Does the OFAC not know that code is speech? Yesterday, we coated the EFF’s demands for clarity around the Tornado Cash scenario and the case they’re defending. Today, we’ll dig right into a easy thought, the explanation code is protected below free speech legal guidelines. As it has for many years within the US. As a bonus, we’ll add the explanations builders have to know that writing code doesn’t make you liable for what customers do with it. Technology can solely advance if this can be a assure. As it has been for many years within the US. Doesn’t the OFAC know this?

The argument is courtesy of the Electronic Frontier Foundation, by way of their “Code, Speech, and the Tornado Cash Mixer” article. All of the allegations stay true even when the OFAC gives legitimate causes for the arrest of the alleged Tornado Cash programmer. It’s nonetheless potential that the Office of Foreign Assets Control has a extra compelling case than what they’ve proven to date, as we theorized in our Crypto Reacts piece. However, code continues to be speech it doesn’t matter what.

Doesn’t The OFAC Know That Code Is Protected?

The EFF article accommodates a compelling authorized case. This is only a abstract. If you’re within the twists and turns and the precise instances on which the Electronic Frontier Foundation bases its argument, contemplate studying the unique 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 essential information. Anticipating the OFAC’s response, they are saying, “the government frequently argues that regulations like this aren’t focused on content, but function.” However, that’s not according to what the courts have stated over time. “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.”

Here, as soon as once more, the EFF asks OFAC for precision and clear data. In different phrases, “laws must be written so narrowly that they are using the least restrictive means to achieve their purposes.” That’s not an excessive amount of to ask, proper? 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 tough to exhibit, as a result of the Tornado Cash good contract will probably be eternally accessible within the Ethereum blockchain.

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ETH value chart for 08/24/2022 on Kraken | Source: ETH/USD on TradingView.com

Why We Must Protect Developers

The EFF is sympathetic to the OFAC’s normal apprehensions, however arresting an individual for writing code is properly over the road.

“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 just not an entity, it’s open-source software program. And though the contract was utilized by dangerous actors, many upstanding residents additionally used it in search of privateness. And the expectation of privateness is regular, 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 within the “constitutional right to privacy.”

And the truth that a developer was arrested in relation to this case is solely unacceptable. Even if Tornado Cash was used for nefarious functions. 

“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 sure, possibly the OFAC has a greater case and the developer is responsible of one thing else. If that’s the case, with “clarifying information and reducing the ambiguity” the OFAC would have prevented this complete scenario. 

“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 stated.

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