Author: Chief Legal Officer of Everstake, Margaret Rosenfeld
In the late 1990s, when the internet was just emerging, the pace of technological development far outstripped regulatory progress, forcing lawyers, engineers, and policymakers to learn synchronously in practice. At that time, some regulators viewed the internet as a threat, while others saw it as a challenge.
What truly brought about change were those willing to deeply understand the essence of technology. This proactive engagement—valuing technological literacy rather than fearing technology—propelled the internet from a niche novelty to a widespread social infrastructure.
Today, a similar scenario is unfolding in the crypto space. The recent statements from the U.S. Securities and Exchange Commission (SEC) regarding staking indicate that the agency is beginning to recognize the fundamental differences between network participation and securities investment.
The latest guidance released by the SEC in May 2025 regarding specific protocol staking activities publicly acknowledges for the first time that certain forms of staking may not fall under the definition of securities trading. This move sends a long-awaited clear signal to the industry: participation in blockchain consensus through non-custodial or protocol-native staking may not require compliance with securities registration obligations.
This signifies a significant shift in regulatory logic. If staking is correctly defined as participation in blockchain infrastructure rather than mere speculative investment, the U.S. is likely to align with other jurisdictions that adopt more targeted regulations.
The key lies in how to apply the famous Howey test. For a long time, critics have argued that staking essentially involves "investing funds in a common enterprise with the expectation of profits derived from the efforts of others." They assume that all staking is akin to centralized yield products; however, in reality, many proof-of-stake mechanisms do not involve custody, pooled funds, or profit promises. When token holders delegate their stakes to validators, they are contributing to network security rather than signing profit contracts.
This is not merely a theoretical nuance. If protocol staking is viewed as securities trading, companies will face heavy compliance burdens, including registration, disclosure obligations, custody requirements, and anti-fraud regulations designed for traditional financial instruments.
Imposing these requirements indiscriminately on open-source blockchain infrastructure would significantly suppress validator participation and could lead to a brain drain of innovative forces. However, if a differentiated regulatory framework can be established to distinguish between non-custodial staking and custodial or pooled models, it may achieve a balance between investor protection and protocol decentralization.
Factors driving regulators to a higher level of understanding are not only rooted in legal theory but also in a deep explanation of technological principles. Efficient communication between regulators and the industry is far from simply submitting legal opinions. Engineers, developers, and infrastructure operators need to personally clarify the operational processes of validators, staking mechanisms, and the design principles of protocol layers.
When regulators, lawyers, and system builders participate together, policies can truly be rooted in a realistic understanding. The recent statements from the SEC reflect the results of this informed and collaborative effort.
This statement does not completely eliminate enforcement risks, especially for platforms that combine staking services with liquidity guarantees or profit promises. However, it has demonstrated the willingness of regulatory agencies to focus on the actual technological circumstances.
The market has reacted noticeably to this shift. It provides a more solid legal foundation for domestic developers and validators in the U.S., while also signaling to institutional participants that there is room for the development of compliance infrastructure.
Commissioner Hester Peirce has long advocated that the SEC should evaluate blockchain services based on their actual design rather than merely their superficial similarities to traditional finance. In line with this view, the latest guidance implicitly acknowledges that not all staking models involve "promoters," "issuers," or profit promises. This shift will allow developers to build systems that contribute to network security under compliance conditions without the fear of improperly triggering securities laws.
Skeptics argue that any token-based incentive mechanism is essentially a financial return. However, this view overlooks the diversity of blockchain protocols. In fact, staking rewards are often automatically released at the protocol layer and distributed based on network participation rather than being issued as free bonuses by a centralized entity. Delegators always retain control over their assets, and validators provide technical services rather than financial services. The overall economic design is more akin to system maintenance than equity investment.
This is not merely a literal difference but is at the core of the operational logic of decentralized infrastructure. If all systems are constrained by a uniform securities law framework, it is highly likely to distort incentive designs, leading to excessive regulation of developers and placing the U.S. at a disadvantage in the global competition for blockchain innovation talent.
Therefore, it is crucial that the SEC demonstrates a willingness to engage in dialogue rather than making unilateral decisions.
Quality regulation does not always mean enacting entirely new laws; it should be based on a thorough understanding of technology and a reinterpretation of existing legal frameworks. This includes recognizing that certain activities—such as non-custodial staking—may not constitute securities trading, even if they superficially appear to be financial operations.
The SEC's latest statement is not a one-time "safe harbor," but it does indicate that substantive technology-based dialogue is underway, and that institutions are likely to continue distinguishing between infrastructure services and investment activities. This is not only beneficial for policy improvement but is also key to fostering innovation.
Just as in the internet era, the cryptocurrency industry will move from the margins to the mainstream, ultimately achieving widespread adoption—provided that regulators genuinely take the time to understand the actual operations of blockchain systems. The SEC's actions regarding staking demonstrate the potential for such understanding and collaboration. If the industry continues to proactively engage in dialogue with policymakers—not only through legal arguments but also through practical technical education—there is reason to believe that more positive developments will follow in the future.
Viewpoint author: Chief Legal Officer of Everstake, Margaret Rosenfeld
Related: The Wave of Real-World Asset Tokenization (RWA): From Stablecoins to Private Equity, Reshaping the Financial Landscape
This article is for general reference only and should not be considered legal or investment advice. The views, thoughts, and opinions expressed in the article are solely those of the author and do not necessarily reflect or represent the views and opinions of Cointelegraph.
Original article: “The SEC's Policy Shift on Staking Guidance Demonstrates a Model of Technology-Friendly Regulation”
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