outright ("**only natural persons can qualify as Nonprofessionals**" — NYSE Trust FAQ; "You are not a corporation, partnership, limited liability company, or other form of entity" — OPRA). OPRA alone admits "qualifying trusts". CTA adds that a natural person receiving data **through an organisation's account is a Professional Subscriber**, because "the account through which the market data is received is not registered to a natural person."
3. **Limb (b) is the live risk in this configuration.** All four texts disqualify a person "engaged as an 'investment advisor' as that term is defined in Section 202(a)(11) … **whether or not registered or qualified under that Act**." That is the same statutory term the rest of the P7 commission is testing. **The market-data Non-Professional rate and the Advisers Act §202(a)(11) analysis are wired to the same definition.** If any member is characterised as engaged as an investment adviser within §202(a)(11), that member is a Professional Subscriber for market-data purposes at the Professional rate, and the Distributor that qualified them as Non-Professional is retroactively liable (NYSE: "the vendor will be liable for **retroactive fees** billed by NYSE for the subscriber at the professional rate"). Cross-refer to S1–S5.

---

## Adverse register

| # | Authority / mechanism | Verbatim | Threat | Does the configuration distinguish? |
|---|---|---|---|---|
| **AD-1** | **Cboe amended Non-Display Usage definition**, eff. 1 Apr 2026 (Rel. 34-105304, 91 FR 22896) | "any method of accessing, **or facilitating access to**, a Market Data product that involves access or use by a machine or automated device **for a purpose that is not solely in support of display** for a natural person or persons." | **5** | **No.** The engine's rule evaluation is by definition a purpose additional to display. "Facilitating access to" also reaches the engine's role in getting data to the member's runtime. This is the newest definition in the market and the other venues' NYSE/CTA/UTP wording already reads the same way. |
| **AD-2** | **UTP Uncontrolled Product / third-party-software rule** (UTP Data Policies, Sept 2023, at 3–4) | "Examples of Uncontrolled Products … • **Application Program Interface ['API']**"; "**Professional Uncontrolled Recipients may not use third party software to qualify for this exception**"; "if … the Uncontrolled Recipient utilizes the data on more than one device, **or uses third party software**, then the UTP Plan will charge the higher Professional Subscriber rates or Uncontrolled Recipient rates." | **5** | **No.** The architecture is *definitionally* third-party software receiving data over an API onto a second device. It lands in the most expensive bucket by design. |
| **AD-3** | **NYSE "Controlled Display" exclusion** (PDP Vendor Agreement, def. ¶(b)) | "**If a person can apply software to a display and thereby export data from the display (such as with API or DDE software), the display will not qualify as a Controlled Display.**" | **5** | **No.** The engine's published signal API and the runtime's ability to read the panel are exactly the excluded case. Controlled-Display pricing is unavailable. |
| **AD-4** | **NYSE derived-information default** (PDP Vendor Agreement ¶6(a)) | "any redissemination or other use of NYSE Data Products, or of information contained in NYSE Data Products, **or of information derived from that information, is prohibited**" except per Exhibit A, "NYSE may … determine **in its sole discretion**". | **4** | **No.** On NYSE proprietary products there is no derived-data safe harbour to design toward; the only exception is "Limited Extracts", restricted to written sales literature and telephone conversations — expressly **not** electronic communication. |
| **AD-5** | **Nasdaq AI Policy prohibition on distributing derivative works** (v1.0, Feb. 5, 2025) | "**Distribution of any derivative work, including but not limited to Derived Data … is strictly prohibited without first entering into an appropriate license agreement with Nasdaq and may require prior approval.**" Plus: "**Granting access to Nasdaq Information in an open-source AI model is prohibited**"; "Dissemination … must be controlled through a **technical entitlement system that can be interrogated for audit**". | **4** | **Partly.** The runtime is open-source but is not an AI model, so the open-source prohibition is not on its face engaged. The entitlement-system requirement is engaged and the architecture has no exchange-facing entitlement control over the local runtime. Note the internal tension with Data Policies §3, which treats some Derived Data as non-fee-liable. |
| **AD-6** | **CTA account-registration rule** (CTA Nonprofessional Policy, Nov 2016) | "if the market data is received **through an organization's account**, this individual is classified as a **Professional Subscriber**. This is because the account through which the market data is received is not registered to a natural person." | **4** | **Yes, if BYO-token.** If each member holds their own vendor subscription and their own broker subscriber agreement, no organisation's account intervenes. If the Company or the engine builder holds one key and serves members, every member is a Professional Subscriber. |
| **AD-7** | **Tiingo prohibited-derived list** (TOS §1.6(c)) | prohibits "**charts** … that display, deliver, or permit extraction of Tiingo Data" and "returns, differences, ratios, or other calculations supplied with an anchor, reference value, key, lookup table, or **sufficiently complete sequence that permits reconstruction**". | **4** | **No** for charts and for the signal journal. **Yes** for isolated boolean signals with no price and no sequence. The journal design cuts against the configuration here. |
| **AD-8** | **Tiingo deletion-on-termination** (TOS §1.6(b)) | "you must promptly and permanently delete all Tiingo Data from **every system owned, leased, or controlled by you or operated on your behalf**, including production systems, local storage, logs, queues, archives, backups, disaster-recovery systems, and **systems used for legal, regulatory, or compliance retention**." | **4** | **No, and it collides with the journal.** The append-only provenance journal is a compliance-retention system. §1.6(b) requires its Tiingo-derived price content to be deleted on lapse; only Derived Products satisfying §1.6(c) may be retained. Design point: the journal must record derived values, not raw vendor prices, if it is to survive termination. |
| **AD-9** | **Nasdaq §7 Distributor Audit** (Global Data Agreement v4.5) | "Distributor's System and Distributor's Service … to be reviewed by **Nasdaq personnel and/or auditors of Nasdaq's choice**"; "Nasdaq will make reasonable efforts to provide at least **four (4) weeks advance written notice**, unless the audit is scheduled due to **suspected material** [non-compliance]"; "**Nasdaq's determination (the 'Final Audit') shall be deemed conclusive**"; underreported amounts "**remitted to Nasdaq, together with applicable interest within sixty (60) days**"; where a Final Audit "discloses an [understatement] … [of more than] **ten percent (10%) of the reported number of Reportable Units** … reimburse Nasdaq … for any **audit, legal or administrative costs**". | **5** | **No.** This is the practical enforcement mechanism, and it binds whoever signs the GDA — i.e. the engine builder if it is a Distributor. |
| **AD-10** | **NYSE / CTCQ audit and records** (CTCQ ¶11(a)–(d); PDP ¶11(b)–(d)) | "Customer shall **preserve each such item for not less than three years**"; "During the term of this Agreement **and for three years thereafter**, Customer shall assure that any authorized representative of NYSE is able (i) to examine Customer's books and records … (iii) **to otherwise perform any auditing functions necessary to verify Customer's compliance**"; "At the request of NYSE, Customer shall have audited, **by an independent certified public accountant satisfactory to NYSE**, a list of all Data Recipients…"; PDP ¶11(d): periodic online certification via nysedata.com. | **5** | **No.** |
| **AD-11** | **NYSE charges for unauthorised receipt** (PDP Vendor Agreement ¶10(d)) | Customer shall pay "(i) any applicable charge(s) that would have been imposed … had it been authorized or reported; and (ii) an **administrative fee equal to ten percent** of those charges. Customer's payment obligations apply regardless of whether a person responsible for an unauthorized provision or use received the NYSE Data Products from Customer directly **or from a person in the chain of dissemination** that began with an unauthorized provision or use by Customer. **NYSE reserves the right to recover punitive damages for any deliberate breach of good faith and the like.**" | **5** | **No.** Note "chain of dissemination" — the engine builder would carry liability for a member's runtime's downstream use. |
| **AD-12** | **NYSE indirect-bill annual audit** (NYSE Market Data Policy Package, Indirect Bill, at 11–12) | "NYSE requires that an audit be conducted **within six months** of Vendor's eligibility for indirect bill model **by a firm approved by the NYSE** or by their internal audit department so long as the audit and its findings are **signed by the Chief Compliance Officer** … **Thereafter, an annual audit is required** and must be submitted by December 31st of each year." Audit scope includes: "Provide the name of application(s) used for redistributing NYSE Proprietary Products and the specific **entitlement control software(s)** utilized"; "**Verify that the users associated to a corresponding Subscriber organization are employees of that organization**". | **4** | **No.** Requires a named CCO and entitlement-control software the configuration does not have. |
| **AD-13** | **OPRA inspection rights** (Vendor Agreement ¶11, ¶14(g)) | "an authorized representative of OPRA shall be permitted to **inspect Vendor's equipment and facilities**"; "Vendor shall make **all of its records** … available for inspection by duly authorized representatives of OPRA upon reasonable notice during ordinary business hours." | **4** | **No.** |
| **AD-14** | **OPRA "Internet redistribution is Vendor status"** (Hosted Solutions Policy ¶2) | "a person that redistributes OPRA Data 'externally' … is a '**Vendor**' … and is required to execute a Vendor Agreement with OPRA and pay a Redistribution Fee. **This is true regardless of the method used to redistribute OPRA Data, and extends to the redistribution of OPRA Data by means of the Internet.**" | **4** | **Only by not showing options data.** If no options quotes are shown, OPRA is not engaged. |
| **AD-15** | **CTA click-on indemnity** (Exhibit C ¶1(c)) | "Customer shall defend and indemnify the Authorizing SROs … from and against any suit … that arises out of or relates to **the unenforceability of a Click-On Agreement due to the manner in which the subscriber manifests its assent**". | **3** | **Interacts with Track 3.** The configuration's assent mechanism is a runtime-owned panel embedded in a third party's UI. That is exactly the "manner of manifesting assent" NYSE must pre-approve and for which the Distributor indemnifies. |
| **AD-16** | **Tiingo investigation and termination** (TOS §6, §14.1, §14.2) | "Company reserves the right to investigate such violations, and Company may, **at its sole discretion, immediately terminate your license to use Company Properties** … without prior notice to you." §14.2 remedies include discontinuing the subscription and "Pursue any other action which Company deems to be appropriate." | **3** | **No.** Note Tiingo publishes **no contractual audit right** — its enforcement lever is unilateral termination, which for a hosted engine is an availability risk rather than a damages risk. |
| **AD-17** | **SEC Rel. No. 34-67857 (Sept. 14, 2012)**, *In the Matter of New York Stock Exchange LLC and NYSE Euronext*, Admin. Proc. File No. 3-15023 — https://www.sec.gov/litigation/admin/2012/34-67857.pdf | "a Commission rule—**Rule 603(a) of Regulation NMS**—requires that exchanges distribute market data on terms that are 'fair and reasonable' and 'not unreasonably discriminatory.' This rule prohibits an exchange from releasing data relating to quotes and trades to its customers through proprietary feeds before it sends its quotes and trade reports for inclusion in the consolidated feeds." Instituted under **Exchange Act §§19(h)(1) and 21C**; settled without admission. | **2** for this configuration | **Yes — it does not reach a licensee.** This is the leading SEC market-data enforcement action and it runs **against an exchange**, for a Reg NMS timing violation, not against a redistributor for licence breach. It is authority that the Commission polices market-data *distribution* under Rule 603(a); it is not authority that the Commission enforces exchange licence terms against downstream users. |
| **AD-18** | ***Bloomberg Finance L.P. v. UBS AG***, 358 F. Supp. 3d 261 (S.D.N.Y. Dec. 19, 2018) (Caproni, J.), No. 18-CV-6334 — CourtListener record https://www.courtlistener.com/opinion/7334081/bloomberg-fin-lp-v-ubs-ag/ | Opening line, verbatim from the record: "Plaintiff **Bloomberg Finance L.P. brought this action to recover damages for, and to obtain injunctive relief to prevent, the alleged unauthorized use and dissemination of its proprietary financial data by Defendant UBS AG in violation of various written agreements between the parties.**" | **3** | **Instructive, not distinguishable.** The one retrievable US case squarely about unauthorised redistribution of licensed market data is a **vendor suing its own subscribing customer in contract**, not an exchange suing a downstream party and not a regulator. That shape matches the realistic risk here: the vendor, not the exchange, is the likely plaintiff. ◇ The full opinion text could not be retrieved (see Negative findings); the quoted line is from the CourtListener opinion record. |
| **AD-19** | ***Lanier v. BATS Exchange, Inc.***, 105 F. Supp. 3d 353 (S.D.N.Y. 2015) | Subscriber contract claims against exchanges concerning the delivery of market data under subscriber agreements. | **2** | ◇ Retrieved as a docket/citation record only; the holding was not read. Included as a lead, not as support. |

**On enforcement generally — a finding in itself.** Targeted searching of the published corpus produced **no SEC administrative proceeding, no FINRA disciplinary action, and no reported civil decision in which an exchange or SIP sued or charged a software vendor, hosted product operator or downstream redistributor for unlicensed redistribution of market data.** The one on-point civil action found is vendor-versus-customer (AD-18). The practical enforcement mechanism visible in the primary sources is **not litigation — it is the contractual audit**: Nasdaq GDA §7 with a conclusive "Final Audit" and a 10%-understatement cost-shifting trigger; NYSE's three-year records, CPA audit on demand, annual indirect-bill audit signed by a CCO, and retroactive charges plus a 10% administrative fee reaching "a person in the chain of dissemination"; CTA/NYSE retroactive Professional-rate billing for mis-qualified Non-Professionals; OPRA's on-premises inspection right. That is the register's most operationally important conclusion.

---

## Negative findings

1. **Tiingo publishes no audit right.** The TOS contains no clause permitting Tiingo to examine the licensee's systems or records. Its remedies (§6, §14) are investigation, disclosure, and unilateral termination. Searched: full TOS text for "audit", "inspect", "examine", "books and records" — no hit on an audit right.
2. **Tiingo publishes no separate "subscription agreement" or standalone redistribution-licence page.** The commission asked for "subscription agreement, terms of service, and any separate redistribution or licensing page". Only the Terms of Use exists as a legal instrument; redistribution terms live in TOS §7.3 and in the documentation (§1.1.6, Appendix 5.1), and the redistribution licence itself is bespoke, obtained by emailing sales@tiingo.com. There is **no published redistribution licence text**. Tried: `/about/terms` (404), `/about/apis` (404), `sitemap_index.xml` (no legal pages listed), robots.txt sitemaps, Wayback CDX for `tiingo.com/*(terms|legal|privacy|tos)*` — which surfaced `/tos/` and `/privacy/` only. The knowledge-base category `/kb/article-categories/copyright-and-legal/` returned HTTP 522.
3. **Tiingo's site is an Angular SPA; the pricing and documentation pages return a 19,978-byte shell.** All quoted documentation and pricing text was extracted from the published JavaScript bundles on `apimedia.tiingo.com` (`main-es2015.68ab4720c9a404019a3f.js`, `src_app_api_documentation_documentation_module_ts-es2015.4f444767383196b24003.js`, `src_app_api_products_products_module_ts-es2015.8fad9da96d96d380e24e.js`), retrieved 5 Sep 2026. This is first-party published text but is not a dated legal instrument; treat the documentation quotes as undated policy, not as versioned terms.
4. **NYSE publishes no derived-data policy.** `https://www.nyse.com/publicdocs/nyse/data/Derived_Data_Policy.pdf` → 404. The published policy index at nyse.com/market-data/policies lists eighteen policies; none is a derived-data policy. NYSE's derived-data position exists only as the ¶6(a) prohibition and the ¶6(i)/(m) "Limited Extracts" exception in the PDP Vendor Agreement.
5. **CTA/CQ publishes no derived-data definition.** Confirmed by full-text search of the CTCQ Vendor Agreement (Rev. 04/24) and by enumerating every PDF on ctaplan.com/contracts and /policy.
6. **OPRA publishes no derived-data definition or policy.** "derive"/"derived" does not occur in the OPRA Vendor Agreement; no such document appears in the OPRA document library (36 PDFs enumerated at opraplan.com/document-library).
7. **Interactive Brokers' operative market-data terms on third-party display could not be retrieved.** IBKR's public "Market Data Agreements" page publishes exactly one agreement (GFIS Subscriber Agreement, May 1, 2026) and states the forms shown are samples of documents "presented in our Account Registration System". Tried and failed: `interactivebrokers.com/en/trading/market-data.php` (404); `/en/general/legalDocs.php` (404); the Forms and Disclosures pages (JS-gated, no PDF hrefs in HTML); `ibkrguides.com/kb/guidelines-on-market-data-subscriber-classifications.htm` (returns a 5,798-byte JS shell); the TWS API documentation (`/docs/tws-api/doc/introduction` and `/third-party-api-platforms` — 867 KB of navigation, no licence terms); `/campus/ibkr-api-page/cpapi-v1/` (403); Wayback CDX for interactivebrokers.com market-data URLs (504 Gateway Timeout). **What was retrievable** is the pricing page's Professional/Non-Professional restatement and the product notes "This data is intended for **display use only**" (Nasdaq TotalView) and "Service not eligible for use in **alternative display formats**". The inference that IBKR passes the exchange subscriber agreements through to the customer is **not verified for IBKR**; it is verified for **Alpaca**, which names "the NASDAQ OMX Global Subscriber Agreement, or AGREEMENT FOR MARKET DATA DISPLAY SERVICES". ◇
8. **Schwab's developer terms of use could not be retrieved** — `developer.schwab.com/user-guides/get-started/terms-of-use` returns a 55 KB JS shell with no content. **Tradier's and tastytrade's** public pages likewise carry no retrievable market-data redistribution clause. Alpaca was the only retail broker whose market-data terms were obtainable as a static document.
9. **The current Nasdaq "Global Data Policies" master document is not at its historical URL.** `nasdaqtrader.com/content/AdministrationSupport/AgreementsData/datapolicies.pdf` returns an HTML 404 page with a 200-family body; `nasdaq.com/solutions/data-policies` → 404; `nasdaq.com/docs/Nasdaq-Global-Data-Agreement.pdf` returns 28 KB of HTML, not a PDF; `nasdaqtrader.com/Trader.aspx?id=DPPolicy`, `?id=GDP_Ops`, `?id=AgreementsData` all 404 or serve a "Page Not Available" shell; `listingcenter.nasdaq.com/rulebook/...` returns Akamai 403. The operative Nasdaq policies document was located only via a footnote URL inside SEC Rel. 34-95375 → `nasdaqtrader.com/content/AdministrationSupport/Policy/USEquitiesandOptionsDataPolicies.pdf`, which is live. Method note for any successor: **the SEC filing footnotes are a more reliable index to exchange policy PDFs than the exchange's own navigation.**
10. **No enforcement precedent against a downstream redistributor was found.** See the note under the Adverse register. Searched: Federal Register SEC corpus for `"Non-Display Usage"` (143 documents, all fee filings, none enforcement); CourtListener opinions for `"market data" AND "unauthorized redistribution"` (1 hit — AD-18), `"Consolidated Tape Association" AND license` (0), `"Nasdaq" AND "Global Data Agreement"` (0), `"non-display" AND "market data" AND fees` (0), `"NYSE" AND "market data" AND "license agreement" AND breach` (0). **The absence is the finding.**
11. **Full text of *Bloomberg Finance L.P. v. UBS AG* was not obtained.** CourtListener's opinion-detail API requires authentication (401); its HTML page returned HTTP 202 with an empty body; Justia returned 403. The quoted sentence is from the CourtListener search-index opinion record. ◇ The licence terms at issue and the disposition were not read.
12. **UTP Plan subscriber-agreement Professional/Non-Professional text was downloaded but not quoted here** (`utpplan.com/DOC/subagreement.pdf`, "Subscriber Agreement – End Users 2019-01") because the Nasdaq, NYSE/CTA and OPRA formulations already give the three required side-by-side comparisons.
13. **WebSearch was unavailable for this commission** — the session's search budget (200/200) was exhausted before Track 8 began. Every source above was located by direct HTTP retrieval, sitemap and robots.txt enumeration, Internet Archive CDX enumeration, the Federal Register API, and the CourtListener search API. Some documents that a keyword search would have surfaced immediately were therefore reached indirectly or not at all; items 7, 8 and 9 are the known casualties.

---

## Search log

| # | Query / path | Source | Date | Access note |
|---|---|---|---|---|
| 1 | `tiingo.com/about/terms`, `/about/pricing`, `/documentation/general/overview`, `/about/apis` | tiingo.com | 5 Sep 2026 | All return the identical 19,978-byte Angular shell or 404. SPA. |
| 2 | `robots.txt` → `sitemap_index.xml` | tiingo.com | 5 Sep 2026 | Sitemap lists no legal pages. |
| 3 | Wayback CDX `url=tiingo.com*&filter=original:.*(terms\|legal\|privacy\|tos).*` | web.archive.org | 5 Sep 2026 | Surfaced `/tos/` and `/privacy/` — both live. **The route that found the TOS.** |
| 4 | `tiingo.com/tos/` (670 KB), `/privacy/` | tiingo.com | 5 Sep 2026 | Server-rendered. TOS v1, eff. 16 Jan 2022, last updated **5 Aug 2026**. |
| 5 | JS bundle extraction of Angular Ivy `_uU(n,"text")` nodes from three chunks on apimedia.tiingo.com | tiingo.com | 5 Sep 2026 | Yielded documentation §1.1.6, Appendix 5.1, and all pricing tables. |
| 6 | `nasdaqtrader.com/Trader.aspx?id=MDPolicyDefinitions` / `DPPolicy` / `GDP_Ops` / `AgreementsData` | nasdaqtrader.com | 5 Sep 2026 | 302→404, or 42,894-byte "Page Not Available" shell. Trader.aspx largely decommissioned; `/content/*.pdf` paths still live. |
| 7 | Wayback CDX `url=nasdaqtrader.com/content/AdministrationSupport*` (400 rows) | web.archive.org | 5 Sep 2026 | Enumerated the PDF filename space; found `globaldataagreement4.5.pdf`, `DerivedDataDeclarationForm.pdf`, `Data_AI_Policy.pdf`, `declaration.pdf` — **all still live at the current host.** |
| 8 | Federal Register API `conditions[term]="Non-Display Usage"`, agency=SEC, newest first, 4 pages | federalregister.gov | 5 Sep 2026 | 143 SEC documents. Filtered client-side for Nasdaq and for 2026. |
| 9 | FR full text 2022-16482 (Rel. 34-95375, 87 FR 47234) | federalregister.gov | 5 Sep 2026 | **Source of the verbatim Nasdaq Equity 7 §123(a)(2) definitions and of the live URL for the Nasdaq policies PDF.** |
| 10 | FR full text 2026-08189 (Rel. 34-105304, 91 FR 22896) | federalregister.gov | 5 Sep 2026 | Cboe amended Non-Display Usage definition, eff. 1 Apr 2026. Six parallel filings same day. |
| 11 | `nyse.com/market-data/policies` → 16 policy PDFs | nyse.com | 5 Sep 2026 | Static hrefs; direct PDF paths all work. |
| 12 | `nyse.com/publicdocs/nyse/data/{Non-Display_Use_Policy, Non_Professional_Subscribers_PDP_Policy, NYSE_Market_Data_Complete_Policy_Package, NYSE_Vendor_Agreement_PDP}.pdf` | nyse.com | 5 Sep 2026 | `pdftotext -layout`; text sizes 5.7 KB / 7.8 KB / 33.5 KB / 45 KB against PDFs of 532 KB / 235 KB / 892 KB / 226 KB — text-layer present, not scanned. |
| 13 | `nyse.com/publicdocs/nyse/data/Derived_Data_Policy.pdf` | nyse.com | 5 Sep 2026 | **404 — negative finding 4.** |
| 14 | `ctaplan.com/sitemap.xml` → `/contracts`, `/policy`, `/guidelines` | ctaplan.com | 5 Sep 2026 | ICE-hosted React site; sitemap was the only route to the document pages. |
| 15 | `ctaplan.com/publicdocs/ctaplan/{NYSE_Vendor_Agreement_CTCQ, Professional_Subscriber_Agreement, Policy_CTA_Non_Display_with_FAQ, Policy_Non-Professional_Subscribers_CTA, Exhibit_C_Subscriber_Click-On_Agreement}.pdf` | ctaplan.com | 5 Sep 2026 | All extracted cleanly. |
| 16 | `opradata.com` DNS failure → `opraplan.com/document-library` (36 PDFs enumerated) | opraplan.com | 5 Sep 2026 | **Access note: the domain in the commission's access notes (`opradata.com`) does not resolve; the live OPRA site is `opraplan.com`, documents on `cdn.opraplan.com`.** |
| 17 | `cdn.opraplan.com/documents/{OPRA_Vendor_Agreement, OPRA_Electronic_Subscriber_Agreement, OPRA_Non_Display_Declaration, OPRA_Definition_Nonprofessional, OPRA_Policy_With_Respect_To_Hosted_Solutions}.pdf` | opraplan.com | 5 Sep 2026 | All extracted. |
| 18 | `utpplan.com/` → frame part `PageParts/DataAdmin.html` → `/DOC/*.pdf` | utpplan.com | 5 Sep 2026 | **Access note: utpplan.com serves a 7.7 KB ASP.NET shell that hydrates `ndaq-include-html` fragments; the document links are only in `PageParts/DataAdmin.html`.** |
| 19 | `utpplan.com/DOC/{Datapolicies, subagreement, NonDisplayDeclaration}.pdf` | utpplan.com | 5 Sep 2026 | Data Policies 951 KB PDF → 153 KB text; published September 2023. |
| 20 | `interactivebrokers.com/en/index.php?f=14193`, `/en/accounts/forms-and-disclosures-market-data.php`, `/en/index.php?f=5041`, `/docs/tws-api/doc/*`, `ibkrguides.com/kb/...` | interactivebrokers.com | 5 Sep 2026 | See negative finding 7. |
| 21 | `alpaca.markets/disclosures` → `s3.amazonaws.com/files.alpaca.markets/disclosures/library/TermsAndConditions.pdf` | alpaca.markets | 5 Sep 2026 | Retrieved; direct `files.alpaca.markets` paths return 403, the S3 mirror does not. |
| 22 | `developer.schwab.com/user-guides/get-started/terms-of-use`; `tradier.com/legal`; `developer.tastytrade.com` | various | 5 Sep 2026 | JS shells; no retrievable terms. |
| 23 | `sec.gov/enforcement-litigation/administrative-proceedings?populate=market+data`; `sec.gov/litigation/admin/2012/34-67857.pdf` | sec.gov | 5 Sep 2026 | **Access note confirmed: sec.gov served correctly with a declared UA carrying a contact address; the 81 KB listing and the 223 KB PDF are genuine, not block pages (size-checked).** The `populate` filter returned no market-data-titled proceedings. |
| 24 | CourtListener search API v4, five queries (see negative finding 10) | courtlistener.com | 5 Sep 2026 | Search endpoint is anonymous; **opinion-detail endpoints v3 and v4 both return 401**, and the HTML opinion page returned 202 with an empty body. |

---

### Three things to put to counsel first, in order

1. **BYO-token or redistribution licence — decide before anything else.** Tiingo's Developer Program is a clean, published, no-fee path *only* if every member supplies their own token and the product never holds or serves the data. Every other question in this track — display fees, subscriber agreements, Professional/Non-Professional qualification, audit exposure — changes shape depending on this one architectural choice, and the current description ("the configuration uses a commercial data API") does not say which it is.
2. **Whether real-time exchange data is shown at all.** If the engine displays only delayed or end-of-day prices, most of the exchange register above falls away (delay-message requirements aside). If it displays real-time consolidated or proprietary data, the engine builder becomes a Distributor/Vendor with per-member subscriber agreements, annual non-display declarations, Hosted Display Solution pre-approval, and the full audit regime.
3. **The journal.** AD-7 and AD-8 together say the append-only provenance journal, as described, stores exactly the kind of complete sequence that every derived-data test excludes, and stores it in a compliance-retention system that Tiingo §1.6(b) requires to be purged on lapse. Ask counsel whether the journal can be re-specified to record derived values and member-authored terms only, with no vendor-sourced price fields.


---

<br>

# S9 · ADDENDUM TRACK 9 — GPL-3.0 runtime and a proprietary engine connected through the API

I have all primary sources. Writing the report.

## S9 — Track 9: GPL-3.0 and the engine boundary

**Scope note.** All conclusions below are statements of what the licence text says, what the licence steward says, and what courts have held. Nothing here concludes law. Where the authorities are silent, that is stated as silence.

---

### S9 authority register

---

#### A1 · GNU General Public License, Version 3, §0 ("Definitions")
**Citation/URL:** GNU GPL v3, 29 June 2007, §0 · `https://www.gnu.org/licenses/gpl-3.0.txt` (fetched 5 Sep 2026, HTTP 200, 35,149 bytes)
**Type:** Licence text · **Date:** 29 June 2007 · **Status:** Current. gnu.org's licence-overview page (`/licenses/licenses.html`, footer `$Date: 2022/04/12$`) still names GPLv3 as the FSF's normal recommendation; no GPLv4 exists.

**Verbatim (§0, ¶¶ on "modify"/"covered work"/"propagate"/"convey"):**
> To "modify" a work means to copy from or adapt all or part of the work in a fashion requiring copyright permission, other than the making of an exact copy. The resulting work is called a "modified version" of the earlier work or a work "based on" the earlier work.
>
> A "covered work" means either the unmodified Program or a work based on the Program.
>
> To "propagate" a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.
>
> To "convey" a work means any kind of propagation that enables other parties to make or receive copies. **Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.**

**What it establishes.** Three load-bearing points. (i) GPL-3.0 does **not** define "based on" independently — it defines it *by reference to* "a fashion requiring copyright permission." The copyleft boundary is therefore whatever US copyright law's derivative-work boundary is (A24–A27), not a licence-specific test. (ii) The licence's conditions attach to *conveying*, and conveying requires transfer of a copy. (iii) The final sentence expressly excludes network interaction from conveying.
**Supports / undercuts:** Strongly **supports** separateness where no copy moves and no copyright permission is needed.
**Relevance: 5**

---

#### A2 · GPL-3.0 §2 ("Basic Permissions")
**Verbatim:**
> This License explicitly affirms your unlimited permission to run the unmodified Program. **The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work.** This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.
>
> You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force. …

**What it establishes.** Private making, running and modification carry **no conditions at all**. The member who installs the runtime locally and points it at an engine incurs no GPL obligation unless he conveys. Also: outputs are not automatically covered — content decides.
**Supports / undercuts:** **Supports.** **Relevance: 5**

---

#### A3 · GPL-3.0 §5 ("Conveying Modified Source Versions") — including the aggregate proviso
**Verbatim (chapeau, condition (c), and the aggregate proviso):**
> You may convey a work based on the Program, or the modifications to produce it from the Program, in the form of source code under the terms of section 4, provided that you also meet all of these conditions:
> …
>     c) You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. …
>
> A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, and which are not combined with it such as to form a larger program, in or on a volume of a storage or distribution medium, is called an "aggregate" if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation's users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate.

**What it establishes.** The "whole work as a whole" condition in §5(c) is triggered only by *conveying a work based on the Program*. The aggregate proviso supplies the licence's own three-part separateness test in its only operative form: works must be (1) **separate and independent**, (2) **not by their nature extensions of the covered work**, and (3) **not combined with it such as to form a larger program**. "By their nature extensions" is the phrase that does the most work for an engine designed to speak only to one runtime.
**Supports / undercuts:** Cuts both ways — it is the strongest textual support for separateness *and* the strongest textual hook against an engine that cannot function except as an appendage of the runtime.
**Relevance: 5**

---

#### A4 · GPL-3.0 §7 ("Additional Terms") — additional permissions
**Verbatim (opening):**
> "Additional permissions" are terms that supplement the terms of this License by making exceptions from one or more of its conditions. Additional permissions that are applicable to the entire Program shall be treated as though they were included in this License, to the extent that they are valid under applicable law. …

**What it establishes.** The runtime's copyright holders may attach an exception that removes the question altogether for a named interface. This is the only route that does not depend on winning the boundary analysis. It requires *all* copyright holders in the runtime (including inbound contributors) to be under the exception.
**Supports:** yes. **Relevance: 4**

---

#### A5 · GPL-3.0 §10 ("Automatic Licensing of Downstream Recipients") — final paragraph
**Verbatim:**
> You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License. For example, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License, and you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.

**What it establishes.** This — not §11 — is where GPL-3.0's **patent-retaliation** prohibition lives. Precision matters for (d).
**Relevance: 4**

---

#### A6 · GPL-3.0 §11 ("Patents") — full text
Reproduced verbatim in the §11 section below (see **"GPL-3.0 §11 — what the contributor patent grant does, generically"**). **Relevance: 5**

---

#### A7 · GPL-3.0 §12 ("No Surrender of Others' Freedom")
**Verbatim:**
> If conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot convey a covered work so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not convey it at all. …

**What it establishes.** A conflicting obligation does not soften the licence — it removes the right to convey. **Relevance: 3**

---

#### A8 · GPL-3.0 §13 ("Use with the GNU Affero General Public License") — **the absence of a network clause**
**Verbatim, in full:**
> **13. Use with the GNU Affero General Public License.**
>
> Notwithstanding any other provision of this License, you have permission to link or combine any covered work with a work licensed under version 3 of the GNU Affero General Public License into a single combined work, and to convey the resulting work. The terms of this License will continue to apply to the part which is the covered work, but the special requirements of the GNU Affero General Public License, section 13, concerning interaction through a network will apply to the combination as such.

**What it establishes — stated precisely.** GPL-3.0 §13 is a **compatibility** clause and nothing else. It grants permission to combine with AGPL-3.0 code and warns that, if you do, the *AGPL's* network clause attaches to the combination. **GPL-3.0 contains no network-interaction source-disclosure obligation of its own, at §13 or anywhere else.** The only place in GPL-3.0 where "interaction through a network" appears in an obligation-creating sense is by cross-reference *to another licence*. The corollary, read with §0's "Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying": **a party who runs a modified or combined GPL-3.0 work on its own servers, and lets users interact with it over a network without transferring a copy, has no GPL-3.0 source-disclosure obligation.** This is the single most load-bearing fact in the whole track, because the proprietary engine in the configuration is *hosted by its builder*, not shipped.
**Supports:** strongly. **Relevance: 5**

---

#### A9 · GNU Affero General Public License, Version 3, §13 — the clause GPL-3.0 does not have
**Citation/URL:** AGPL v3, 19 November 2007, §13 · `https://www.gnu.org/licenses/agpl-3.0.txt` (fetched 5 Sep 2026, HTTP 200)
**Verbatim (first paragraph):**
> **13. Remote Network Interaction; Use with the GNU General Public License.**
>
> Notwithstanding any other provision of this License, if you modify the Program, your modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge, through some standard or customary means of facilitating copying of software. …

**The contrast, stated exactly.** AGPL-3.0 §13 imposes an affirmative source-offer duty on *remote network interaction* with a modified version. GPL-3.0 §13, quoted at A8, imposes no such duty and merely permits combination with AGPL code. The two clauses share a number and nothing else. **A runtime licensed GPL-3.0-only therefore imposes no obligation on a hosted party by virtue of hosting.** Had the runtime been AGPL-3.0, the analysis for a hosted engine would be materially different.
**Relevance: 5**

---

#### A10 · FSF GPL FAQ — plug-ins and the single-combined-program test
**Citation/URL:** *Frequently Asked Questions about the GNU Licenses*, Free Software Foundation, `https://www.gnu.org/licenses/gpl-faq.html`, answers `#GPLPlugins`, `#GPLAndPlugins`, `#GPLPluginsInNF`, `#NFUseGPLPlugins`
**Type:** **Steward commentary — the licence author's published interpretation. It is not law, it is not binding on any court, and no court has adopted it.** (See Negative findings.)
**Date/Status:** Page footer `Updated: $Date: 2026/01/13 15:26:29 $`; fetched 5 Sep 2026, HTTP 200.

**Verbatim (`#GPLPlugins`, in full):**
> **When is a program and its plug-ins considered a single combined program?**
>
> It depends on how the main program invokes its plug-ins. If the main program uses fork and exec to invoke plug-ins, and they establish intimate communication by sharing complex data structures, or shipping complex data structures back and forth, that can make them one single combined program. **A main program that uses simple fork and exec to invoke plug-ins and does not establish intimate communication between them results in the plug-ins being a separate program.**
>
> If the main program dynamically links plug-ins, and they make function calls to each other and share data structures, we believe they form a single combined program, which must be treated as an extension of both the main program and the plug-ins. If the main program dynamically links plug-ins, but the communication between them is limited to invoking the 'main' function of the plug-in with some options and waiting for it to return, that is a borderline case.
>
> **Using shared memory to communicate with complex data structures is pretty much equivalent to dynamic linking.**

**Verbatim (`#GPLAndPlugins`):**
> If the main program and the plugins are a single combined program then this means you must license the plug-in under the GPL or a GPL-compatible free software license and distribute it with source code in a GPL-compliant way. **A main program that is separate from its plug-ins makes no requirements for the plug-ins.**

**Verbatim (`#GPLPluginsInNF`, "Can I apply the GPL when writing a plug-in for a nonfree program?"):**
> Please see this question for determining when plug-ins and a main program are considered a single combined program and when they are considered separate programs. If they form a single combined program this means that combination of the GPL-covered plug-in with the nonfree main program would violate the GPL. However, you can resolve that legal problem by adding an exception to your plug-in's license, giving permission to link it with the nonfree main program.

**Verbatim (`#NFUseGPLPlugins`, "Can I release a nonfree program that's designed to load a GPL-covered plug-in?"):**
> If they form a single combined program then the main program must be released under the GPL or a GPL-compatible free software license, and the terms of the GPL must be followed when the main program is distributed for use with these plug-ins. **However, if they are separate works then the license of the plug-in makes no requirements about the main program.**

**What it establishes.** The steward's own test is two-pronged — *mechanism* and *intimacy of semantics* — and it produces **separateness** for fork/exec-style invocation without intimate data exchange. It is also the steward's position that separateness is fully dispositive in *both* directions: a separate main program imposes nothing on the plug-in, and a separate plug-in imposes nothing on the main program.
**Supports:** strongly, on the stated facts. **Undercuts:** only if the signal exchange were characterised as "intimate."
**Relevance: 5**

---

#### A11 · FSF GPL FAQ — `#MereAggregation`: "Where's the line between two separate programs, and one program with two parts?"
**Verbatim, in full:**
> An "aggregate" consists of a number of separate programs, distributed together on the same CD-ROM or other media. The GPL permits you to create and distribute an aggregate, even when the licenses of the other software are nonfree or GPL-incompatible. The only condition is that you cannot release the aggregate under a license that prohibits users from exercising rights that each program's individual license would grant them.
>
> **Where's the line between two separate programs, and one program with two parts? This is a legal question, which ultimately judges will decide.** We believe that a proper criterion depends both on the **mechanism of communication** (exec, pipes, rpc, function calls within a shared address space, etc.) and the **semantics of the communication** (what kinds of information are interchanged).
>
> If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.
>
> **By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs.** But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program.

**What it establishes.** This is the single most important piece of steward commentary for Track 9, and note the FSF's own disclaimer in it: *"This is a legal question, which ultimately judges will decide."* The steward does not claim its criterion is law. Sockets → normally separate. Shared address space → almost surely one program. Intimacy of semantics can override the mechanism.
**Relevance: 5**

---

#### A12 · FSF GPL FAQ — `#GPLStaticVsDynamic` and `#IfLibraryIsGPL`
**Verbatim (`#GPLStaticVsDynamic`, in full):**
> **Does the GPL have different requirements for statically vs dynamically linked modules with a covered work?**
>
> No. Linking a GPL covered work statically or dynamically with other modules is making a combined work based on the GPL covered work. Thus, the terms and conditions of the GNU General Public License cover the whole combination.

**Verbatim (`#IfLibraryIsGPL`, in full):**
> **If a library is released under the GPL (not the LGPL), does that mean that any software which uses it has to be under the GPL or a GPL-compatible license?**
>
> Yes, because the program actually links to the library. As such, the terms of the GPL apply to the entire combination. The software modules that link with the library may be under various GPL compatible licenses, but the work as a whole must be licensed under the GPL.

**What it establishes.** The steward's linking position is absolute and admits no static/dynamic distinction. This is also the FSF position most often criticised and **never tested in a US court**. It is the reason requirement R2 below is non-negotiable in engineering terms: linking is the one act on which the FSF has left no room at all.
**Supports / undercuts:** **Undercuts** any design that links; **irrelevant** to a design that does not.
**Relevance: 5**

---

#### A13 · FSF GPL FAQ — `#GPLWrapper` (adverse to shim strategies)
**Verbatim, in full:**
> **I'd like to incorporate GPL-covered software in my proprietary system. Can I do this by putting a "wrapper" module, under a GPL-compatible lax permissive license (such as the X11 license) in between the GPL-covered part and the proprietary part?**
>
> No. The X11 license is compatible with the GPL, so you can add a module to the GPL-covered program and put it under the X11 license. But if you were to incorporate them both in a larger program, that whole would include the GPL-covered part, so it would have to be licensed as a whole under the GNU GPL.
>
> **The fact that proprietary module A communicates with GPL-covered module C only through X11-licensed module B is legally irrelevant; what matters is the fact that module C is included in the whole.**

**What it establishes.** Interposing a permissive shim does not launder a combination that is otherwise one program. Separateness must be structural, not nominal.
**Supports / undercuts:** **Undercuts** any "adapter layer" theory offered as a substitute for genuine process separation.
**Relevance: 4**

---

#### A14 · FSF GPL FAQ — data, inputs and outputs (`#IfInterpreterIsGPL`, `#GPLOutput`, `#WhatCaseIsOutputGPL`)
**Verbatim (`#IfInterpreterIsGPL`, first paragraph):**
> When the interpreter just interprets a language, the answer is no. **The interpreted program, to the interpreter, is just data; a free software license like the GPL, based on copyright law, cannot limit what data you use the interpreter on.** You can run it on any data (interpreted program), any way you like, and there are no requirements about licensing that data to anyone.

**Verbatim (`#GPLOutput`, first paragraph):**
> In general this is legally impossible; **copyright law does not give you any say in the use of the output people make from their data using your program.** If the user uses your program to enter or convert her own data, the copyright on the output belongs to her, not you. More generally, when a program translates its input into some other form, the copyright status of the output inherits that of the input it was generated from.

**Verbatim (`#WhatCaseIsOutputGPL`, first paragraph):**
> The output of a program is not, in general, covered by the copyright on the code of the program. So the license of the code of the program does not apply to the output, whether you pipe it into a file, make a screenshot, screencast, or video.

**What it establishes.** The steward's position on the **data axis**, which is the whole of question (c): a GPL program's licence does not reach data fed into it, and does not reach outputs whose content is not itself a covered work. Note the FSF's own qualification in `#IfInterpreterIsGPL` — the answer flips where the interpreter is extended with *bindings* that effectively link the interpreted program to GPL facilities. Bindings are linking; a config file is not.
**Relevance: 5**

---

#### A15 · FSF GPL FAQ — `#UnreleasedMods` and `#InternalDistribution` (hosting is not conveying)
**Verbatim (`#UnreleasedMods`, first paragraph):**
> **A company is running a modified version of a GPLed program on a web site. Does the GPL say they must release their modified sources?**
>
> The GPL permits anyone to make a modified version and use it without ever distributing it to others. What this company is doing is a special case of that. Therefore, the company does not have to release the modified sources. **The situation is different when the modified program is licensed under the terms of the GNU Affero GPL.**

**Verbatim (`#InternalDistribution`, first paragraph):**
> No, in that case the organization is just making the copies for itself. As a consequence, a company or other organization can develop a modified version and install that version through its own facilities, without giving the staff permission to release that modified version to outsiders.

**What it establishes.** The steward confirms the A8/A9 contrast in operational terms. A hosted engine that never ships the runtime to anyone has no disclosure duty under GPL-3.0 **even on the assumption that its combination with the runtime would be a single work**. This is the most robust protection in the whole configuration, because it does not depend on winning the boundary question at all.
**Relevance: 5**

---

#### A16 · FSF GPL FAQ — `#LinkingOverControlledInterface` (the §7 exception, drafted)
**Verbatim (operative paragraph of the FSF's suggested notice):**
> As a special exception, the copyright holders of ABC give you permission to combine ABC program with free software programs or libraries that are released under the GNU LGPL and with independent modules that communicate with ABC solely through the ABCDEF interface. You may copy and distribute such a system following the terms of the GNU GPL for ABC and the licenses of the other code concerned, provided that you include the source code of that other code when and as the GNU GPL requires distribution of source code and provided that you do not modify the ABCDEF interface.
>
> Note that people who make modified versions of ABC are not obligated to grant this special exception for their modified versions; it is their choice whether to do so. …

**What it establishes.** The steward publishes a template for exactly the situation in the configuration: a **named, published interface** over which independent modules may communicate without triggering combination. Note the last paragraph's limit — downstream modifiers need not carry the exception forward.
**Relevance: 4**

---

#### A17 · *Google LLC v. Oracle America, Inc.*, 593 U.S. 1 (2021)
**Citation/URL:** No. 18-956, decided 5 April 2021 · slip op. at `https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf` (fetched 5 Sep 2026)
**Type:** Case (US Supreme Court) · **Status:** Good law; controlling.

**Verbatim (slip op., at 1):**
> The lower courts have considered (1) whether Java SE's owner could copyright the portion that Google copied, and (2) if so, whether Google's copying nonetheless constituted a "fair use" of that material, thereby freeing Google from copyright liability. The Federal Circuit held in Oracle's favor (i.e., that the portion is copyrightable and Google's copying did not constitute a "fair use"). **In reviewing that decision, we assume, for argument's sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use.**

**Verbatim (slip op., at 15):**
> Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties' dispute. **We shall assume, but purely for argument's sake, that the entire Sun Java API falls within the definition of that which can be copyrighted.** We shall ask instead whether Google's use of part of that API was a "fair use."

**Verbatim (slip op., at 23–24, on the nature of the work):**
> These features mean that, as part of a user interface, the declaring code differs to some degree from the mine run of computer programs. Like other computer programs, it is functional in nature. But unlike many other programs, its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression …

**Verbatim (slip op., at 35, holding):**
> We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google's copying of the Sun Java API was a fair use of that material as a matter of law.

**What it did and did not decide — stated carefully.**
- **It did not decide** that APIs are uncopyrightable. It expressly **assumed copyrightability** twice, "purely for argument's sake," and declined to reach the question.
- **It did decide**, as a matter of law, that Google's reimplementation of ~11,500 lines of declaring code was fair use, and that declaring code sits further from the core of copyright than implementing code.
- **It says nothing about GPL derivative scope.** Its relevance here is oblique but real: it is the Supreme Court's only modern statement about the copyright status of interface material, and it leaves the copyrightability of API declarations **open**. Therefore an engine builder cannot safely assume that copying the runtime's published header/declaration files is a copyright-free act — the Court assumed the opposite.

**Supports / undercuts:** **Supports** an engine that *implements* a published contract from its specification. **Undercuts** any assumption that copying the runtime's declarations verbatim is legally costless.
**Relevance: 4**

---

#### A18 · *Jacobsen v. Katzer*, 535 F.3d 1373 (Fed. Cir. 2008)
**Citation/URL:** 535 F.3d 1373 (Fed. Cir., decided 13 Aug. 2008) · official-reporter text at `https://static.case.law/f3d/535/html/1373-01.html`
**Type:** Case · **Status:** Good law; the leading US authority that open-source licence terms can be *conditions* on the copyright grant.

**Verbatim (535 F.3d at 1380):**
> The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license. Generally, a "copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement" and can sue only for breach of contract. … **If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement.**

**Verbatim (535 F.3d at 1381–82):**
> Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. … **Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.**

**Verbatim (535 F.3d at 1382):**
> The clear language of the Artistic License creates conditions to protect the economic rights at issue in the granting of a public license.

**What it establishes.** Breach of an open-source licence *condition* can be copyright infringement, not merely breach of contract — which brings injunctive relief and statutory remedies. The court reached this on the **Artistic License**, not the GPL, and turned on that licence's "provided that" language. GPL-3.0 §5 uses the same construction ("provided that you also meet all of these conditions"), so the reasoning transfers by analogy — **but no court has applied *Jacobsen* to GPL-3.0 §5.**
**Supports / undercuts:** **Undercuts** any view that the downside of getting the boundary wrong is merely contractual damages. This is the authority that makes the engineering requirements matter.
**Relevance: 5**

---

#### A19 · *Artifex Software, Inc. v. Hancom, Inc.*, No. 3:16-cv-06982-JSC (N.D. Cal. 25 Apr. 2017), Dkt. No. 32
**Citation/URL:** Order Re: Defendant's Motion to Dismiss, entered 25 April 2017 (Corley, M.J.) · retrieved from RECAP: `https://storage.courtlistener.com/recap/gov.uscourts.cand.305835/gov.uscourts.cand.305835.32.0.pdf` · docket `https://www.courtlistener.com/docket/4548911/artifex-software-inc-v-hancom-inc/`
**Type:** Case (district court, motion to dismiss) · **Date:** 25 Apr. 2017 · **Status:** Interlocutory order on a Rule 12(b)(6) motion. **Case terminated 17 January 2018** (per CourtListener docket metadata) — i.e., **it settled; there was never a merits ruling.**

**Verbatim (slip op. at 6):**
> Defendant contends that Plaintiff's reliance on the unsigned GNU GPL fails to plausibly demonstrate mutual assent, that is, the existence of a contract. **Not so.** The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GN[U] GP[L]. **These allegations sufficiently plead the existence of a contract.**

**Verbatim (slip op. at 6–7):**
> Plaintiff plausibly alleges that Defendant's use of Ghostscript without obtaining a commercial license or complying with GNU GPL deprived Plaintiff of the licensing fee, or alternatively, the ability to advance and develop Ghostscript through open-source sharing.

**What it establishes — and, importantly, what it does not.** It establishes that a US federal court has held the GNU GPL to be **plausibly an enforceable contract** notwithstanding the absence of a signature, on a motion to dismiss. It is frequently cited for more than it holds. It decided **nothing** about derivative-work scope, nothing about linking, nothing about APIs, and it decided nothing at all on the merits. It is a pleading-stage order in a case that settled.
**Supports / undercuts:** **Undercuts** the "the GPL is unenforceable / no consideration" view. **Neutral** on the boundary question.
**Relevance: 3**

---

#### A20 · *Progress Software Corp. v. MySQL AB*, 195 F. Supp. 2d 328 (D. Mass. 2002) — **the closest thing to a US judicial statement on GPL derivative scope, and it declined to decide**
**Citation/URL:** No. Civ.A. 01-11031-PBS, decided 28 Feb. 2002 (Saris, J.) · official-reporter text at `https://static.case.law/f-supp-2d/195/html/0328-01.html`
**Type:** Case (preliminary injunction) · **Status:** Good law as far as it goes; never developed further.

**Verbatim (195 F. Supp. 2d at 329) — quoted in full because every word of it matters:**
> With respect to the General Public License ("GPL"), MYSQL has not demonstrated a substantial likelihood of success on the merits or irreparable harm. **Affidavits submitted by the parties' experts raise a factual dispute concerning whether the Gemini program is a derivative or an independent and separate work under GPL ¶ 2. After hearing, MySQL seems to have the better argument here, but the matter is one of fair dispute.** Moreover, I am not persuaded based on this record that the release of the Gemini source code in July 2001 didn't cure the breach.

**What it establishes.** In twenty-four years since, **this is still the fullest treatment a US court has given the question whether a program that works with GPL software is a derivative or an independent and separate work.** The court characterised it as a **question of fact** on which duelling experts created a "fair dispute," inclined toward the copyleft side on that record, and resolved nothing. Note also that the court treated the question as arising "under GPL ¶ 2" — i.e. GPLv2's own text — and did not articulate any legal test.
**Supports / undercuts:** **Undercuts** any confident prediction in either direction. It is the authority for the proposition that the answer is contested, fact-bound, and unresolved.
**Relevance: 5** — this is the register's central negative authority.

---

#### A21 · *Software Freedom Conservancy, Inc. v. Vizio, Inc.*, No. 8:21-cv-01943-JLS-KES (C.D. Cal. 13 May 2022), Dkt. No. 30
**Citation/URL:** Civil Minutes — General, Order Remanding Action, entered 13 May 2022 (Staton, J.) · retrieved from RECAP: `https://storage.courtlistener.com/recap/gov.uscourts.cacd.837808/gov.uscourts.cacd.837808.30.0.pdf` (9 pp.) · docket `https://www.courtlistener.com/docket/61578720/`
**Type:** Case (remand order) · **Status:** Federal case **terminated 13 May 2022** on remand to the Superior Court of California, County of Orange. ◇ Reported at 587 F. Supp. 3d 1077 — **this parallel citation is unverified in this run.**

**Verbatim (slip op. at 6):**
> The Court finds Versata's reasoning persuasive, and it finds here, as the court found there, that the enforcement of "an additional contractual promise separate and distinct from any rights provided by the copyright laws" amounts to an "extra element," and therefore, **SFC's claims are not preempted. There is an extra element to SFC's claims because SFC is asserting, as a third-party beneficiary of the GPL Agreements, that it is entitled to receive source code under the terms of those agreements.** There is no right to receive certain works—or source code in particular—under the Copyright Act …

**Verbatim (slip op. at 6 n.1):**
> **The Court here determines only that the claim is not preempted; whether SFC can successfully show it is a third-party beneficiary of the GPL Agreements is a question of state law that is not before this Court.**

**What it establishes.** A US federal court has held that a **recipient** of GPL-licensed software — not the copyright holder — may plead a state-law contract claim to compel source disclosure, and that such a claim is not preempted by the Copyright Act. If that theory succeeds on the merits, the class of potential GPL claimants is far larger than the class of copyright holders. **The court expressly declined to decide whether third-party beneficiary status actually exists.**
**Supports / undercuts:** **Undercuts** any risk model built on "only the copyright holders can sue."
**Relevance: 4** — see Negative findings for the unresolved status of the state-court proceedings.

---

#### A22 · *Versata Software, Inc. v. Ameriprise Financial, Inc.*, 2014 WL 950065 (W.D. Tex. 11 Mar. 2014)
**Type:** Case · ◇ **Not read directly — quoted only as reproduced in A21 at slip op. 5–6.** Treat as second-hand.
**Verbatim, as quoted in A21 (slip op. at 5–6):**
> The court found that the GPL's imposition of an affirmative obligation on any license holder to make the code of any derivative work freely available and open source was "separate and distinct from any copyright obligation," as "[c]opyright law imposes no open source obligations," and the defendant had not sued for infringement of copyright. … the defendant's counterclaim required an extra element in addition to reproduction or distribution—"a failure to disclose the source code of the derivative software."

**What it establishes.** That a GPL open-source obligation is treated as an "extra element" surviving preemption. ◇ **Relevance: 2**

---

#### A23 · *Wallace v. International Business Machines Corp.*, 467 F.3d 1104 (7th Cir. 2006)
**Type:** Case · **Status:** Good law. Holds the GPL does not violate the Sherman Act (no predatory pricing / price-fixing theory against free software). Relevant only to rule out an antitrust attack on the licence itself; **says nothing** about derivative scope. ◇ located via CourtListener full-text search; not quoted here.
**Relevance: 1**

---

#### A24 · 17 U.S.C. §101 — statutory definition of "derivative work"
**Citation/URL:** United States Code, 2023 Edition, Title 17 §101 · `https://www.govinfo.gov/content/pkg/USCODE-2023-title17/html/USCODE-2023-title17-chap1-sec101.htm`
**Verbatim:**
> A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

**What it establishes.** This is the definition GPL-3.0 §0 silently incorporates via "in a fashion requiring copyright permission." The copyleft question is a **copyright** question, and this is the operative text.
**Relevance: 5**

---

#### A25 · 17 U.S.C. §102(b), §103(b), §106(2)
**Citation/URL:** `https://www.govinfo.gov/content/pkg/USCODE-2023-title17/html/USCODE-2023-title17-chap1-sec102.htm` (and `…sec103…`, `…sec106…`)
**Verbatim (§102(b)):**
> In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

**Verbatim (§103(b)):**
> The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. …

**Verbatim (§106(2)):**
> Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: … (2) to prepare derivative works based upon the copyrighted work;

**What it establishes.** §106(2) is the right the GPL leverages. §102(b) is the doctrinal floor: an interface *qua* method of operation is unprotectable to the extent it is a method of operation — though *Google v. Oracle* (A17) pointedly did **not** so hold. §103(b) is relevant to (c): even if a configuration set were copyrightable as a compilation, protection reaches only the compiler's contribution.
**Relevance: 4**

---

#### A26 · *Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.*, 964 F.2d 965 (9th Cir. 1992)
**Citation/URL:** official-reporter text at `https://static.case.law/f2d/964/html/0965-01.html`
**Verbatim (964 F.2d at 967):**
> **A derivative work must incorporate a protected work in some concrete or permanent "form."** … The examples of derivative works provided by the Act all physically incorporate the underlying work or works.

**Verbatim (964 F.2d at 968):**
> The Game Genie merely enhances the audiovisual displays (or underlying data bytes) that originate in Nintendo game cartridges. **The altered displays do not incorporate a portion of a copyrighted work in some concrete or permanent form.** … It cannot be a derivative work.

**What it establishes.** A device that alters the operation of a copyrighted program by supplying **data values** — the Game Genie substituted data bytes — did not create a derivative work, because nothing of the protected work was incorporated in concrete or permanent form. This is the closest US authority to the situation in (c).
**Supports:** strongly, on (c). **Relevance: 5**

---

#### A27 · *Micro Star v. FormGen Inc.*, 154 F.3d 1107 (9th Cir. 1998) — **the adverse counterpart**
**Citation/URL:** official-reporter text at `https://static.case.law/f3d/154/html/1107-01.html`
**Verbatim (154 F.3d at 1110):**
> To narrow the statute to a manageable level, we have developed certain criteria a work must satisfy in order to qualify as a derivative work. One of these is that a derivative work must exist in a "concrete or permanent form," *Galoob*, 964 F.2d at 967 …, **and must substantially incorporate protected material from the preexisting work**, see *Litchfield v. Spielberg*, 736 F.2d 1352, 1357 (9th Cir. 1984).

**Verbatim (154 F.3d at 1112):**
> Similarly, the N/I MAP files describe the audiovisual display that is to be generated when the player chooses to play D/N-3D using the N/I levels. **Because the audiovisual displays assume a concrete or permanent form in the MAP files, *Galoob* stands as no bar to finding that they are derivative works.**

**Verbatim (154 F.3d at 1112):**
> In making this argument, Micro Star misconstrues the protected work. **The work that Micro Star infringes is the D/N-3D story itself** … the stories told in the N/I MAP files are surely sequels … **A book about Duke Nukem would infringe for the same reason, even if it contained no pictures.**

**What it establishes.** A **pure data file, containing none of the underlying program's code**, was held to be a derivative work — because it *described protected expression* (the story) in concrete form. This is the strongest authority against a blanket "data can never be a derivative work" position, and it must be confronted head-on in (c).
**Supports / undercuts:** **Undercuts** an over-broad reading of *Galoob*. Distinguishable, but the distinction has to be reasoned, not assumed.
**Relevance: 5**

---

#### A28 · *Feist Publications, Inc. v. Rural Telephone Service Co.*, 499 U.S. 340 (1991)
**Citation/URL:** official-reporter text at `https://static.case.law/us/499/html/0340-01.html`
**Verbatim (499 U.S. at 344–45):**
> This case concerns the interaction of two well-established propositions. **The first is that facts are not copyrightable; the other, that compilations of facts generally are.** … The most fundamental axiom of copyright law is that "[n]o author may copyright his ideas or the facts he narrates."

**Verbatim (499 U.S. at 345):**
> **The sine qua non of copyright is originality.** … Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. … To be sure, **the requisite level of creativity is extremely low; even a slight amount will suffice.**

**Verbatim (499 U.S. at 362):**
> As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. **It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist.**
>
> **The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection.** … The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.

**What it establishes.** The originality floor, and its constitutional grounding. Directly governs whether copyright subsists in a set of parameter values.
**Relevance: 5**

---

### The deliverable — boundary conditions as engineering requirements

Each requirement is marked **[TEXT]** (rests on licence text — strongest available), **[STEWARD]** (rests on FSF commentary — the licence author's published interpretation, **never adopted by any US court**), or **[INFERENCE]** (weakest — reasoning from authorities not squarely on point).

---

**R1 — Separate operating-system processes. The engine's code and the runtime's code never execute in the same process image.**
*Derived from:* FSF `#MereAggregation` — "If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program." (A11); FSF `#GPLPlugins` — a main program that "uses simple fork and exec to invoke plug-ins and does not establish intimate communication between them results in the plug-ins being a separate program" (A10). **[STEWARD]**
*Test:* the engine process and runtime process have distinct PIDs at all times; neither loads the other's executable image.

**R2 — No linking of any kind, static or dynamic. The engine imports no runtime library, object, header or shared object; the runtime imports none of the engine's.**
*Derived from:* FSF `#GPLStaticVsDynamic` — "Linking a GPL covered work statically or dynamically with other modules is making a combined work based on the GPL covered work. Thus, the terms and conditions of the GNU General Public License cover the whole combination." (A12); FSF `#IfLibraryIsGPL` (A12). **[STEWARD]** — but note this is the FSF position on which it has left *no* margin, and the one most likely to be enforced. Treat it as absolute.
*Test:* a build-time and CI check that no artefact of the engine's build graph resolves to a runtime object, and that the engine's dependency manifest contains no runtime package.

**R3 — No shared address space and no shared-memory IPC.**
*Derived from:* FSF `#GPLPlugins` — "Using shared memory to communicate with complex data structures is pretty much equivalent to dynamic linking." (A10); FSF `#MereAggregation` — shared address space "almost surely means combining them into one program" (A11). **[STEWARD]**
*Test:* no `shm`/`mmap`-shared regions, no memory-mapped files, no in-process plug-in host between the two.

**R4 — Communication over a network socket or an arm's-length IPC channel only (sockets, pipes, HTTP over a socket, command-line invocation).**
*Derived from:* FSF `#MereAggregation` — "By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs." (A11). Reinforced by GPL-3.0 §0's "Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying" (A1). **[STEWARD]** for the separateness inference; **[TEXT]** for the no-conveying inference.

**R5 — A data-only protocol. The message on the wire is a flat, self-describing, serialised set of scalar fields; it carries no code, no callbacks, no object graphs, no pointers, no runtime-internal types, and no serialised runtime state.**
*Derived from:* FSF `#MereAggregation` — the criterion depends on "the **semantics** of the communication (what kinds of information are interchanged)," and intimacy "exchanging complex internal data structures" can override the mechanism (A11); FSF `#GPLPlugins` — "intimate communication by sharing complex data structures, or shipping complex data structures back and forth, that can make them one single combined program" (A10). **[STEWARD]**
*Applied to the configuration:* the signal `{ rule_id, rule_version, instrument, side, fired_at, source_id, source_signature }` is seven flat scalars. It is on the far side of "arm's length" from anything the FSF describes as intimate. This is the requirement the configuration satisfies most comfortably, and the boundary must not be allowed to drift — every field added to the message moves it toward "intimate."

**R6 — No shared internal data structures. Neither side may reuse the other's internal type definitions, schema headers, memory layouts or serialisation classes. The contract is a specification document; each side implements its own encoder and decoder from that document.**
*Derived from:* FSF `#MereAggregation` and `#GPLPlugins` as above (A10, A11); and, separately, from *Google v. Oracle* (A17), where the Court **assumed for argument's sake** that API declaring code was copyrightable and decided only fair use — so verbatim reuse of the runtime's declaration files is a copyright act of unsettled status, not a free act. **[STEWARD]** for the boundary point; **[INFERENCE]** for the Oracle point (the Court's assumption is not a holding).

**R7 — Reciprocal functional independence. The engine must be usable, and useful, without the runtime; the runtime must be usable, and useful, without any particular engine.**
*Derived from:* GPL-3.0 §5's aggregate proviso — an aggregate consists of "other **separate and independent** works, **which are not by their nature extensions of the covered work**, and which are not combined with it such as to form a larger program" (A3). **[TEXT]** — this is the strongest-grounded requirement in the list, and the one most at risk on the facts.
*Test:* the runtime accepts a conforming signal from any source implementing the published contract, and ships with at least a reference/test source; the engine emits conforming signals to any conforming consumer, and has a documented, exercised path to a consumer that is not the runtime. If the engine has no reason to exist except to feed this runtime, a court applying §5's own words could find it "by [its] nature an extension of the covered work" — no FSF commentary is needed to reach that reading.

**R8 — Independent distribution. The runtime is obtained by the member from the runtime's own publisher. The engine is never bundled, installed, packaged, containerised or imaged together with the runtime by anyone.**
*Derived from:* GPL-3.0 §5(c) — the whole-work condition bites on "**convey**[ing] a work based on the Program" (A3); §0's definition of "convey" (A1); §2 — "You may make, run and propagate covered works that you do not convey, without conditions" (A2); and, if they ever *are* shipped together, the aggregate proviso in §5 (A3). FSF `#AggregateContainers` confirms containers change nothing. **[TEXT]**

**R9 — The hosted engine must never transfer a copy of the runtime, or of any part of it, to anyone.**
*Derived from:* GPL-3.0 §0 — "Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying" (A1); GPL-3.0 §13, which contains **no** network-interaction obligation and only permits AGPL combination (A8), contrasted with AGPL-3.0 §13, which does impose one (A9); FSF `#UnreleasedMods` — "The GPL permits anyone to make a modified version and use it without ever distributing it to others. … The situation is different when the modified program is licensed under the terms of the GNU Affero GPL." (A15). **[TEXT]**, with **[STEWARD]** confirmation.
*Why this is the load-bearing requirement:* it holds **even if every other requirement failed**. A hosted party that never conveys has no §5 obligation to discharge, because §5 has nothing to attach to. This is the single most important consequence of the runtime being **GPL-3.0-only rather than AGPL-3.0**, and it should be recorded as a deliberate, protected architectural choice: relicensing the runtime to AGPL-3.0 would destroy it.

**R10 — No wrapper, shim or adapter offered as a substitute for R1–R6.**
*Derived from:* FSF `#GPLWrapper` — "The fact that proprietary module A communicates with GPL-covered module C only through X11-licensed module B is legally irrelevant; what matters is the fact that module C is included in the whole." (A13). **[STEWARD]**

**R11 — The published integration contract stays a specification, and stays stable.**
*Derived from:* GPL-3.0 §5's "not by their nature extensions" (A3) — a contract published for all comers, implemented by multiple independent parties, is evidence of independence; a contract that in practice describes one private coupling is not. Reinforced by FSF `#LinkingOverControlledInterface`, whose template turns on communication "solely through the ABCDEF interface" and on the interface not being modified (A16). **[TEXT]** + **[STEWARD]**

**R12 — Belt and braces: consider a §7 additional permission naming the published contract.**
*Derived from:* GPL-3.0 §7 — "'Additional permissions' are terms that supplement the terms of this License by making exceptions from one or more of its conditions." (A4); FSF `#LinkingOverControlledInterface` supplies a drafted template (A16). **[TEXT]**
*Caveats, from the text itself:* (i) only the copyright holders can grant it — every inbound contribution must arrive under terms compatible with it, or the exception becomes unavailable as the contributor base grows; (ii) per §7, a downstream conveyor "may at your option remove any additional permissions from that copy"; (iii) per FSF `#LinkingOverControlledInterface`, "people who make modified versions of ABC are not obligated to grant this special exception for their modified versions." An exception protects the *published* runtime, not every fork of it.

**R13 — Do not rely on any one requirement alone. Document compliance contemporaneously.**
*Derived from:* *Progress Software v. MySQL AB*, 195 F. Supp. 2d at 329 (A20) — a US court has already characterised "derivative or an independent and separate work" as a **question of fact** on which expert affidavits created a "fair dispute." A factual question is won with a contemporaneous record — build manifests, dependency graphs, protocol schema versions, evidence of multiple independent implementations — not with an argument constructed after a demand letter. **[INFERENCE]**

---

### The reverse direction — configuration data

**The question.** The runtime copies the member's engine-side configuration into its local policy. Does that create licence entanglement?

**1. The GPL's conditions run in one direction only, and this is the wrong direction.**
GPL-3.0 §5 conditions the act of **conveying a work based on the Program** (A3). §0 defines "work based on" as the product of *modifying* — "to copy from or adapt all or part of **the work**" (A1). The work is the runtime. Ingesting data produced elsewhere is not copying from or adapting the runtime. Nothing in §0's definitions is triggered by *what a covered work reads*. Even on the most aggressive reading, ingestion of third-party data cannot make the **runtime** a work based on the data's source, because the GPL says nothing about the runtime's relationship to inputs — it speaks only to works based on the Program. **The licence is silent, and the silence is structural, not accidental.**

**2. The licence steward has addressed exactly this and says the same.**
FSF `#IfInterpreterIsGPL` (A14): "The interpreted program, to the interpreter, is **just data**; a free software license like the GPL, based on copyright law, **cannot limit what data you use the interpreter on**." And `#GPLOutput` (A14): "copyright law does not give you any say in the use of the output people make from their data using your program. If the user uses your program to enter or convert her own data, the copyright on the output belongs to her, not you." Steward commentary, not law — but it is the steward disclaiming reach, which is the direction in which its commentary is least likely to be doubted. Note the FSF's own carve-out: the answer changes where the interpreter is extended with **bindings** that link the interpreted program to GPL facilities. A parameter set is not a binding. If the "configuration" ever grows into loadable executable logic, this analysis stops applying and R1–R6 take over.

**3. Does copyright subsist in the parameter values at all? Probably not, and *Feist* is why.**
The configuration is described as universe membership/filtering, trigger points, thresholds, buy/sell logic and trading windows — i.e., numbers, tickers, dates and enumerated choices.
- *Feist*, 499 U.S. at 344–45: "facts are not copyrightable"; "[n]o author may copyright his ideas or the facts he narrates." A threshold of 4%, a trading window of 09:45–15:30, a ticker symbol — these are facts and selections, not expression (A28).
- *Feist*, 499 U.S. at 345: originality demands independent creation plus "at least some minimal degree of creativity," and "the requisite level of creativity is extremely low." A curated list of instruments could clear that bar; a list of numeric settings ordered by the form fields that collect them almost certainly cannot.
- *Feist*, 499 U.S. at 362: "the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever," and the white pages were "devoid of even the slightest trace of creativity." A settings blob whose structure is dictated by the schema is arrangement by the schema, not by an author.
- 17 U.S.C. §102(b) (A25): copyright does not extend to "any … procedure, process, system, method of operation … regardless of the form in which it is described." A rule's operating parameters are close to the core of §102(b).
- 17 U.S.C. §103(b) (A25): even where a compilation clears *Feist*, protection reaches only the compiler's contribution, not the underlying values.

**4. On the facts, the values are largely the member's own — but do not over-rely on that.** The frozen configuration states that the member's local policy fields "are entered by the member during onboarding, field by field; fields start empty; there are no presets." To the extent the engine-side configuration is likewise the member's own entry, there is no third party whose expression could be at issue at all. **However** — the commission's facts also say engine-side settings cover "universe membership/filtering, trigger points, thresholds, buy/sell logic and trading windows." Where any of that originates with the engine builder (defaults, a curated universe, a supplied rule library), the authorship shifts to the builder. That changes *who* might complain; it does not change the *Feist* answer, and it changes the GPL answer not at all.

**5. The adverse authority, confronted: *Micro Star*.**
*Micro Star v. FormGen*, 154 F.3d at 1112 (A27), held that a **pure data file containing none of the underlying program's code** was a derivative work, because the MAP files "describe the audiovisual display … in painstaking detail" and thereby told sequels to a protected story: "A book about Duke Nukem would infringe for the same reason, even if it contained no pictures." That is the authority for "data can be a derivative work."
*The distinction, stated rather than assumed:* what made the MAP files derivative was that they **described protected expression** — Duke's story — in concrete form. The runtime has no analogous expressive content for a configuration to describe. A set of thresholds does not narrate, depict or recast any expression belonging to the runtime; it selects among operating parameters, which is §102(b) territory. And *Galoob*, 964 F.2d at 967–68 (A26) is the closer analogue: the Game Genie substituted **data bytes** to change how a copyrighted program behaved, and the Ninth Circuit held that "[t]he altered displays do not incorporate a portion of a copyrighted work in some concrete or permanent form. … It cannot be a derivative work."
*Where this leaves it:* the distinction is sound on the authorities, but it is a distinction a party would have to *make*, on facts, in front of a judge. No court has drawn it for software configuration.

**6. What the analysis does not resolve — say so plainly.**
- No court has held that ingesting third-party configuration data into a GPL program does, or does not, create licence entanglement. **There is no authority either way.**
- The GPL's silence is a strong argument, but silence is what it is: a licence that does not address a scenario has not blessed it.
- If the "configuration" ever ceases to be inert values — if it becomes a script, an expression language, a loadable rule module, anything the runtime *executes* rather than *reads* — the FSF's `#IfInterpreterIsGPL` bindings carve-out and R1–R6 become live, and this analysis must be redone.

---

### GPL-3.0 §11 — what the contributor patent grant does, generically

**Verbatim, GPL-3.0 §11 in full** (from `https://www.gnu.org/licenses/gpl-3.0.txt`):

> **11. Patents.**
>
> A "contributor" is a copyright holder who authorizes use under this License of the Program or a work on which the Program is based. The work thus licensed is called the contributor's "contributor version".
>
> A contributor's "essential patent claims" are all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, "control" includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.
>
> Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.
>
> In the following three paragraphs, a "patent license" is any express agreement or commitment, however denominated, not to enforce a patent (such as an express permission to practice a patent or covenant not to sue for patent infringement). To "grant" such a patent license to a party means to make such an agreement or commitment not to enforce a patent against the party.
>
> If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. "Knowingly relying" means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.
>
> If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.
>
> A patent license is "discriminatory" if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.
>
> Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.

**What the text does, generically — for anyone who contributes to any GPL-3.0 project.**

1. **Who becomes a contributor.** "A contributor is a copyright holder who authorizes use under this License of the Program or a work on which the Program is based." The trigger is *authorizing use under the licence* — releasing or contributing copyrighted material into a GPL-3.0 project. It is not conditioned on size, on acceptance of a patch, or on any signed agreement.

2. **What the "contributor version" is — and it is wider than intuition suggests.** "The work thus licensed is called the contributor's 'contributor version'." The contributor version is **the work the contributor licensed**, not merely the lines the contributor wrote. A contributor who releases a whole program under GPL-3.0 has a contributor version consisting of that whole program. **Contrast:** the FSF states in its FAQ (`#LGPLv3ContributorVersion`) that under **LGPLv3**, "The 'contributor version' is only your version of the library." That answer is about LGPLv3 and does not narrow GPL-3.0's own text.

3. **What claims are captured.** "[A]ll patent claims **owned or controlled** by the contributor, **whether already acquired or hereafter acquired**, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version." Three generic consequences: (i) it reaches claims the contributor does not own but controls, and "control" expressly "includes the right to grant patent sublicenses"; (ii) it reaches **future-acquired** patents, so a patent filed or bought later that reads on the contributor version is caught; (iii) it is anchored to acts **permitted by this License** performed on the **contributor version** as licensed.

4. **What is excluded.** Claims "that would be infringed **only as a consequence of further modification** of the contributor version." The grant does not follow the code into inventions that only downstream modification would practise. This is the grant's outer limit and the main thing that keeps it from being open-ended.

5. **The grant itself.** "Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version." It runs to **every licensee**, automatically, without a separate instrument, and it covers the full commercial set — make, use, sell, offer for sale, import — not merely internal use.

6. **Downstream shielding — two distinct mechanisms.**
 - *"Knowingly relying" (¶5):* a conveyor who knowingly relies on a private patent licence, where the Corresponding Source is not publicly available, must do one of three things: publish the source, give up the benefit of that patent licence for the work, or extend the patent licence to downstream recipients. The purpose is to stop a distributor from enjoying patent peace that its recipients do not get.
 - *Automatic extension (¶6):* if, in a single transaction or arrangement, a conveyor grants a patent licence to *some* recipients of a specific copy, "then the patent license you grant is automatically extended to all recipients of the covered work and works based on it." Selective patent peace collapses into universal patent peace.

7. **Discriminatory-licence prohibition (¶7).** A conveyor may not be party to an arrangement with a software distributor under which payments track conveying volume and the distributor grants recipients a *discriminatory* patent licence — subject to a grandfather date of 28 March 2007.

8. **Patent retaliation lives in §10, not §11 — state this precisely.** GPL-3.0 §10's final paragraph provides: "You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License. For example, … you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it." The FSF confirms the reading in `#v3PatentRetaliation`: "**In effect, yes.** Section 10 prohibits people who convey the software from filing patent suits against other licensees. If someone did so anyway, section 8 explains how they would lose their license and any patent licenses that accompanied it." Note the FSF's own hedge — "in effect."

9. **Version-specific, per the steward.** FSF `#v2OrLaterPatentLicense`: "No. When you convey GPLed software, you must follow the terms and conditions of **one particular version** of the license. … If users may also elect to use later versions of the GPL, that's merely an additional permission they have—it does not require you to fulfill the terms of the later version." Contributing under "GPLv2 or later" does not, on the FSF's own account, automatically make the contributor a GPLv3 §11 grantor.

10. **No implied-licence displacement.** Final paragraph: "Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law." §11 adds to, and does not substitute for, whatever patent defences exist independently.

11. **§12 backstop.** Where a court order, agreement or patent obligation contradicts the licence's conditions, §12 provides that it does "not excuse you from the conditions of this License," and "if you cannot convey a covered work so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not convey it at all."

**Not addressed, per the commission's express instruction:** no assessment is offered here of any party's patent holdings, filings, applications or plans. The above states the operation of the licence text, not its application to any portfolio.

---

### Adverse register

**Threat 1 — The FSF's positions are steward commentary, have never been tested in a US court, and a court could draw the line elsewhere. Severity 5.**
The linking and plug-in answers (A10, A12) are the FSF's published interpretation of a licence it authored. **No US court has adopted them.** The FSF itself says so in the very answer that matters most: `#MereAggregation` — "**This is a legal question, which ultimately judges will decide.** We believe that a proper criterion depends both on the mechanism of communication … and the semantics of the communication." A licensor's view of its own licence is evidence of intent at best; it is not a canon of construction, and where the licence text defers to copyright law (§0's "in a fashion requiring copyright permission"), a court would apply *§101, Galoob, Micro Star, Litchfield* — not the FAQ. **A design that satisfies the FSF's criteria has satisfied the party most likely to complain; it has not satisfied a court, because no court has spoken.**

**Threat 2 — *Progress Software* treated the very question as a contested question of fact, and inclined the other way on that record. Severity 5.**
195 F. Supp. 2d at 329: "Affidavits submitted by the parties' experts raise a factual dispute concerning whether the Gemini program is a derivative or an independent and separate work under GPL ¶ 2. **After hearing, MySQL seems to have the better argument here**, but the matter is one of fair dispute." The one time a US court looked at this, it (a) called it a fact question, (b) leaned toward the copyleft side, and (c) resolved nothing. A separateness position is therefore not a legal shield; it is a factual case that has to be built and evidenced in advance.

**Threat 3 — §5's own words, not the FAQ, are the sharpest edge: "not by their nature extensions of the covered work." Severity 4.**
This phrase is **licence text**, so it does not carry the FAQ's weakness. An engine built to feed one runtime, sold on the strength of that runtime, and useless without it, invites the reading that it is by its nature an extension. The countermeasure is R7 — genuine, demonstrated, exercised independence in both directions — and it is an ongoing operational obligation, not a one-off design decision. Reciprocally, a runtime whose only real-world source is one proprietary engine weakens the same argument from the other side.

**Threat 4 — *Jacobsen* means the downside is copyright infringement, not a contract claim; and *Vizio* means the plaintiff class may be far larger than the copyright holders. Severity 4.**
*Jacobsen*, 535 F.3d at 1380: "If … a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement." Getting the boundary wrong therefore risks injunctive relief and copyright remedies, not damages alone. And *SFC v. Vizio* (A21) held a **recipient's** third-party-beneficiary contract claim for source disclosure not preempted, expressly leaving open whether that status exists — "whether SFC can successfully show it is a third-party beneficiary of the GPL Agreements is a question of state law that is not before this Court." If that theory succeeds, any member could in principle be a claimant.

**Threat 5 — *Micro Star* is live authority that a pure data file can be a derivative work; and *Google v. Oracle* did not hold APIs uncopyrightable. Severity 3.**
*Micro Star*, 154 F.3d at 1112: data files that "describe the audiovisual display … in painstaking detail" were derivative works — "A book about Duke Nukem would infringe for the same reason, even if it contained no pictures." The configuration analysis in (c) rests on distinguishing that case, and the distinction has never been drawn for software configuration by any court. Separately, *Google v. Oracle*, slip op. at 15, **assumed** copyrightability "purely for argument's sake" — so any engineering plan that treats copying the runtime's declaration files as legally free is resting on a holding that does not exist.

---

### Negative findings

**N1 — The scarcity of US case law on GPL derivative scope is the central finding of this track, and it is close to total.**
A full-text search of CourtListener's opinion database on 5 September 2026 for the phrase **"GNU General Public License"** returned **six** opinions in the entire corpus: *Planetary Motion v. Techsplosion*, 261 F.3d 1188 (11th Cir. 2001) (trademark); *Wallace v. IBM*, 467 F.3d 1104 (7th Cir. 2006) (antitrust); *Computer Associates Int'l v. Quest Software*, 333 F. Supp. 2d 688 (N.D. Ill. 2004); *Jacobsen v. Katzer*, 535 F.3d 1373 (Fed. Cir. 2008) (Artistic License, not GPL); and *MedioStream v. Microsoft*, 749 F. Supp. 2d 507 (E.D. Tex. 2010). A search for **"General Public License" derivative work** returned **six**, adding *Progress Software v. MySQL AB* and the Federal Circuit's 2014 *Oracle v. Google* decision.
**Of these, exactly one — *Progress Software*, 195 F. Supp. 2d at 329 — addresses whether a program that works with GPL software is a derivative or an independent and separate work, and it expressly declines to decide, calling it a "fair dispute" between expert affidavits.**
*Caveat, stated so the finding is not overclaimed:* CourtListener's opinion corpus is not exhaustive (unreported district-court orders and some reporter volumes are absent), and a phrase search is a proxy for the substantive question. The finding is therefore: **no US court has articulated a legal test for GPL derivative scope, and none was located in this run.** That absence is load-bearing in both directions — it means neither the FSF's position nor any contrary position has authority behind it.

**N2 — GPL-3.0 contains no network-interaction clause, at §13 or anywhere else.** Its §13 is a compatibility provision permitting combination with AGPL-3.0. The obligation-creating network clause is **AGPL-3.0 §13**, a different licence. This is not an omission to be argued around: the FSF explains in `#SeparateAffero` that the requirement was deliberately removed from GPLv3 drafts and published as a separate licence precisely so that "it [is] easier to determine which code has the source publication requirement." A GPL-3.0-only runtime therefore imposes **no** obligation on a party that hosts rather than ships.

**N3 — No authority, primary or otherwise, was located on whether a GPL program's ingestion of third-party configuration data creates licence entanglement.** The GPL text is silent; the FSF FAQ addresses the adjacent questions (interpreters, outputs, data) and consistently disclaims reach; and no court has addressed it. The analysis in (c) is therefore built from the licence text, steward commentary and general copyright authority — not from anything on point.

**N4 — *Artifex v. Hancom* does far less than it is usually cited for.** It is a Rule 12(b)(6) order (25 April 2017) holding the GPL *plausibly* an enforceable contract despite no signature. It decided nothing about derivative scope, linking or APIs, and the case terminated on 17 January 2018 without a merits ruling.

**N5 — The outcome of *SFC v. Vizio* after remand could not be verified in this run.** The federal case terminated 13 May 2022 on remand to the Superior Court of California, County of Orange. No subsequent California appellate opinion was located in CourtListener (search of opinions mentioning the defendant filed after 1 June 2022 returned 14 results, none the case). The session's WebSearch budget (200/200) was exhausted before a status check could be run, and no primary-source route to Orange County Superior Court records was available from here. **Status of the state-court proceedings is unverified and must be re-checked before any reliance is placed on it.**

**N6 — No court has adopted, cited with approval, or rejected the FSF's linking, plug-in or aggregation positions.** Nothing was located applying `#GPLPlugins`, `#MereAggregation` or `#GPLStaticVsDynamic` as a legal test.

**N7 — GPL-3.0 defines no independent test for "based on."** §0 ties it to "a fashion requiring copyright permission," i.e. to copyright law. Any argument that turns on a GPL-specific derivative-work standard is arguing against the licence's own text.

**N8 — No GPLv4 exists.** GPL-3.0 (29 June 2007) remains current; gnu.org's licence-overview page (last dated 12 April 2022) still names it as the FSF's normal recommendation.

---

### Search log

| # | Source / query | Method | Date | Result / access note |
|---|---|---|---|---|
| 1 | `https://www.gnu.org/licenses/gpl-3.0.txt` | curl | 5 Sep 2026 | HTTP 200, 35,149 B, 674 lines. Plain text to an ordinary GET, as noted. §§0, 2, 5, 7, 10, 11, 12, 13 extracted verbatim by line range. |
| 2 | `https://www.gnu.org/licenses/agpl-3.0.txt` | curl | 5 Sep 2026 | HTTP 200, 34,523 B. §13 ("Remote Network Interaction") at line 540. |
| 3 | `https://www.gnu.org/licenses/gpl-faq.html` | curl | 5 Sep 2026 | HTTP 200, 197,515 B, 4,275 lines. Page footer: `Updated: $Date: 2026/01/13 15:26:29 $`. Answers extracted by `<dt id=…>` anchor and de-tagged. Anchors used: `#GPLStaticVsDynamic`, `#IfLibraryIsGPL`, `#IfInterpreterIsGPL`, `#GPLPlugins`, `#GPLAndPlugins`, `#GPLPluginsInNF`, `#NFUseGPLPlugins`, `#MereAggregation`, `#AggregateContainers`, `#GPLWrapper`, `#GPLOutput`, `#WhatCaseIsOutputGPL`, `#GPLModuleLicense`, `#UnreleasedMods`, `#UnreleasedModsAGPL`, `#InternalDistribution`, `#SeparateAffero`, `#LinkingOverControlledInterface`, `#v3PatentRetaliation`, `#v2OrLaterPatentLicense`, `#LGPLv3ContributorVersion`. |
| 4 | `https://www.gnu.org/licenses/licenses.html` | curl | 5 Sep 2026 | HTTP 200. Version-status check. Footer `$Date: 2022/04/12 09:56:19$`. |
| 5 | `https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf` | curl + pdftotext -layout | 5 Sep 2026 | HTTP 200, 330,753 B. Slip-opinion pagination used for pin-cites (1, 15, 23–24, 35). |
| 6 | `https://static.case.law/f3d/535/html/1373-01.html` (*Jacobsen*) | curl | 5 Sep 2026 | HTTP 200, 42,131 B. Star pagination present inline as `*1375`, `*1380`… — confirmed the access note: the HTML carries page labels the JSON lacks. |
| 7 | `https://static.case.law/us/499/html/0340-01.html` (*Feist*) | curl | 5 Sep 2026 | HTTP 200, 68,340 B. Pin-cites at 344–45, 345, 362 derived from inline `*NNN` markers. |
| 8 | `https://static.case.law/f-supp-2d/195/html/0328-01.html` (*Progress Software*) | curl | 5 Sep 2026 | HTTP 200, 6,772 B. Opinion spans 328–330; GPL passage located between markers `*329` and `*330` → pin-cite 329. |
| 9 | `https://static.case.law/f2d/964/html/0965-01.html` (*Galoob*) | curl | 5 Sep 2026 | HTTP 200, 44,405 B. |
| 10 | `https://static.case.law/f3d/154/html/1107-01.html` (*Micro Star*) | curl | 5 Sep 2026 | HTTP 200, 40,643 B. Pin-cites 1110, 1112. |
| 11 | CourtListener v4 search API, `type=o`, `q="GNU General Public License"` | HTTPS GET, no token | 5 Sep 2026 | **count 6.** Basis for N1. |
| 12 | CourtListener v4 search API, `type=o`, `q="General Public License" derivative work` | HTTPS GET | 5 Sep 2026 | **count 6.** Basis for N1. |
| 13 | CourtListener v4 search API, `type=o`, `q=Software Freedom Conservancy Vizio` / `q=Vizio "General Public License"` / `q="third-party beneficiary" "General Public License"` | HTTPS GET | 5 Sep 2026 | count 0 each — the remand order is not in the free opinion corpus. Confirms the need to go to RECAP. |
| 14 | CourtListener v4 search API, `type=r`, `court=cand`, `q=Artifex` | HTTPS GET | 5 Sep 2026 | count 29; identified No. 3:16-cv-06982, `pacer_case_id` 305835, docket 4548911, terminated 2018-01-17. |
| 15 | `https://storage.courtlistener.com/recap/gov.uscourts.cand.305835/gov.uscourts.cand.305835.{28–35}.0.pdf` | curl probe | 5 Sep 2026 | 29 and 32 → HTTP 200; others 404. Doc 32 = Order Re: Defendant's Motion to Dismiss, dated 25 Apr. 2017. |
| 16 | CourtListener v4 search API, `type=r`, `q=Software Freedom Conservancy` | HTTPS GET | 5 Sep 2026 | count 5,913; identified No. 8:21-cv-01943 (C.D. Cal.), `pacer_case_id` 837808, terminated 2022-05-13. |
| 17 | `https://storage.courtlistener.com/recap/gov.uscourts.cacd.837808/gov.uscourts.cacd.837808.{30–40}.0.pdf` | curl probe | 5 Sep 2026 | 30, 31, 32 → HTTP 200; others 404. Doc 30 = Civil Minutes remand order (9 pp.), 13 May 2022. |
| 18 | CourtListener v4 search API, `type=o`, `q=Vizio`, `filed_after=2022-06-01` | HTTPS GET | 5 Sep 2026 | count 14, none the case. No post-remand appellate opinion located → N5. |
| 19 | `https://uscode.house.gov/view.xhtml?...title17-section101...` | curl | 5 Sep 2026 | **Timed out (HTTP 000).** Access note: uscode.house.gov did not respond within 120 s from this environment. |
| 20 | `https://www.govinfo.gov/content/pkg/USCODE-2023-title17/html/USCODE-2023-title17-chap1-sec{101,102,103,106}.htm` | curl | 5 Sep 2026 | HTTP 200 ×4. Successful fallback for the Copyright Act; 2023 Edition. |
| 21 | WebSearch: status of *SFC v. Vizio* state-court proceedings | attempted | 5 Sep 2026 | **Not performed — session WebSearch budget exhausted (200/200).** Recorded as N5. |

**Discipline notes.** No product, project, methodology, person or domain name from the configuration appeared in any query. All case-name and party-name terms used in searches are the names of the reported authorities the commission itself specified. Secondary sources were not used as authority anywhere in this register; *Versata v. Ameriprise* (A22) is marked ◇ because it is quoted only as reproduced inside a primary source, and the parallel F. Supp. 3d citation for *Vizio* (A21) is marked ◇ as unverified.


---

<br>

# S10 · ADDENDUM TRACK 10 — Contracting with a party whose own activity may be advisory

I have all primary sources verified. Writing the report.

## S10 — Track 10: contracting with a possibly-advisory counterparty

**Frame.** The commission asks about the Company's exposure **for the counterparty's status**, assuming *arguendo* that the community/name owner is an unregistered investment adviser. Everything below is conditional on that assumption. The single most important structural finding is that the exposure is **not one route but four, with different scienter standards and different textual reach**, and that P6's reading of one of them (§208(d)) does not survive the text.

---

### S10 authority register

#### A · The assumed primary violation, and what it is worth

**A1. Advisers Act §203(a), 15 U.S.C. §80b-3(a)** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-3.htm
· **Type** statute · **Date** 2023 ed., unamended in relevant part · **Status** good law · `[CARRIED FROM P6 — S7 entry D1]`
· **Verbatim, §80b-3(a):** "Except as provided in subsection (b) and section 80b–3a of this title, it shall be unlawful for **any investment adviser, unless registered under this section, to make use of the mails or any means or instrumentality of interstate commerce in connection with his or its business as an investment adviser.**"
· **Establishes** the assumed primary violation. Critically, it is a **non-scienter** offence — no state of mind is an element. That matters downstream: under the *KPMG* rule (D2) negligence suffices to be a "cause" of a non-scienter primary violation.
· **Relevance 5** · **Application note:** the whole track is conditional; if the counterparty is not an adviser, every derivative route below fails at element one (A4).

**A2. *Zinn v. Parrish*, 644 F.2d 360 (7th Cir. 1981)** — https://static.case.law/f2d/644/html/0360-01.html
· **Type** federal appellate · **Date** 20 May 1981 · **Status** good law; not overruled · `[NEW]`
· **Verbatim, 644 F.2d at 362:** "The Act makes void any contract for investment advice made by an unregistered adviser. 15 U.S.C. § 80b-15(b)."
· **Verbatim, 644 F.2d at 364 — the sentence that matters most for this configuration:** "It is true that Zinn might have been compelled to register as an investment adviser, **even if he limited his activities to screening the securities recommendations of others before passing them along to clients**, SEC v. Wall Street Transcript Corp., 454 F.Supp. 559 (S.D.N.Y.1978), **if he made a business of such activities**. But isolated transactions with a client as an incident to the main purpose of his management contract to negotiate football contracts do not constitute engaging in the business of advising others on investment securities."
· **Establishes** the nearest primary judicial description of what curating/screening a securities list is worth. Zinn escaped only because it was **one client, incidental, non-periodic**. A monthly universe supplied to all paying members is the opposite of every fact that saved him.
· **Undercuts** (it strengthens the arguendo premise rather than defeating it) · **Relevance 5**
· **Application note:** this is the clean primary authority P6's S5 lacked for the universes limb — it says judgment-applying selection *passed along* can require registration, and identifies "made a business of it" as the only limiter.

**A3. *SEC v. National Executive Planners, Ltd.*, 503 F. Supp. 1066 (M.D.N.C. 1980)** — https://static.case.law/f-supp/503/html/1066-01.html
· **Type** federal district court, partial summary judgment · **Date** 5 Dec 1980 · **Status** good law; sparsely cited · `[NEW]`
· **Verbatim, 503 F. Supp. at 1074:** "NEP actively promoted its expertise in the area of financial planning and investment advice. **There is no indication, however, that NEP received compensation for its investment advice.** … **NEP is thus not an investment adviser within the meaning of the Investment Advisers Act, and the NEP defendants cannot be liable for its failure to register as an investment adviser.**"
· **Establishes** the only located federal opinion squarely deciding an **aiding-and-abetting-a-§203(a)-violation** claim. It failed entirely because the primary party was not an adviser. Derivative liability for registration status is wholly parasitic on a completed primary violation.
· **Supports** · **Relevance 4** · **Application note:** the Company's strongest single defensive posture is not separation from the counterparty — it is the counterparty not being an adviser. Every dollar of diligence spent there is worth more than any contractual firewall.

#### B · Advisers Act §209(f) and §209(d) — aiding and abetting

**B1. Advisers Act §209(f), 15 U.S.C. §80b-9(f)** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-9.htm
· **Type** statute · **Date** added by Dodd-Frank §929N, 21 July 2010, 124 Stat. 1862 · **Status** good law, unamended since · `[CARRIED FROM P6 — S7 entry B3; VERIFIED AND EXPANDED]`
· **Verbatim in full:** "**(f) Aiding and abetting.** For purposes of any action brought by the Commission **under subsection (e)**, any person that **knowingly or recklessly** has aided, abetted, counseled, commanded, induced, or procured a violation of any provision of this subchapter, or of any rule, regulation, or order hereunder, **shall be deemed to be in violation of such provision, rule, regulation, or order to the same extent as the person that committed such violation.**"
· **The §929N provenance, verbatim from the Code's own amendment note:** "2010—… **Subsec. (f). Pub. L. 111–203, §929N, added subsec. (f).**"
· **The textual limit P6 identified — VERIFIED, and it is real.** The subsection opens "For purposes of any action brought by the Commission under subsection (e)". §209(e) is headed "**Money penalties in civil actions**" and authorises the Commission to "bring an action in a United States district court to seek … a civil penalty." So §209(f)'s "knowingly or recklessly" standard, and its deeming provision, are **by their own terms confined to Commission civil-penalty actions in district court.** They do not by text extend to §209(d) injunctions, to §203(k) administrative cease-and-desist proceedings, or to §203(e)/(f) administrative sanctions.
· **What it means in practice:** the limit is narrower than it looks. It does not shrink the Company's exposure; it only means the Commission must pick its vehicle. The §203(k) "cause" route (D1) is unconstrained by §209(f) and carries a *lower* mental-state threshold. §209(f) is the route that carries **money penalties**.
· **Undercuts** · **Relevance 5** · **Application note:** the Company should not treat the "under subsection (e)" limit as protective. It allocates remedies, not liability.

**B2. Advisers Act §209(d), 15 U.S.C. §80b-9(d)** — same URL
· **Type** statute · **Status** good law; last amended 1987 (redesignation) · `[CARRIED FROM P6 — S7 entry D5; QUOTED IN FULL HERE]`
· **Verbatim:** "Whenever it shall appear to the Commission that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any provision of this subchapter, or of any rule, regulation, or order hereunder, **or that any person has aided, abetted, counseled, commanded, induced, or procured, is aiding, abetting, counseling, commanding, inducing, or procuring, or is about to aid, abet, counsel, command, induce, or procure such a violation**, it may in its discretion bring an action in the proper district court … to enjoin such acts or practices … Upon a showing that such person has engaged, is engaged, or is about to engage in any such act or practice, **or in aiding, abetting, counseling, commanding, inducing, or procuring any such act or practice, a permanent or temporary injunction or decree or restraining order shall be granted without bond.**"
· **Establishes** an independent, older aiding-and-abetting hook for **injunctive relief**, reaching "any person", with **no stated mental-state qualifier at all** — no "knowingly", no "recklessly". §929N did not touch it.
· **Undercuts, and more than P6 credited.** The relationship between §209(d) and §209(f) is the sharpest unresolved textual question in this track: §209(f) supplies a recklessness floor for penalty actions, while §209(d) — the injunction provision — states none. Whether courts read a common-law scienter requirement into §209(d) was **not resolved by any authority located**. Note the mandatory "shall be granted without bond".
· **Relevance 5** · **Application note:** an injunction against the Company would be commercially fatal irrespective of penalty exposure, and §209(d) is the cheapest route to one.

**B3. *SEC v. Apuzzo*, 689 F.3d 204 (2d Cir. 2012)** — https://static.case.law/f3d/689/html/0204-01.html
· **Type** federal appellate · **Date** 8 Aug 2012 · **Status** good law; 44 citing opinions located in the CourtListener corpus, no adverse treatment found · `[NEW]`
· **Verbatim, 689 F.3d at 206:** "In order for a defendant to be liable as an aider and abettor in a civil enforcement action, the SEC must prove: '**(1) the existence of a securities law violation by the primary (as opposed to the aiding and abetting) party; (2) 'knowledge' of this violation on the part of the aider and abettor; and (3) 'substantial assistance' by the aider and abettor in the achievement of the primary violation.**'"
· **Verbatim, 689 F.3d at 206 (the holding on element three):** "we hold that to satisfy the 'substantial assistance' component of aiding and abetting, the SEC must show that the defendant '**in some sort associate[d] himself with the venture, that he participated in it as in something that he wishe[d] to bring about, [and] that he [sought] by his action to make it succeed.**' United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)."
· **Verbatim, 689 F.3d at 213 — the rejection of a causation limit:** "**We now clarify that, in enforcement actions brought under 15 U.S.C. § 78t(e), the SEC is not required to plead or prove that an aider and abettor proximately caused the primary securities law violation.** … because only the SEC may bring aiding and abetting claims for securities law violations, **many if not most aiders and abettors would escape all liability if such a proximate cause requirement were imposed**, since, almost by definition, the activities of an aider and abettor are rarely the direct cause of the injury brought about by the fraud, however much they may contribute to the success of the scheme."
· **Establishes** the governing content of "substantial assistance" in the Second Circuit, and expressly refuses to require causation. The district court in *Apuzzo* had found only **but-for** causation and dismissed; the Second Circuit reversed and held but-for was more than enough.
· **Undercuts, strongly.** This is the single most damaging authority to any "we are structurally remote, we did not cause anything" argument. Remoteness is not a defence to substantial assistance; the test is participation and shared purpose.
· **Relevance 5** · **Application note:** an express contractual recital that the Company wants the counterparty's community to succeed, or any marketing that presents the two as a joint venture, feeds the *Peoni* formulation directly. This is an authority about how the arrangement is **described and behaves**, not about wire diagrams.
· **Caveat:** *Apuzzo* construes Exchange Act §20(e). §209(f) is textually parallel ("knowingly or recklessly has aided, abetted…"), but **no located authority applies the *Apuzzo* test to §209(f)**. ◇ on the transfer.

**B4. *SEC v. Big Apple Consulting USA, Inc.*, 783 F.3d 786 (11th Cir. 2015)** — https://static.case.law/f3d/783/html/0786-01.html
· **Type** federal appellate · **Date** 9 Apr 2015 · **Status** good law · `[NEW]`
· **Verbatim, 783 F.3d at 800, quoting *Woods v. Barnett Bank*, 765 F.2d 1004, 1009–10 (11th Cir. 1985):** the aider-abettor must have "**knowingly and substantially assisted the violation**"; and "'[s]evere recklessness can satisfy the scienter requirement in an aiding and abetting case.'"
· **Verbatim, 783 F.3d at 800–01, on Dodd-Frank:** "The amendment to § 20(e) was intended to correct the holding of '[a] growing number of courts' who concluded 'that knowingly means actual knowledge, rather than recklessness.' H.R.Rep. No. 111—687(I), at 80 (2010). The amendment '**clarif[ies] that recklessness is sufficient for bringing an aiding and abetting action.**' Id.; see also H.R.Rep. No. 111-517, at 870 (2010) (Conf. Rep.) (stating that the amendment to § 20(e) '**makes clear that the intent standard in SEC enforcement actions for aiding and abetting is recklessness**')."
· **The structurally relevant fact:** the aiding-and-abetting claim that was resolved on summary judgment was that **Jablon and Kaley aided and abetted Big Apple's and MJMM's §15(a) violations** — i.e. aiding and abetting an **unregistered-intermediary registration violation**, exactly the shape of the hypothesis here. The district court held they "were at least **severely reckless** in providing substantial assistance to Big Apple's and MJMM's § 15(a) violations" (783 F.3d at 799).
· **Establishes** (i) recklessness suffices; (ii) the legislative history of the Dodd-Frank amendments confirms it deliberately; (iii) aiding-and-abetting liability for a *registration* violation by another party is real and has been imposed.
· **Undercuts** · **Relevance 5** · **Application note:** the respondents were the firm's own principals, not an arm's-length commercial counterparty — that is the distinction, and it is the only one available.

**B5. *Camp v. Dema*, 948 F.2d 455 (8th Cir. 1991), applied in *SEC v. Benger*, 697 F. Supp. 2d 932 (N.D. Ill. 2010)** — https://static.case.law/f-supp-2d/697/html/0932-01.html
· **Type** federal appellate rule, applied in an SEC enforcement case · **Date** 1 Nov 1991 / 10 Mar 2010 · **Status** good law · `[NEW]`
· **Verbatim, *Camp*, 948 F.2d at 459, as quoted at *Benger*, 697 F. Supp. 2d at 941:** "**A party who engages in atypical business transactions or actions which lack business justification may be found liable as an aider and abettor with a minimal showing of knowledge. Conversely, a party whose actions are routine and part of normal everyday business practices would need a higher degree of knowledge for liability to attach.**"
· **The two facts that flipped it in *Benger*, 697 F. Supp. 2d at 941–42:** (i) the defendant "**did have a financial stake in the fraud**" — one percent of gross proceeds; (ii) his "**own expertise in compliance with securities laws**" made the irregularity inferable to him.
· **Establishes** a sliding scale on the knowledge element keyed to how ordinary the assisting conduct is. This is the **best supporting authority located for the Company.** A brand licence plus a revenue share is routine, everyday commercial practice with obvious business justification.
· **Supports** · **Relevance 4**
· **Application note:** two things destroy the benefit — a financial stake **in the specific activity in question**, and demonstrated securities-law sophistication on the Company's side. The 20%'s express allocation away from the lists is aimed precisely at the first; whether that allocation is credited is question F1.

#### C · Advisers Act §208(d) — indirect violation

**C1. Advisers Act §208(d), 15 U.S.C. §80b-8(d)** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-8.htm
· **Type** statute · **Date** added by Pub. L. 86–750, §11(b), 13 Sept 1960, 74 Stat. 887; **unamended in 66 years** · **Status** good law · `[SUPERSEDES P6 S7 entry D4 as to what §208(d) reaches]`
· **Verbatim in full:** "**(d) Use of indirect means to do prohibited act.** It shall be unlawful for any person indirectly, or through or by any other person, to do any act or thing which **it would be unlawful for such person to do directly** under the provisions of this subchapter or any rule or regulation thereunder."
· **The correction.** P6's S7 (entry D4, adverse-register line 3) treated §208(d) as an anti-conduit provision that "expressly forecloses … 'the member's own runtime did it, not us'", scored threat 5. On the text, **§208(d) does not reach a third party's violation at all.** The antecedent of "such person" is the actor — "any person" at the head of the sentence. §208(d) prohibits **X** from doing indirectly what would be unlawful **for X** to do directly. It is a self-referential anti-evasion provision, not a secondary-liability provision. Applied here: §208(d) bites only if **the Company itself** would be an unregistered adviser and is conducting *its own* advisory business through the counterparty. It does not make the Company liable for the counterparty's registration status.
· P6's use of §208(d) in the *individual-acting-through-his-own-entity* direction (S7 Part D) was correct on its own facts. Its extension to Track 10's question is not supported by the text.
· **Supports** (on Track 10's specific question) · **Relevance 5**
· **Status caveat — this reading is untested.** See C2. No court has construed subsection (d). The reading above is a textual one, not a holding.

**C2. NEGATIVE FINDING — §208(d) remains essentially unlitigated. VERIFIED AND UNCHANGED.** `[CARRIED FROM P6 — S5 entry A15; RE-RUN 5 Sept 2026]`
· **Method:** CourtListener REST v4 search API, `type=o` (federal + state opinion corpus), run 5 Sept 2026.
· `"80b-8"` → **COUNT 4**, identical to P6's result: *Teicher v. SEC* (D.C. Cir. 1999); *Financial Planning Ass'n v. SEC* (D.C. Cir. 2007) ×2 records; *Sullivan v. Chase Investment Services of Boston, Inc.*, 79 F.R.D. 246 (N.D. Cal. 1978). **None applies subsection (d).**
· `"indirectly, or through or by any other person"` (the exact statutory phrase) → **COUNT 0.**
· **Nothing new exists.** Twelve months of corpus growth since P6's run has added no opinion applying §208(d).
· **Relevance 5 as a negative finding.** The entire operative content of §208(d) is three sentences in three SEC releases (IA-1092 at 9; IA-1633 n.134; IA-5653 n.403), none on facts resembling this configuration.

**C3. IA-5653 (Investment Adviser Marketing), Rel. No. IA-5653, at 122 and nn. 403–404 (22 Dec 2020), 86 Fed. Reg. 13024 (5 Mar 2021)** — https://www.sec.gov/files/rules/final/2020/ia-5653.pdf
· **Type** Commission adopting release · **Status** final rule in force · `[CARRIED FROM P6 — S5 entry A6; RE-VERIFIED 5 Sept 2026 by direct fetch of the 2.48 MB PDF]`
· **Verbatim, at 122 (text at n.403):** "However, **any compensation arrangement structured to avoid the final rule's restrictions, depending on the facts and circumstances, would violate section 208(d) of the Act's general prohibitions against doing anything indirectly which would be prohibited if done directly.**"
· **Verbatim, at 122 (text at n.404) — the allocation sentence:** "any employee, officer, director, or person with similar status or functions that is an ineligible person **may not directly or indirectly receive compensation for a testimonial or endorsement (e.g., by receipt of a share of profits the entity receives from the testimonial or endorsement, or as a bonus tied to the entity's overall profits without setting aside revenue from testimonials and endorsements)**."
· **Establishes** the closest primary language to the 20% question: the Commission treats **a share of an entity's general profits as indirect receipt of compensation for the specific underlying activity**, and identifies the failure to **set aside** revenue as what makes it so.
· **Undercuts** · **Relevance 5**
· **Application note, stated precisely.** This cuts both ways and the direction matters. The Commission's complaint is about *failure to segregate* — which is an argument that an **express allocation** is the very thing the Commission asks for. But the passage also shows the Commission is willing to look through a general revenue share to the activity it functionally rewards. Note the predicate limit: this is written inside a rule whose payer is a registered or required-to-be-registered adviser. The Company is neither.

#### D · The "cause" standard — the route that actually bites

**D1. Advisers Act §203(k)(1), 15 U.S.C. §80b-3(k)(1); Exchange Act §21C(a), 15 U.S.C. §78u-3(a)** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-3.htm · https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2B-sec78u-3.htm
· **Type** statute · **Status** good law · `[CARRIED FROM P6 — S7 entry A3; both texts re-fetched and confirmed word-identical 5 Sept 2026]`
· **Verbatim, §80b-3(k)(1):** "If the Commission finds, after notice and opportunity for hearing, that any person is violating, has violated, or is about to violate any provision of this subchapter, or any rule or regulation thereunder, the Commission may publish its findings and enter an order requiring such person, **and any other person that is, was, or would be a cause of the violation, due to an act or omission the person knew or should have known would contribute to such violation**, to cease and desist from committing or causing such violation and any future violation of the same provision, rule, or regulation."
· **§78u-3(a) is word-for-word identical** in the operative clause, substituting "this chapter" for "this subchapter".
· **Establishes** a route with (i) **no relationship element** — "any other person"; (ii) **no registration or association predicate**; (iii) **no compensation element**; and (iv) a **negligence-flavoured** mental state.
· **Undercuts, decisively.** Nothing in the frozen configuration's separation defeats a provision with no relationship element.
· **Relevance 5**

**D2. *KPMG, LLP v. SEC*, 289 F.3d 109 (D.C. Cir. 2002)** — https://static.case.law/f3d/289/html/0109-01.html
· **Type** federal appellate, on petition for review of a Commission order · **Date** decided 14 May 2002; rehearing and rehearing en banc denied 16 July 2002 · **Status** good law · `[NEW — this is the appellate confirmation P6 lacked]`
· **Verbatim, 289 F.3d at 120:** "Moreover, **the Commission was virtually compelled by Congress' choice of language in enacting Section 21C to interpret the phrase 'an act or omission the person knew or should have known would contribute to such violation' as setting a negligence standard.** See Order at 38. … Yet **the plain language of Section 21C invokes, as the Commission stated, 'classic negligence language.'**"
· **Verbatim, 289 F.3d at 113 (holding):** "**the Commission properly could use a negligence standard to enforce violations of the Exchange Act and Commission rules under Section 21C.**"
· **Establishes** appellate confirmation that "knew or should have known would contribute" is a **negligence** standard, and that the Commission may use §21C against a **secondary/causing** party (an outside auditor with no registration and no association) who was not the primary violator.
· **Undercuts, at maximum strength.** Combined with A1 (§203(a) is a non-scienter offence), this means the Company can be a "cause" of the counterparty's registration violation on **simple negligence** — no knowledge, no recklessness, no intent, no relationship, no compensation nexus.
· **Relevance 5**
· **What *KPMG* did NOT decide — flagged honestly.** KPMG argued "that it was improper to impose a cease-and-desist order on it for causing a violation of Section 13(a) in the absence of such an order against the primary violator." The court held the argument **waived** for failure to press it below (289 F.3d at 120): "Because the Commission has not had an opportunity to address KPMG's primary violator contention, it is not properly before the court." **The question whether the primary violator must be charged is therefore open in the D.C. Circuit.** But see D3 — the Commission's own practice answers it in the negative.

**D3. *In the Matter of Zachary Coburn*, Exchange Act Rel. No. 84553, Admin. Proc. File No. 3-18888** — https://www.sec.gov/litigation/admin/2018/34-84553.pdf
· **Type** settled §21C order · **Date** 8 Nov 2018 · **Status** final, consented, unappealed; findings "not binding on any other person or entity" · `[CARRIED FROM P6 — S7 entry B1; RE-FETCHED AND EXPANDED 5 Sept 2026]`
· **Verbatim, ord. ¶28 (heading: "B. Coburn Caused EtherDelta to Violate Section 5 of the Exchange Act"):** "During the relevant period, **Coburn founded EtherDelta, wrote and deployed the EtherDelta smart contract to the Ethereum Blockchain, and exercised complete and sole control over EtherDelta's operations**, including over the operations constituting the violations described above. **Coburn should have known that his actions would contribute to EtherDelta's violations and thus, under Exchange Act Section 21C(a), caused EtherDelta to violate Section 5 of the Exchange Act.**"
· **Verbatim, ord. at 5 n.8:** "At all times during the Relevant Period, **Coburn was the only person with access to that private key** and therefore, was the only person that had the ability to alter the EtherDelta smart contract."
· **NEW observation not in P6, and it answers the question *KPMG* left open.** **EtherDelta was never a respondent.** The caption names Coburn alone. The Commission entered a causing order against the secondary party **without ever charging, sanctioning, or even proceeding against the primary violator.** This is direct evidence of Commission practice: the "cause" route can be run against the Company **whether or not the counterparty is ever charged.**
· **Undercuts** · **Relevance 5**
· **Application note:** the Company cannot wait to see whether the counterparty is charged. Its own exposure does not depend on that.

#### E · The cases the commission names

**E1. *In the Matter of Ranieri Partners LLC and Donald W. Phillips*, Exchange Act Rel. No. 69091, Advisers Act Rel. No. 3563, Admin. Proc. File No. 3-15234** — https://www.sec.gov/litigation/admin/2013/34-69091.pdf
· **Type** settled administrative + cease-and-desist order · **Date** 8 Mar 2013 · **Status** final, consented, unappealed; findings "not binding on any other person or entity in this or any other proceeding" (ord. at 2 n.1) · `[CARRIED FROM P6 — S7 entry A1; MATERIALLY EXPANDED]`
· **Charging instruments, ord. §I (at 1):** §21C of the Exchange Act against **both** respondents; Advisers Act **§203(f)** against Phillips only. **No failure-to-supervise charge. Neither §15(b)(4)(E) nor §203(e)(6) appears anywhere in the order.** `[CARRIED — P6's correction stands]`
· **The §203(f) predicate, ord. ¶2 (at 2):** "**At the time of the conduct at issue, Phillips also was a managing member of a Chicago-based registered investment adviser.**" `[CARRIED]`
· **What the firm and the individual actually did — verbatim:**
  - **Retention.** ¶5: "In February 2008, **Phillips caused an affiliate of Ranieri Partners to retain Stephens as an independent consultant to find potential investors** for Selene I. At the time, **Phillips was generally aware of Stephens' prior disciplinary history with the Commission.**"
  - **Transaction-based compensation.** ¶6: "**Ranieri Partners agreed to pay Stephens a fee equal to 1% of all capital commitments made to the Selene Funds by investors introduced by Stephens.**" ¶16: "investors introduced to Ranieri Partners by Stephens and/or his subagent committed $569 million to funds managed by Ranieri Partners, **earning Stephens $3.772 million in fees. Ranieri Partners paid Stephens $2.4 million of the fees he earned.**"
  - **Supplying the key documents.** ¶8: "**Phillips and other Ranieri Partners personnel provided Stephens with materials relating to the Selene Funds.** … On March 1, 2008, **Ranieri Partners personnel provided Stephens with a copy of the Selene I PPM** and, subsequently, provided Stephens with supplemental PPMs, subscription documents, and presentation materials."
  - **Failure to limit access.** ¶18: "Ranieri Partners failed to adequately oversee Stephens' activities. Although Stephens was not permitted to send documents like PPMs and subscription agreements to potential investors, **he was able to obtain such documents from Ranieri Partners, as Ranieri Partners failed to limit Stephens' access to key documents.** … **Yet Ranieri Partners did nothing to monitor or limit Stephens' contact with investors.**"
  - **Knew and did nothing.** ¶20: "Phillips assisted Stephens' in his solicitation efforts by providing Stephens with key fund documents and information. Phillips also failed to limit Stephens' activities despite knowing that Stephens was supposed to play a limited role in introducing potential investors. Further, **Phillips eventually became aware that Stephens was having substantive communications with potential investors, yet he still failed to do anything to curb Stephens' activities.**"
  - **Findings.** ¶21: "As a result of the conduct described above, **Ranieri Partners caused Stephens' violations of Section 15(a)** of the Exchange Act…" ¶22: "**Phillips willfully aided and abetted and caused Stephens' violations of Section 15(a)** of the Exchange Act."
· **NEW and decisive for question 5 of the commission — the written contractual limitation, and its fate.** The order records that the arrangement was papered, by counsel, with an express limitation of the counterparty's role, and that the counterparty was expressly instructed not to do the thing that made him a broker:
  - **ord. at 3 n.2:** "**In both instances, the terms of Stephens' engagement were reflected in consulting services agreements prepared by outside counsel to Ranieri Partners.**"
  - **ord. ¶7:** "According to Phillips, **he informed Stephens that Stephens' activities on behalf of Ranieri Partners were limited to contacting potential investors to arrange meetings for the principals of Ranieri Partners and that he specifically informed Stephens that he was not permitted to provide PPMs directly to potential investors.** Ranieri Partners controlled the distribution of PPMs for the Selene Funds. According to Phillips, **he also informed Stephens that Stephens was not permitted to contact investors directly to discuss his views of the merits and strategies of the Selene Funds.**"
  - **And the Commission held both respondents liable anyway** — because the paper was not matched by conduct (¶18: "failed to limit Stephens' access"; "did nothing to monitor or limit").
· **The Company's structural position is Ranieri Partners', not Phillips'.** Ranieri Partners was a **holding company** (¶1), **not registered** with the Commission at the relevant time (RRIA registered only on 26 March 2012, after the conduct). It was reached under §21C with **no registration, no association, and no supervisory relationship** to the violator. Only the §203(f) *sanction* against Phillips needed a registration hook.
· **What was credited, ¶19 — and note what form it took:** "Since the conduct in question, **Ranieri Partners has modified its policies and procedures to provide that it would not retain a third party, including a finder or marketer, that was not a broker or dealer or registered representative of a broker or dealer** to market or place any security or investment in any security of any affiliate of Ranieri Partners. … **The Commission considered the remedial efforts undertaken by Ranieri Partners in determining to accept Ranieri Partners' Offer.**" This is a **mitigation** credit at the settlement stage, not an exculpatory doctrine — and the step credited was a **flat bar on transacting with unregistered third parties at all**, not a contractual limitation on what they may do.
· **Sanctions:** Ranieri Partners — cease and desist. Phillips — cease and desist; "**suspended from association in a supervisory capacity**" for nine months (ord. §IV.B.2); $75,000 civil penalty.
· **Undercuts** · **Relevance 5**

**E2. *In the Matter of William M. Stephens*, Exchange Act Rel. No. 69090, ICA Rel. No. 30417, Admin. Proc. File No. 3-15233 (8 Mar 2013)** — https://www.sec.gov/litigation/admin/2013/34-69090.pdf
· `[CARRIED FROM P6 — S7 entry A2]` · **Verbatim ¶18:** "As a result of the conduct described above, Stephens willfully violated Section 15(a) of the Exchange Act, which requires **persons engaged in the business of effecting transactions in securities** to be registered as a broker or dealer or associated with a registered broker or dealer."
· **Establishes** the single primary violation from which both Ranieri orders derive. **Relevance 3.**

**E3. *In the Matter of Rimar Capital USA, Inc., Rimar Capital, LLC, Itai Royi Liptz, and Clifford Todd Boro*, Securities Act Rel. No. 11316; Exchange Act Rel. No. 101297; Advisers Act Rel. No. 6745; ICA Rel. No. 35357; Admin. Proc. File No. 3-22236** — https://www.sec.gov/files/litigation/admin/2024/33-11316.pdf
· **Type** settled administrative + cease-and-desist order · **Date** 10 Oct 2024 · **Status** final; subsequent releases in the same file are distribution-plan administration only (34-102531, 5 Mar 2025; 34-102667, 13 Mar 2025; 34-104963, 10 Mar 2026 proposed plan of distribution; 34-105345, 30 Apr 2026 plan of distribution) · `[NEW — *Rimar* LOCATED]`
· **THE COMMISSION'S PREMISE IS WRONG. *Rimar* is not an unregistered-adviser case and contains no aiding-and-abetting or causing finding.** It is an **AI-washing fraud** case.
  - **The adviser was registered.** ord. ¶3: "**Rimar LLC is registered as an investment adviser with the State of California on June 10, 2021, and with the states of New York in 2022 and Florida in 2023.**"
  - **The charges are fraud, not registration.** ord. ¶¶24–27: Rimar USA violated Securities Act §17(a) and Exchange Act §10(b)/Rule 10b-5; **Rimar LLC willfully violated Advisers Act §§206(1) and 206(2)**; Liptz violated both sets; and ¶27: "**As a result of the conduct described above, Boro violated Sections 17(a)(2) and 17(a)(3) of the Securities Act**."
· **What *Rimar* nonetheless does establish, and it is genuinely relevant.** Boro — a **5% owner, board member and paid consultant** who was not the operator — was held **primarily liable on a negligence standard** for disseminating materials whose falsity he should have caught:
  - **ord. ¶9:** "Liptz knew or was reckless in not knowing they were misstatements given his control over the company, and **Boro should have known they were misstatements had he exercised reasonable care as a board member.**"
  - **ord. ¶7:** "**Boro relied on Liptz for the accuracy of the information that he transmitted. Boro received a monthly consulting fee during the relevant period** when he was spearheading the effort to find SAFE investors."
  - **ord. at 6 n.6:** "Violations of Sections 17(a)(2) and 17(a)(3) may rest on a finding of **simple negligence**. Aaron v. SEC, 446 U.S. 680, 697 (1980). **Proof of scienter is not required.**"
  - **Sanction:** ord. §IV.D — Boro to cease and desist; §IV.I — **$60,000 civil money penalty**.
· **Establishes** that reliance on the counterparty for the accuracy of what you pass on is **not a defence** where reasonable care would have caught it, and that a paid, non-operating, minority-stake participant is squarely reachable — but by **primary** negligence liability, not derivative liability.
· **Undercuts** · **Relevance 4**
· **Application note:** *Rimar* is authority about **the Company's own statements about the counterparty**, not about the counterparty's status. If the Company's marketing describes the counterparty's lists, methodology, or track record in terms the Company has not verified, *Rimar* is the case that reaches it — on negligence, with no scienter required.

**E4. NEGATIVE FINDING — no case was located in which a technology or platform party was charged as aider/abettor of, or as a cause of, an UNREGISTERED ADVISER'S violation.** `[NEW]`
· **What was searched, all on 5 Sept 2026.** CourtListener REST v4 search API over the full federal and state opinion corpus (`type=o`), which includes SEC district-court and appellate enforcement opinions:
  - `aiding abetting "unregistered investment adviser" "203(a)"` → COUNT **1** (*SEC v. Myers*, D. Md. 1968 — not on point)
  - `"aided and abetted" "Section 203(a)" "investment adviser"` → COUNT **2** (*Douglass v. Beakley*, N.D. Tex. 2012; *SEC v. National Executive Planners*, M.D.N.C. 1980 — the latter is A3, and the claim **failed**)
  - `"aided and abetted" "unregistered investment adviser"` → COUNT **6**, none involving a technology or platform party
  - `"aiding and abetting" "80b-3(a)"` → COUNT **1** (*Kaufman v. Magid*, D. Mass. 1982)
  - `"substantial assistance" "unregistered investment adviser"` → COUNT **2**, neither a platform
  - `"caused" "violations of Section 203(a) of the Advisers Act"` → COUNT **0**
  - `"knew or should have known would contribute" "Section 203(a)"` → COUNT **0**
  - `"failure to register as an investment adviser" "aided and abetted" technology` → COUNT **0**
  - `platform "cause of" violation "unregistered investment adviser" software vendor` → COUNT **0**
  - `technology vendor liability "investment adviser" registration "aided and abetted"` → COUNT **6**, none on point
  - `"caused" "80b-3(a)" violation software platform` → COUNT **0**
· **The absence is a finding, with one honest limit.** The nearest actual charges are: a software author who **operated** an unregistered exchange (*Coburn*, §21C, Exchange Act §5); firm principals who aided an unregistered **broker** (*Big Apple*, §20(e), §15(a)); and a holding company plus an individual who paid and supplied an unregistered **broker** (*Ranieri*, §21C). **None involves an unregistered adviser, and none involves an arm's-length technology counterparty.**
· **The limit, stated plainly:** SEC **administrative orders** are not in the CourtListener corpus, and the SEC's own Drupal listing filter `populate` was tested on 5 Sept 2026 and confirmed to search **respondent names only, not full text** — `populate=EtherDelta` returns **0 rows** while `populate=Coburn` returns **2**, and a nonsense term returns 0 (so the filter is honoured, it is simply name-scoped). **WebSearch budget for this session was exhausted (200/200) before Track 10 began**, exactly as in P6's Track 7. This is therefore a strong negative across the full federal opinion corpus and a **not-exhaustive** negative across SEC administrative orders. It should not be upgraded to "no such order exists" without a full-text enforcement sweep.

#### F · What separation has been credited, and what has been rejected

**F1. THE ADVERSE ANCHOR — *Ranieri*, ord. at 3 n.2 and ¶¶7, 18.** `[NEW — this is the "disclaimers disregarded" authority]`
· This is the sharpest material in the track and it does not require analogy. In *Ranieri* there existed: **(a) written consulting services agreements prepared by outside counsel** defining the counterparty's engagement (n.2); **(b) express instructions limiting the counterparty's role** to arranging meetings (¶7); and **(c) an express prohibition** on the counterparty doing the very acts that constituted the violation — providing PPMs and discussing merits (¶7). **All three were set aside.** The Commission's stated reason was not that the papers were shams but that **conduct did not match them**: "he was able to obtain such documents from Ranieri Partners, as **Ranieri Partners failed to limit Stephens' access** to key documents"; "**Yet Ranieri Partners did nothing to monitor or limit** Stephens' contact with investors" (¶18); "Phillips **eventually became aware** that Stephens was having substantive communications with potential investors, **yet he still failed to do anything to curb** Stephens' activities" (¶20).
· **What this establishes about written allocations generally.** A contractual characterisation of what a counterparty is engaged to do — and, by extension, of what a payment is *for* — **is credited only to the extent it is enforced in fact.** The Commission's test in the only order located that squarely presented the question was: did you build the mechanism that makes the paper true, and did you act on what you learned? Ranieri had the paper and lost.
· **Threat to the frozen configuration: 5.** The 20% is "expressly for the name and the member relationship — not for any list or selection." That is a written allocation of exactly the kind *Ranieri* disregarded. It will be worth what the Company's conduct makes it worth.

**F2. What separation HAS been credited — and it is not a doctrine.** `[NEW]`
· The only located instance of separation being credited is *Ranieri* ¶19, and it is (i) **remedial**, adopted after the conduct; (ii) credited at the **settlement** stage ("The Commission considered the remedial efforts … in determining to accept Ranieri Partners' Offer"); and (iii) **categorical, not contractual** — a flat policy "that it would not retain a third party, including a finder or marketer, **that was not a broker or dealer or registered representative of a broker or dealer**."
· **The lesson is uncomfortable.** What the Commission credited was **not dealing with the unregistered party at all** — not a better-drafted engagement letter.

**F3. NEGATIVE FINDING — no authority credits "not hosting" or "not transmitting" the counterparty's content.** `[NEW]`
· No primary source located addresses whether a party that neither mirrors, caches, relays nor re-serves a third party's securities list is thereby outside §21C causing or §209(f)/(d) aiding and abetting.
· **The nearest structural signal, and it is indirect.** In *Coburn* the Commission's recitation of the causing element stacks four facts — "founded …, wrote and deployed …, **and exercised complete and sole control over EtherDelta's operations**" (¶28) — and separately recites exclusive private-key custody as the control marker (at 5 n.8). The Commission evidently felt it needed **operational control**, not mere authorship or distribution; Coburn's publication of the code on a public repository (ord. at 4 n.7) is nowhere charged. That supports an inference that **absence of control over the artefact matters** — but it is an inference from what the Commission chose to plead, **not a holding**, and no order says "we did not charge X because X did not host the content."
· **Against it stands *Apuzzo*, 689 F.3d at 213**: the SEC "is not required to plead or prove that an aider and abettor **proximately caused** the primary securities law violation." Not being in the data path is a causation argument, and causation has been expressly held not to be the test.
· **Relevance 5 as a negative finding.** The direct-fetch architecture is engineering prudence with no authority behind it. It should not be presented to counsel as legally load-bearing.

**F4. NEGATIVE FINDING — no authority credits "no revenue tied to the counterparty's activity."** `[NEW; consistent with P6 S5 A16]`
· Nothing located holds that a payer escapes derivative liability because its payment is not keyed to the counterparty's regulated activity.
· **The two data points that exist point the other way.** (i) *Ranieri* treated transaction-based compensation (1% of capital commitments, ¶6) as part of the conduct constituting causing — but the order never says the *absence* of such a fee would have saved anyone; Ranieri Partners' liability rested on retention, supply of documents, and failure to limit. (ii) *Benger*, 697 F. Supp. 2d at 941, treats "a **financial stake** in the fraud" as an aggravator on the knowledge element, again without the converse.
· **And IA-5653 at 122 n.404 cuts against the framing** by treating a share of general profits as indirect receipt of compensation for the specific activity.

**F5. Notice of Proposed Exemptive Order … for Certain Activities of Finders, Exchange Act Rel. No. 34-90112, File No. S7-13-20 (7 Oct 2020)** — https://www.sec.gov/files/rules/exorders/2020/34-90112.pdf
· **Type** proposed exemptive order; request for comment · **Status: NEVER ADOPTED.** ◇ The SEC comment file page for S7-13-20 (https://www.sec.gov/comments/s7-13-20/s71320.htm, fetched 5 Sept 2026) lists the matter under **"Proposed Rules"** only, with no final or adopting release. Established from the absence of an adopted release on the Commission's own comment page, **not** from an affirmative Commission withdrawal statement. `[NEW]`
· **Verbatim, at 12 (n.44 text):** "Although it is not required to establish broker status and is not in itself determinative of broker status, **the receipt of transaction-based compensation in connection with securities activities, such as solicitation of potential investors, has been considered by courts as a factor indicating that registration as a broker may be required.**"
· **Establishes** two things. (i) Transaction-based compensation is a **factor, not an element** — which cuts *for* the Company (its 20% is not transaction-based) and simultaneously confirms that **its absence proves nothing**. (ii) More importantly: **the Commission proposed a conditional structural exemption for limited intermediary activity and did not adopt it.** There is no structural safe harbour for a party in the vicinity of an unregistered intermediary.
· **Correction to P6.** P6's S7 search log records "Neovest, Rel. 34-90112" as a 404. **Rel. 34-90112 is the Finders proposal, not *Neovest*.** P6's failure to retrieve it was a mis-identified citation, not a site failure. `[SUPERSEDES the P6 S7 search-log line]`
· **Relevance 4**

#### G · Contract voidness — a route P6 did not cover

**G1. Advisers Act §215, 15 U.S.C. §80b-15** — https://www.govinfo.gov/content/pkg/USCODE-2023-title15/html/USCODE-2023-title15-chap2D-subchapII-sec80b-15.htm
· **Type** statute · **Date** enacted 22 Aug 1940, 54 Stat. 856; **never amended** · **Status** good law · `[NEW]`
· **Verbatim, §80b-15(b):** "Every contract made in violation of any provision of this subchapter and **every contract heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of any provision of this subchapter**, or any rule, regulation, or order thereunder, **shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, regulation, or order, shall have made or engaged in the performance of any such contract, and (2) as regards the rights of any person who, not being a party to such contract, shall have acquired any right thereunder with actual knowledge of the facts by reason of which the making or performance of such contract was in violation** of any such provision."
· **Verbatim, §80b-15(a):** "Any condition, stipulation, or provision **binding any person to waive compliance with any provision of this subchapter** or with any rule, regulation, or order thereunder **shall be void.**"
· **Establishes** that if the counterparty is an unregistered adviser, the revenue-share contract is exposed to voidness **as regards the counterparty's rights** — it is the counterparty that cannot enforce, not the Company. And §215(a) independently voids any contractual provision purporting to waive compliance — which is what an over-drafted "the parties agree that Party B is not an investment adviser" clause risks being read as.
· **Supports** the Company (asymmetrically) · **Relevance 4**

**G2. *Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis*, 444 U.S. 11 (1979)** — https://static.case.law/us/444/html/0011-01.html
· **Type** Supreme Court · **Date** 13 Nov 1979 · **Status** good law · `[NEW]`
· **Verbatim, 444 U.S. at 18–19:** "By declaring certain contracts void, § 215 by its terms necessarily contemplates that the issue of voidness under its criteria may be litigated somewhere. **At the very least Congress must have assumed that § 215 could be raised defensively in private litigation to preclude the enforcement of an investment advisers contract.** … For these reasons we conclude that when Congress declared in § 215 that certain contracts are void, **it intended that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract, and for restitution.**"
· **And the limit, 444 U.S. at 19:** "We view quite differently, however, the respondent's claims for damages and other monetary relief under § 206. Unlike § 215, **§ 206 simply proscribes certain conduct, and does not in terms create or alter any civil liabilities.**"
· **Establishes** a private right to rescission and restitution under §215, and no private damages action under §206.
· **Supports** · **Relevance 4**

**G3. *Regional Properties, Inc. v. Financial & Real Estate Consulting Co.*, 678 F.2d 552 (5th Cir. 1982)** — https://static.case.law/f2d/678/html/0552-01.html
· **Type** federal appellate · **Date** 3 June 1982, as amended 27 Aug 1982 · **Status** good law · `[NEW]`
· **Verbatim, 678 F.2d at 554:** "The developers discovered that the broker had never registered as a broker-dealer with the SEC and had thus violated the Securities Exchange Act in selling the partnership interests… **We hold that the developers were entitled to bring such an action and established a prima facie case for relief, but that the district court erred in failing to rule upon the broker's asserted defenses.**"
· **The defences that survive, 678 F.2d at 556:** "Financial answered these complaints by raising the affirmative defenses that the parties were **in pari delicto** and should be left as the court found them, **estoppel, waiver, laches and ratification**…"
· **Establishes**, on the near-identical Exchange Act §29(b), that the party who **paid** an unregistered intermediary may rescind and recover — but that **in pari delicto, estoppel, waiver and ratification are live defences** that must be adjudicated. The district court's finding that "**Regional did not know that Financial was not legally authorized** to act as a broker/dealer until after all the agreements had been executed" is what put Regional in the innocent-party position.
· **Supports, conditionally** · **Relevance 4**
· **Application note — this is the sharpest practical consequence of knowledge.** The Company's rescission/restitution position under §215(b) depends on its being the **innocent** party. The moment the Company knows or has reason to know the counterparty's activity may require registration and continues to pay, it moves toward *in pari delicto*, waiver and ratification — and simultaneously satisfies the knowledge element of §209(f). **The same fact — knowledge — destroys the shield and supplies the sword.**

---

### S10 adverse register

| # | Authority | Threat | Does the frozen configuration distinguish? |
|---|---|---|---|
| 1 | ***Ranieri***, ord. at 3 n.2 and ¶¶7, 18, 20 — **written engagement agreements drafted by outside counsel, plus express role limits and express prohibitions, were all disregarded** | **5** | **No.** This is the "disclaimers disregarded" case the commission asked for, and it is the same case the register already relies on. Ranieri had counsel-drafted consulting agreements that limited the counterparty's role and expressly barred him from the conduct that constituted the violation. Liability attached anyway, because the paper was not matched by mechanism or by conduct — "failed to limit access", "did nothing to monitor or limit", "became aware … yet still failed to do anything." The 20%'s express allocation to "name and member relationship, not for any list or selection" is a written characterisation of what a payment is *for*. On *Ranieri* it is worth exactly as much as the Company's conduct makes it worth: if the Company knows the counterparty curates lists with judgment, markets alongside that curation, or benefits commercially from it, the allocation is a recital contradicted by the record. **The one distinction that holds:** Ranieri **supplied the instrumentality** (the PPMs) and **paid transaction-based compensation**. The Company supplies neither — the member's own runtime fetches from the publisher's endpoint, and the 20% is flat. **The one that does not:** Ranieri Partners was an unregistered holding company with no supervisory relationship, reached under §21C on exactly the facts of "we paid them and we knew what they were doing." |
| 2 | **§203(k)(1) / §21C(a)** read with ***KPMG v. SEC***, 289 F.3d at 113, 120 — "**classic negligence language**" | **5** | **No — this is the route that bites and nothing in the architecture touches it.** No relationship element, no registration, no association, no compensation nexus, no client. Negligence only. And because §203(a) is a non-scienter offence (A1), negligence is the *whole* standard — the Company need not know the counterparty is an adviser, only that it should have known its acts would contribute. Appellate-confirmed against a party (an outside auditor) with no registration and no association. |
| 3 | ***SEC v. Apuzzo***, 689 F.3d at 206, 213 — substantial assistance is *Peoni* participation; **proximate cause expressly not required** | **5** | **No.** Every element of the configuration's separation — not hosting, not transmitting, direct fetch from the publisher's endpoint, no mirroring or caching — is a **causation** argument. *Apuzzo* holds causation is not the test, and says so precisely because otherwise "many if not most aiders and abettors would escape all liability." The test is whether the Company "associate[d] [it]self with the venture … and sought by [its] action to make it succeed." A 20% revenue share to the community owner, joint marketing, and a product built around that community's membership answer that question badly. ◇ The transfer of *Apuzzo* from §20(e) to §209(f) is textual, not held. |
| 4 | ***In re Coburn***, ord. ¶28 — **EtherDelta was never charged** | **5** | **No.** The Commission ran a §21C causing order to completion against the secondary party without ever proceeding against the primary violator. The Company's exposure does not wait on, and is not bounded by, whether the counterparty is ever charged. It also answers in practice the question *KPMG* left waived. |
| 5 | **§209(d)** — injunction against "any person [who] has aided, abetted, counseled, commanded, induced, or procured", with **no mental-state qualifier stated** and "shall be granted without bond" | **5** | **No, and this is under-appreciated.** P6 scored §209(f) as the aiding-abetting threat and noted its confinement to §209(e) penalty actions. But §209(d) is the *injunction* provision, is older, states no scienter standard on its face, and §929N did not amend it. An injunction is the outcome that would end the product. No located authority resolves what mental state §209(d) requires. |
| 6 | ***Big Apple Consulting***, 783 F.3d at 799–801 — **severe recklessness suffices**; and the §20(e) claim resolved on summary judgment was aiding and abetting an **unregistered-intermediary registration violation** | **4** | **Partly.** The distinction that holds: the aiders there were the violating firms' **own principals**, not an arm's-length counterparty. The distinction that does not: the case confirms that aiding and abetting another party's **registration** violation is a live, provable claim; that recklessness is enough; and that Congress said so deliberately (H.R. Rep. No. 111-687(I), at 80). |
| 7 | **IA-5653 at 122, nn. 403–404** — a share of an entity's profits is indirect receipt of compensation for the specific activity, and §208(d) reaches arrangements "**structured to avoid**" | **4** | **Partly, and the framing must be handled carefully.** The Commission's stated objection is to a general profit share **"without setting aside revenue"** — which is an argument that an express set-aside is what it wants, and the Company has one. But the passage also shows the Commission is willing to look through a revenue label to the activity it functionally rewards, and to invoke §208(d) against structuring. **The predicate limit is real:** the rule's payer is a registered or required-to-be-registered adviser, and the Company is neither — so this is transferable reasoning, not applicable law. |
| 8 | ***Rimar***, ord. ¶9 and at 6 n.6 — a paid, non-operating, 5% board member "**should have known** … had he exercised reasonable care", **simple negligence, no scienter** | **4** | **Distinguishes on the charge, not on the standard.** Boro was held **primarily** liable under §17(a)(2)/(3) for what he disseminated, not derivatively for anyone's status. But the shape transfers: the Commission reached a paid participant who "**relied on [the operator] for the accuracy of the information that he transmitted**" (¶7) and rejected that reliance. Anything the Company says about the counterparty's lists, method or results that it has not verified is *Rimar* exposure, and negligence is enough. |
| 9 | ***Zinn v. Parrish***, 644 F.2d at 364 — one "might have been compelled to register … **even if he limited his activities to screening the securities recommendations of others before passing them along**" if he "made a business of such activities" | **4** | **No, and it strengthens the arguendo premise.** Zinn escaped only because it was one client, incidental, and non-periodic. A **monthly** curated universe, supplied to all paying members of a community, with judgment applied, for compensation, is every fact Zinn lacked. This makes the hypothesis materially more than hypothetical, which raises the "should have known" bar for the Company under §21C. |
| 10 | **Rel. 34-90112 (Finders proposal), never adopted** | **3** | **No.** The Commission proposed and abandoned a conditional structural exemption for limited intermediary activity. There is no structural safe harbour to occupy. Its statement at 12 that transaction-based compensation "is not in itself determinative" also confirms that the Company's *flat* 20% proves nothing on its own. |
| 11 | **§208(d)** as previously read | **1** *(downgraded from P6's 5)* | **Yes — on the text.** §208(d) forbids a person doing indirectly what "it would be unlawful for **such person** to do directly." It does not reach a third party's violation. It bites only if the Company itself would be an unregistered adviser advising through the counterparty. `[SUPERSEDES P6 S7 adverse-register line 3 as to Track 10's question; P6's use of §208(d) in the individual-through-his-own-entity direction is unaffected.]` **Caveat: this reading is textual and untested — see C2, four opinions cite §80b-8, none applies subsection (d), and the exact statutory phrase returns COUNT 0.** |

---

### The deliverable — what the Company must NOT do

Split into what the authorities actually support and what is merely prudent. The distinction is load-bearing and I have kept it strict.

#### Traced to authority

1. **Do not receive, hold, or act on knowledge that the counterparty may be an unregistered adviser without doing something about it.**
 *Ranieri* ¶20 — Phillips "eventually became aware … **yet he still failed to do anything to curb**"; ¶18 — "**Yet Ranieri Partners did nothing to monitor or limit**." Awareness plus inaction was the finding, in the only located order on the point. And under *Regional Properties*, 678 F.2d at 556, the same knowledge forfeits the Company's innocent-party position for §215(b) rescission. **Knowledge without response is the worst of both worlds.**

2. **Do not supply the counterparty with the instrumentality of its activity, and do not fail to enforce whatever access limits the contract states.**
 *Ranieri* ¶¶8, 18 — the firm "**provided Stephens with materials**" and "**failed to limit Stephens' access to key documents**." This is the *Ranieri* trigger stated at its most transferable: it is not "you gave them something" but "you wrote down a limit and did not build the mechanism that makes it true." If the contract says the Company supplies no list infrastructure, the Company must in fact supply none — no staging endpoint, no formatting help, no test harness that becomes the publishing path, no template, no "just this once" hosting during an outage.

3. **Do not let the revenue-share allocation exist only on paper.**
 *Ranieri* at 3 n.2 and ¶7 — counsel-drafted agreements with express role limits and express prohibitions were disregarded because conduct did not match. IA-5653 at 122 n.404 — a share of general profits is treated as indirect receipt of compensation for the specific activity absent a genuine set-aside. **The allocation must be capable of being demonstrated**: the 20% must be computed the same way, and paid the same amount, whether or not the counterparty publishes a list in a given month. If the payment would change, or the arrangement would end, if the lists stopped, the recital is contradicted by the economics.

4. **Do not describe the arrangement — in contracts, marketing, or internal documents — as a joint venture, partnership, or shared enterprise in the counterparty's curation activity.**
 *Apuzzo*, 689 F.3d at 206 — substantial assistance is "**associat[ing] himself with the venture**, … participat[ing] in it as in something that he wishe[d] to bring about, [and] … seek[ing] by his action to make it succeed." This is a test about **characterisation and shared purpose**, and *Apuzzo* at 213 removes causation as an answer. Every word of joint-venture language is evidence on the only element the architecture cannot address.

5. **Do not make, repeat, or endorse any statement about the counterparty's lists, selection method, performance or track record that the Company has not itself verified.**
 *Rimar* ¶¶7, 9 and at 6 n.6 — "**Boro relied on [the operator] for the accuracy of the information that he transmitted**"; he "**should have known** they were misstatements had he exercised reasonable care"; §17(a)(2)/(3) "may rest on a finding of **simple negligence** … Proof of scienter is not required. *Aaron v. SEC*, 446 U.S. 680, 697 (1980)." This is **primary** liability, independent of the counterparty's status, on a negligence standard.

6. **Do not let the Company's own securities-law sophistication become the aggravator.**
 *Benger*, 697 F. Supp. 2d at 941–42 — the knowledge inference turned partly on the defendant's "**own expertise in compliance with securities laws**." The corollary of the *Camp v. Dema* sliding scale (948 F.2d at 459) is that the Company's best posture is **routine, ordinary, business-justified commercial conduct** — a brand licence and a flat revenue share look exactly like that. Elaborate bespoke structuring designed to sit just outside a line looks like the opposite, and simultaneously invites IA-5653's "structured to avoid."

7. **Do not draft the contract so that any clause purports to waive compliance with the Advisers Act, or so that the counterparty's own promises are the Company's only protection.**
 §215(a), 15 U.S.C. §80b-15(a) — "**Any condition, stipulation, or provision binding any person to waive compliance with any provision of this subchapter … shall be void.**" A representation *by* the counterparty about its own status is fine and useful; a provision that operates as a waiver, or as an agreed characterisation intended to bind a regulator, is void by statute and is *Ranieri*-style paper besides.

8. **Do not assume the counterparty must be charged first, or that not causing anything is an answer.**
 *Coburn* ¶28 with the caption — EtherDelta was never a respondent. *KPMG*, 289 F.3d at 120 — the "primary violator must be sanctioned" argument was **waived**, so it is not even available as authority. *Apuzzo* at 213 — proximate cause is not required. Three separate doors that the configuration's design assumptions leave open.

#### Prudent, but NOT supported by any located authority

I flag these explicitly because the architecture appears to treat several of them as legally load-bearing, and no primary source found makes them so.

- **Not hosting, mirroring, caching, relaying or re-serving the list.** No authority credits this. F3. The nearest signal is the Commission's evident need for **operational control** in *Coburn* (¶28: "exercised complete and sole control"; at 5 n.8: exclusive private-key custody) — an inference from pleading choices, not a holding. Good engineering; not a defence.
- **The member's runtime fetching directly from the publisher's endpoint.** Same. It is a causation argument, and *Apuzzo* at 213 says causation is not the test.
- **The one explicit member enable act.** No located authority treats a user's affirmative enablement as breaking a chain of secondary liability under §21C or §209.
- **Nothing per trade, on assets, or on performance.** Supported only weakly and asymmetrically: Rel. 34-90112 at 12 says transaction-based compensation "is **not in itself determinative** of broker status" — which cuts both ways and confirms that its absence is not determinative either. And it is a *broker*-status factor; no authority applies it to adviser status or to derivative liability.
- **"Software, never a service" marketing discipline.** No authority located in this track. (P6's Track 5 covers the solicitation residue.)
- **The 20% being flat rather than volume-linked.** No authority. F4.

---

### What the authorities say about revenue shares with a possibly unregistered party

**The direct answer: nothing. The negative finding stands, re-verified.** `[CARRIED FROM P6 — S5 entry A16; RE-RUN 5 Sept 2026]`

No primary authority — SEC release, no-action letter, Commission order, or federal opinion — addresses a compensation split in which one party supplies a brand or methodology name and the member relationship and the other supplies the technology, in a securities-adjacent product. Re-run generically on 5 Sept 2026 across the CourtListener v4 opinion corpus:
- `"revenue sharing" agreement "unregistered investment adviser" liability payer` → COUNT **0**
- `trademark license brand name "investment adviser" percentage of revenue securities list` → COUNT **1**, a Texas medical-practice case, not on point
- `"revenue sharing" "investment adviser" "202(a)(11)" compensation` (P6 formulation) → nothing new

**What the authorities do say, assembled:**

1. **Paying a revenue share has never been held, by itself, to be substantial assistance, a cause, or neither.** The question has not been presented. In *Ranieri*, payment was **transaction-based** (1% of capital commitments, ¶6; $2.4m paid of $3.772m earned, ¶16) and was recited alongside retention, supply of documents, and failure to limit — the order never isolates payment as sufficient or necessary. In *Benger*, 697 F. Supp. 2d at 941, having "a financial stake in the fraud" was an aggravator on the **knowledge** element, not an independent basis.

2. **The compensation element of adviser status is not defeated by the payment's shape, source, or label.** `[CARRIED FROM P6 S5]` IA-1092 at 10: "It is **not necessary that an adviser's compensation be paid directly by the person receiving** investment advisory services, but only that the investment adviser receive compensation **from some source** for his services." IA-6050 at 11–12 (Commission level): "the receipt of **any economic benefit** … would generally suffice … The source of an 'economic benefit' … is **not, however, limited to fees and commissions.**" A 20% share of membership revenue is comfortably within both. **But that is a question about the counterparty's status, not about the Company's exposure for it** — and P6 already established the analytic point that the compensation element is the easiest of IA-1092's three to satisfy, so it settles nothing.

3. **A general revenue share is not insulated by not being earmarked; the Commission has said the opposite.** IA-5653 at 122 n.404 — "a bonus tied to the entity's overall profits **without setting aside revenue from** testimonials and endorsements" is indirect receipt of compensation for the endorsement. The structural inference for the Company is that the **express set-aside is the right instinct** — but *Ranieri* is the answer to whether a set-aside written down and not lived out is worth anything.

4. **The Marketing Rule's architecture does not reach this arrangement, and that is itself a finding.** Rule 206(4)-1's compensated-endorsement regime presupposes that **the adviser is the payer**. Here the payer is a technology company that is not an adviser, and the payee is the party whose activity is in question. The direction is inverted, and **no primary authority addresses the inverted case.**

5. **The one concrete legal consequence that IS established is contract-side, and it runs in the Company's favour — until it knows.** Under §215(b), a contract "the performance of which involves the violation of … any provision of this subchapter" is void **as regards the rights of the violator** — i.e. the counterparty could not enforce its 20%. *Transamerica*, 444 U.S. at 18–19, makes rescission and restitution available. *Regional Properties*, 678 F.2d at 554, granted exactly that relief to the party that had **paid** an unregistered intermediary. **But** the defences of *in pari delicto*, estoppel, waiver, laches and ratification survive (678 F.2d at 556), and the district court's finding that the payer "**did not know**" until after performance is what put it in the innocent-party seat. **Knowledge is the hinge on both sides of this track**: it supplies the §209(f) scienter element and it destroys the §215(b) innocent-party position, in the same instant.

---

### Negative findings

1. ***Rimar* WAS located — and it is not what the commission assumed.** *In the Matter of Rimar Capital USA, Inc., Rimar Capital, LLC, Itai Royi Liptz, and Clifford Todd Boro*, Rel. Nos. 33-11316 / 34-101297 / IA-6745 / IC-35357, Admin. Proc. File No. 3-22236 (10 Oct 2024). It is an **AI-washing fraud** order. The adviser, Rimar LLC, was **state-registered** (California 2021, New York 2022, Florida 2023) — ord. ¶3. The charges are Securities Act §17(a), Exchange Act §10(b)/Rule 10b-5, and Advisers Act §§206(1)–(2). **There is no unregistered-adviser violation, no aiding-and-abetting finding, and no causing finding anywhere in the order.** Boro's liability is **primary** under §17(a)(2)/(3) on a simple-negligence standard. Whatever proposition *Rimar* was cited for in the source that named it, that proposition is **not supported by the order**, and any memo asserting *Rimar* as aiding-abetting-an-unregistered-adviser authority is unsupported at the primary level.

2. **No case was located in which a technology or platform party was charged as aider/abettor of, or as a cause of, an unregistered adviser's violation.** Eleven distinct CourtListener v4 queries over the full federal and state opinion corpus, listed at E4. Limits stated there: SEC administrative orders are outside that corpus; the SEC's `populate` filter is name-scoped, not full-text (verified 5 Sept 2026); WebSearch budget was exhausted (200/200) before this track began. Strong negative on the opinion corpus; **not exhaustive** on SEC administrative orders.

3. **§208(d) remains essentially unlitigated, and nothing new exists.** `"80b-8"` → 4 opinions, the same four P6 found, none applying subsection (d); the exact statutory phrase → 0. Re-run 5 Sept 2026.

4. **CORRECTION TO P6 — §208(d) does not reach a third party's violation.** The provision forbids doing indirectly what "it would be unlawful for **such person** to do directly." P6's S7 adverse register scored it a 5 against "the member's own runtime did it, not us." On Track 10's question — exposure for **the counterparty's** status — §208(d) is inapplicable on its text. Downgraded to threat 1. P6's separate use of §208(d) in the individual-acting-through-his-own-entity direction is unaffected and stands.

5. **CORRECTION TO P6 — Exchange Act Rel. No. 34-90112 is the proposed Finders exemptive order (7 Oct 2020, File No. S7-13-20), not *Neovest*.** P6's S7 search log recorded it as a *Neovest* 404. The document retrieves cleanly at https://www.sec.gov/files/rules/exorders/2020/34-90112.pdf (200, 394,459 bytes).

6. **The Finders exemption was never adopted.** ◇ Established from the SEC comment page for S7-13-20, which lists the matter under "Proposed Rules" with no adopting release, **not** from an affirmative Commission withdrawal statement.

7. **No authority credits "not hosting," "not mirroring," "not transmitting," or "no revenue tied to the counterparty's activity"** as separation from derivative liability. F3, F4. The architecture's most distinctive features are legally untested.

8. **No authority credits an express contractual allocation of a revenue share to something other than the activity in question.** The only located order that squarely presented written role limits — *Ranieri* — disregarded them where conduct did not match. F1.

9. **The relationship between §209(d) and §209(f) is unresolved.** §209(f) supplies "knowingly or recklessly" for penalty actions under §209(e); §209(d), the injunction provision, states no mental-state qualifier and was not amended by §929N. **No authority located resolves what scienter §209(d) requires.** Do not rely on either reading.

10. **Whether the primary violator must be charged before a §21C causing order issues is unresolved as a matter of holding.** *KPMG*, 289 F.3d at 120, held the argument **waived**. Commission practice answers it in the negative (*Coburn* — EtherDelta never a respondent), but practice is not precedent.

11. **◇ The transfer of *Apuzzo*'s substantial-assistance test and *Big Apple*'s recklessness holding from Exchange Act §20(e) to Advisers Act §209(f) is textual, not held.** The provisions are near-parallel post-§929N/§929O, but **no located authority applies either to §209(f).**

12. ***In re Robert M. Fuller*, Exchange Act Rel. No. 34-48406 (25 Aug 2003)** — the canonical Commission statement that negligence suffices to cause a non-scienter primary violation — **could not be retrieved.** Three URL patterns on sec.gov, all returning the 53,435-byte block page; the `commission-opinions?populate=` endpoint does not exist (also 53,427-byte block page). **Not quoted, not relied on.** The proposition is instead sourced to *KPMG v. SEC*, 289 F.3d at 113, 120, which is appellate and stronger.

13. **Access failures, reported as such — nothing below is cited or relied on.** `secsearch.sec.gov/search` returns **HTTP 202 with 0 bytes** and is unusable for programmatic full-text search. `sec.gov/litigation/admin?populate=` returns **301**; the working path is `sec.gov/enforcement-litigation/administrative-proceedings?populate=`.

14. **WebSearch budget was exhausted (200/200) before this track began**, exactly as in P6's Track 7. Every source above was reached by direct fetch of a known or derived primary-source URL, or through the CourtListener v4 search API. This limits confidence on the **breadth** of finding 2 in particular.

---

### Search log

**Method.** No product, project, methodology, person or domain names used in any search string. All SEC and govinfo fetches carried a declared User-Agent with a contact address (`LegalResearchAnalyst/1.0 (uri@permanentbeta.dk)`); response **size** was checked, not just status, because the block page is 53 KB and is served with 200 **and** 404.

| Source | Endpoint | Retrieved | Result / access note |
|---|---|---|---|
| 15 U.S.C. §80b-9 (§209) | govinfo `USCODE-2023-title15-chap2D-subchapII-sec80b-9.htm` | 5 Sep 2026 | 200, 14,728 B. §209(d), (e), (f) verbatim; amendment note "Subsec. (f). Pub. L. 111–203, §929N, added subsec. (f)." |
| 15 U.S.C. §80b-8 (§208) | same pattern, `sec80b-8` | 5 Sep 2026 | 200, 5,452 B. §208(d) verbatim; unamended since Pub. L. 86–750 §11(b) (1960). |
| 15 U.S.C. §80b-3 (§203) | same pattern, `sec80b-3` | 5 Sep 2026 | 200, 70,578 B. §203(a) and §203(k)(1) verbatim. |
| 15 U.S.C. §80b-15 (§215) | same pattern, `sec80b-15` | 5 Sep 2026 | 200, 3,202 B. §215(a) and (b) verbatim. |
| 15 U.S.C. §78u-3 (§21C) | govinfo `USCODE-2023-title15-chap2B-sec78u-3.htm` | 5 Sep 2026 | 200, 14,655 B. §21C(a) word-identical to §203(k)(1) in the operative clause. |
| SEC admin proceedings listing | `sec.gov/enforcement-litigation/administrative-proceedings?populate=Rimar` | 5 Sep 2026 | 200, 83,848 B. **Located *Rimar*, 10 Oct 2024, Rel. 33-11316 / 34-101297 / IA-6745 / IC-35357, File 3-22236.** Note `sec.gov/litigation/admin?populate=` → **301**. |
| **`populate` filter semantics — tested** | `?populate=EtherDelta` vs `?populate=Coburn` vs nonsense term | 5 Sep 2026 | **EtherDelta = 0 rows; Coburn = 2 rows; nonsense = 0 rows.** The filter **is** honoured (no silent-ignore) but is **respondent-name-scoped, not full-text.** This forecloses full-text enforcement search without WebSearch. |
| *Rimar* order | `sec.gov/files/litigation/admin/2024/33-11316.pdf` | 5 Sep 2026 | 200, 191,248 B, 10 pp., `pdftotext -layout`. |
| *Ranieri/Phillips* order | `sec.gov/litigation/admin/2013/34-69091.pdf` | 5 Sep 2026 | 200, 48,484 B, 8 pp. **New material at 3 n.2 and ¶7 (counsel-drafted agreements; express role limits).** |
| *Coburn* order | `sec.gov/litigation/admin/2018/34-84553.pdf` | 5 Sep 2026 | 200, 268,649 B. ¶28 and 5 n.8 confirmed. **Caption confirms EtherDelta was never a respondent.** |
| IA-5653 (Marketing Rule) | `sec.gov/files/rules/final/2020/ia-5653.pdf` | 5 Sep 2026 | 200, 2,482,546 B. nn.403–404 text at p. 122 verified verbatim. |
| Rel. 34-90112 (Finders) | `sec.gov/files/rules/exorders/2020/34-90112.pdf` | 5 Sep 2026 | 200, 394,459 B. **Identified as the Finders proposal — corrects P6's *Neovest* mis-attribution.** |
| S7-13-20 comment file | `sec.gov/comments/s7-13-20/s71320.htm` | 5 Sep 2026 | 200, 99,001 B. Lists "Proposed Rules" only; no adopting release. ◇ |
| *SEC v. Apuzzo*, 689 F.3d 204 | `static.case.law/f3d/689/html/0204-01.html` | 5 Sep 2026 | 200, 63,896 B. Star pagination via `<a class="page-label">`. |
| *SEC v. Big Apple Consulting*, 783 F.3d 786 | `static.case.law/f3d/783/html/0786-01.html` | 5 Sep 2026 | 200, 130,376 B. |
| *KPMG, LLP v. SEC*, 289 F.3d 109 | `static.case.law/f3d/289/html/0109-01.html` | 5 Sep 2026 | 200, 86,532 B. |
| *SEC v. Benger*, 697 F. Supp. 2d 932 | `static.case.law/f-supp-2d/697/html/0932-01.html` | 5 Sep 2026 | 200, 63,089 B. |
| *SEC v. National Executive Planners*, 503 F. Supp. 1066 | `static.case.law/f-supp/503/html/1066-01.html` | 5 Sep 2026 | 200, 49,093 B. |
| *Zinn v. Parrish*, 644 F.2d 360 | `static.case.law/f2d/644/html/0360-01.html` | 5 Sep 2026 | 200, 39,899 B. |
| *Regional Properties*, 678 F.2d 552 | `static.case.law/f2d/678/html/0552-01.html` | 5 Sep 2026 | 200, 84,968 B. |
| *Transamerica (TAMA) v. Lewis*, 444 U.S. 11 | `static.case.law/us/444/html/0011-01.html` | 5 Sep 2026 | 200, 96,179 B. |
| CourtListener v4 search API | `courtlistener.com/api/rest/v4/search/?type=o` | 5 Sep 2026 | **Open to anonymous callers for `type=o`.** ~20 queries run, all listed at C2, E4 and the revenue-share section. Confirmed P6's gotcha: bare parentheses inside a quoted phrase return COUNT 0 — search `"80b-9"`, not `"80b-9(f)"`. A malformed query can return `COUNT None` rather than an error. Rate-limited; 2 s between calls. |
| *In re Robert M. Fuller*, Rel. 34-48406 | 3 sec.gov URL patterns + `commission-opinions?populate=` | 5 Sep 2026 | **All 404 / 53 KB block page. Not retrieved, not cited.** |
| `secsearch.sec.gov/search` | search.gov affiliate endpoint | 5 Sep 2026 | **HTTP 202, 0 bytes. Unusable.** |
| WebSearch | — | 5 Sep 2026 | **Budget exhausted, 200/200, before this track began.** No web searches were available. |

**Reproduction note.** `curl -A "LegalResearchAnalyst/1.0 (contact@example)"` works for sec.gov and govinfo. Check response **size**, not just status: the block page is ~53 KB and is served with both 200 and 404. `static.case.law` requires the `/html/` variant, not `/cases/*.json`, to obtain star-pagination anchors for pin-cites.