In a written statement dated March 20, Commissioner Caroline Crenshaw took aim at the SEC’s latest interpretation declaring that proof-of-work (PoW) mining does not constitute securities activity. Issued by staff under the direction of the acting chairman, the guidance concluded that PoW mining lacks reliance on the efforts of others, a key component of the Howey Test used to define investment contracts.
Crenshaw criticized the document as logically flawed and overly dependent on hypothetical assumptions. “The statement assumes a hypothetical situation as true—relying on its ability to read the minds of crypto miners,” she wrote. According to Crenshaw, this leads to a predetermined conclusion that miners only seek rewards, not profits based on others’ managerial efforts.
She further challenged the limited scope of the guidance, which only applies to PoW “generally” and not to all variations or specific protocols. “So this non-binding statement generally applies to mining—except when it doesn’t,” she remarked.
Buried in a footnote, Crenshaw noted, the SEC acknowledges that a proper Howey analysis must still be performed on a case-by-case basis. Key factors include how pool members are compensated, how they participate in mining pools, and what activities pool operators engage in.
Crenshaw, who previously opposed the approval of spot bitcoin ETFs in 2024, framed the mining guidance as part of a broader trend of bypassing formal rulemaking. She warned that these narrowly scoped statements could be misunderstood as sweeping legal conclusions.
“Beware of any headlines that herald a wholesale exemption for mining,” Crenshaw cautioned. “And mine the fine print.”
She concluded by urging market participants and the public not to mistake the SEC’s latest statement as a definitive legal position, emphasizing that only real-world facts and circumstances determine securities status.
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