The SEC’s Division of Corporation Finance has clarified that defined protocol staking on proof-of-stake networks does not constitute a securities offering under federal law.
SEC Staff Clarifies Protocol Staking Not a Security for Covered Crypto Assets on PoS Network
The U.S. Securities and Exchange Commission’s Division of Corporation Finance issued a detailed public statement on May 29, concluding that certain specifically defined protocol staking arrangements on proof-of-stake (PoS) networks do not constitute securities offerings under federal law. The statement is focused on activities involving “Covered Crypto Assets”—tokens that are intrinsic to the functioning of PoS networks and used to validate and secure blockchain operations. The Division’s conclusion is based on the application of the Howey test, which evaluates whether a transaction involves an “investment contract” and therefore qualifies as a security.
The Division’s staff explicitly stated:
It is the Division’s view that ‘Protocol Staking Activities’ … do not involve the offer and sale of securities.
The statement also affirmed that: “Accordingly, it is the Division’s view that participants in Protocol Staking Activities do not need to register with the Commission transactions under the Securities Act, or fall within one of the Securities Act’s exemptions from registration in connection with these Protocol Staking Activities.” This means that under the defined scenarios, participants are not required to register their staking activity or qualify for an exemption under the Securities Act.
“Protocol Staking Activities” are defined in the statement as including: (1) staking Covered Crypto Assets on a PoS network, (2) services provided by third parties such as node operators, validators, custodians, delegates, and nominators involved in the staking process, and (3) related ancillary services. These services may include slashing protection, early unbonding, reward scheduling flexibility, and asset aggregation. The Division found that such activities are administrative or ministerial, not entrepreneurial or managerial, and thus do not meet the final element of the Howey test, which requires profits to be derived from the efforts of others.
The Division’s guidance applies to three specific types of staking: self (or solo) staking, self-custodial staking directly with a third party, and custodial arrangements in which a third-party custodian stakes assets on behalf of the user without making discretionary decisions. The staff emphasized that their views do not extend to staking models outside this framework, such as liquid staking or restaking, or to any arrangement where a custodian determines how much or when to stake. These distinctions are critical for determining whether the securities laws apply.
While this statement reflects the staff’s views and has no legal force or effect, it provides important clarity for crypto industry participants. Skeptics of crypto regulation warn that the position may evolve, particularly if staking mechanisms become more complex or involve discretionary decision-making. However, advocates of decentralized technology welcome the SEC Division’s acknowledgment that standard protocol staking is more akin to running infrastructure than investing in a security.
