Closing a gap in the SEC's new crypto framework

On May 11 2026, Consensys filed a comment with the SEC on its recent interpretive release on crypto assets. The release and an accompanying staff statement clarify when crypto transactions involve securities and when they do not. But they might be interpreted as creating an unintentional gap that could put self-custodial wallet providers like MetaMask in a difficult position. Our letter asks the Commission to close that gap with a targeted safe harbor or other exemptive relief, so US users keep access to the open, neutral, self-custodial tools that define the peer-to-peer blockchain economy.

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The Release sets out a useful taxonomy. Most crypto assets are not themselves securities. An investment contract may nonetheless form when an issuer offers a non-security crypto asset alongside promises of ongoing managerial efforts. The Release further takes the position that this investment contract can "attach" to the crypto asset and persist across later secondary market transactions, until the issuer's promises are fulfilled or publicly abandoned, at which point the contract "separates."

The SEC's Division of Trading and Markets followed with a Staff Statement on broker-dealer registration for self-custodial, user-directed crypto interfaces used for transactions in crypto asset securities. The Staff Statement confirms that a neutral interface should not have to register as a broker-dealer when used for self-directed transactions in crypto asset securities. We support that approach.

The problem lies between the two documents. The Release creates the category of non-security crypto asset to which an investment contract has attached but not yet separated. Transactions in those assets are treated as securities transactions even though the asset itself is not a security, and the Staff Statement does not address how the SEC views self-custodial interfaces that consumers use to transact in them.

That gap obviously matters for self-custodial interfaces. The facts that determine attachment, including issuer statements across white papers, social media, governance forums, and community updates, are issuer-side facts. An interface provider has no practical means to discover, verify, or continuously monitor them across hundreds of thousands of assets, and the underlying case law remains unsettled.

Faced with that uncertainty, US interface providers could be left with two unworkable choices, namely treating all non-security crypto activity as if it involved tokenized securities, or whitelisting only a narrow set of assets they can confidently classify. Either path appears to be completely unintended on the SEC’s part, and would hand the field to offshore competitors that operate without reference to US securities laws.

Our letter asks the Commission to adopt a safe harbor for providers of self-custodial, user-directed interfaces. The safe harbor would confirm that such providers do not need to register as broker-dealers solely because their interface makes discoverable or user-initiable transactions in non-security crypto assets to which an investment contract may have attached. It would apply on conditions consistent with the Staff Statement, including non-custody, no counterparty role, no discretionary routing, user-initiated and user-signed transactions, no undisclosed issuer compensation, and plain-language user disclosure.

The Commission has taken this approach before. When it has introduced novel interpretive doctrines whose strict application would impose unworkable burdens on participants Congress did not intend to reach, it has paired those doctrines with administrable safe harbors. The same approach fits here.

We remain grateful that the SEC is engaging the industry in this effort to provide a framework for blockchain to help make capital markets better.

Read our comment letter to the SEC in full.