Does the OFAC not know that code is speech? Yesterday, we covered the EFF’s demands for clarity around the Tornado Cash situation and the case they’re defending. Today, we’ll dig into a simple idea, the reason code is protected under free speech laws. As it has for decades in the US. As a bonus, we’ll add the reasons developers need to know that writing code doesn’t make you responsible for what users do with it. Technology can only advance if this is a guarantee. As it has been for decades in the US. Doesn’t the OFAC know this?

The argument is courtesy of the Electronic Frontier Foundation, through their “Code, Speech, and the Tornado Cash Mixer” article. All of the allegations remain true even if the OFAC provides valid reasons for the arrest of the alleged Tornado Cash programmer. It’s still possible that the Office of Foreign Assets Control has a more compelling case than what they’ve shown so far, as we theorized in our Crypto Reacts piece. However, code is still speech no matter what.

The EFF article contains a compelling legal case. This is just a summary. If you’re interested in the twists and turns and the specific cases on which the Electronic Frontier Foundation bases its argument, consider reading the original piece. In any case, the EFF introduces its argument to the OFAC like this: 

“The creation and sharing of a computer program is protected by the First Amendment, just as is the creation and performance of a musical work, a film, or a scientific experiment. Moreover, as Junger and Bernstein acknowledged, code retains its constitutional protection even if it is executable, and thus both expressive and functional.”

Those are the basic facts. Anticipating the OFAC’s response, they say, “the government frequently argues that regulations like this aren’t focused on content, but function.” However, that’s not in line with what the courts have said over the years. “A regulation that prohibits writing or publishing code with a particular function or purpose, like encrypting communications or anonymizing individuals online, is necessarily content-based. At a minimum, it’s forbidding the sharing of information based on its topic.”

Glad to see @EFF will work with OFAC to clarify TC designation doesn’t mean it’s illegal to publish code.

Coin Center is committed to establishing that OFAC exceeded its authority by sanctioning immutable smart contracts in the first place, even if we have to take OFAC to court https://t.co/5ZmLA1m6Ow

— Jerry Brito (@jerrybrito) August 22, 2022

Here, once again, the EFF asks OFAC for precision and clear information. In other words, “laws must be written so narrowly that they are using the least restrictive means to achieve their purposes.” That’s not too much to ask, right? According to Reed v. Town of Gilbert, “the government must “demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” That’s going to be difficult to demonstrate, because the Tornado Cash smart contract will be forever accessible in the Ethereum blockchain.

The EFF is sympathetic to the OFAC’s general apprehensions, but arresting a person for writing code is well over the line.

“The government may have legitimate concerns about the scourge of ransomware and harms presented by the undemocratic regime in the Democratic People’s Republic of Korea, but the harm from fund transfers does not come from the creation, publication, and study of the Tornado Cash source code for privacy-protective technologies.”

Remember that Tornado Cash is not an entity, it’s open-source software. And even though the contract was used by bad actors, many upstanding citizens also used it looking for privacy. And the expectation of privacy is normal, as U.S. Congressman Tom Emmer said in his letter to the Secretary of the Treasury. 

“In his letter to Secretary Yellen, Emmer claims the measures adopted by the Treasury against Tornado Cash raised “new questions, which impact not only our national security but the right to privacy of every American citizen”. Emmer believes in the “constitutional right to privacy.”

And the fact that a developer was arrested in relation to this case is simply unacceptable. Even if Tornado Cash was used for nefarious purposes. 

“To ensure that developers can continue to create the software that we all rely upon, the denizens of that village must not be held responsible for any later unlawful use of the software merely because they contributed code.” 

And yes, maybe the OFAC has a better case and the developer is guilty of something else. If that’s the case, with “clarifying information and reducing the ambiguity” the OFAC would have avoided this whole situation. 

“Regardless of how one feels about cryptocurrency, mixers, or the blockchain, it’s critical that we ensure the ongoing protection of the development and publication of computer software, especially open source computer software.”

Enough said.

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