SEC Commissioners Disagree on Crypto Custody Rules for Registered Advisers and Funds

A sharp divide among SEC commissioners is reshaping the crypto custody debate, as Hester Peirce backs new flexibility while Caroline Crenshaw warns of weakened investor protections.

New SEC Guidance Spurs Debate on Crypto Custody, Investor Protection, and Oversight

U.S. Securities and Exchange Commission (SEC) commissioners issued opposing views last week regarding a new no-action letter from the agency’s Division of Investment Management permitting registered investment advisers and regulated funds to hold crypto assets with certain state-chartered trust companies. The staff guidance clarifies how existing custody rules under the Investment Advisers Act of 1940 and the Investment Company Act of 1940 apply to crypto holdings, signaling a potential shift in the treatment of digital asset custodians under federal securities law.

Commissioner Hester M. Peirce endorsed the decision, describing it as a pragmatic and overdue clarification for an industry operating in uncertainty. She stated:

The staff NAL is an encouraging development for registered advisers and regulated funds that invest or want to invest in crypto assets.

Peirce emphasized that the no-action letter (NAL) does not expand the definition of permissible custodians but reaffirms that state trust companies, when operating within robust regulatory frameworks, can serve that role. She further noted: “Registered advisers and regulated funds may maintain crypto assets with other permissible custodians without regard to the NAL, including national banks and State banks.”

In her view, the staff action restores regulatory coherence for firms that had been constrained by ambiguity about whether state-chartered custodians qualify under federal law. Peirce argued that the decision supports investor protection while recognizing the practical realities of the crypto market and urged the SEC to continue refining custody rules through more modern, principles-based approaches.

Commissioner Caroline A. Crenshaw, however, denounced the staff’s move as an overreach that weakens vital investor safeguards. She warned:

I am struck that we are eroding our rules to pave the way for a new class of custodians who seem readily to admit they do not meet the current standards of our custody regime.

“Today’s no-action position lacks factual support in key areas and provides scant legal justification for poking holes in core statutory protections,” Crenshaw added. She contended that state trust companies operate under inconsistent and often less rigorous oversight compared with federally chartered banks, leaving investors exposed to unnecessary risk.

Crenshaw also criticized the SEC for bypassing a formal rulemaking process, arguing that a change of this magnitude should involve public comment and economic analysis. Supporters of the no-action letter, meanwhile, say the move promotes competition among custodians, advances regulatory clarity, and represents a step toward integrating digital assets within existing securities frameworks.