It’s time for the EFF to speak out on the Tornado Cash situation. The OFAC sanctioning a smart contract might’ve been going too far, they stepped into the Electronic Frontier Foundation’s turf. We could summarize the EFF’s case with this sentence: “for decades, U.S. courts have recognized that code is speech.” It’s as simple as that, but the government and the Office of Foreign Assets Control don’t see it that way. In the Netherlands, they even arrested an alleged Tornado Cash developer.
Before we get into the EFF’s arguments, you should know that “the Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world.” The organization was founded in 1990, and its “mission is to ensure that technology supports freedom, justice, and innovation for all people of the world.” In the blog post titled “Code, Speech, and the Tornado Cash Mixer” the organization presents the legal case in a clear and concise way. We’ll try to simplify it even more, but if you speak legalese consider reading the original post.
The EFF starts like this:
“The U.S. Office of Foreign Assets Control (OFAC)’s placement of “Tornado Cash” as an entity on the Specially Designated Nationals (SDN) sanction list raises important questions that are being discussed around the world.”
We compiled some of those questions in our Crypto Reacts regular feature, and now it’s time for the Electronic Frontier Foundation’s formal approach.
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The EFF Asks: What Is Tornado Cash Exactly?
To summarize, OFAC included mixing service Tornado Cash in the SDN list. This is a serious measure, “once an entity is on the sanctions list, U.S. persons and businesses must stop “dealing” with them, including through transfers of money or property.” However, Tornado Cash is not an entity. It’s open-source software. Still, all US-based organizations that had some exposure to Tornado Cash dropped everything related to it like a hot potato.
“The issues EFF is most concerned about arise from speech protections for software code and how they relate to government attempts to stop illegal activity using this code.”
Besides the fact that software deployed in the Ethereum blockchain will be there forever, no matter what, there’s another problem. According to the EFF, “the OFAC listing is ambiguous” and “Tornado Cash” could refer to several different things, creating ambiguity in what exactly is sanctioned.” The “several different things” Tornado Cash could refer to are:
- “Tornado Cash “Classic”
- “Tornado Cash “Nova”
- “The underlying open source project that developed and published the code on GitHub”
- “The name of this autonomous mixer software that resides as a smart contract (application) running on the Ethereum network”
- “The URL of the tornado.cash website”
- “And could be considered a name of an entity consisting of some set of people involved with the mixer.”
Is the OFAC sanctioning everything on that list?
The Professor The EFF Is Representing
At the heart of the pertinent questions, there’s an actual legal case:
“In keeping with our longstanding defense of the right to publish code, we are representing Professor Matthew Green, who teaches computer science at the Johns Hopkins Information Security Institute, including applied cryptography and anonymous cryptocurrencies.”
I’ve worked with this code as a researcher and I use it to teach my classes, so it’s important to me that it stays easily-accessible on a major site like GitHub. (This is not the only copy, in fact it’s a fork of someone else’s.)
— Matthew Green (@matthew_d_green) August 22, 2022
Professor Matthew Green “made a Github organization to republish a fork of the Tornado Cash repositories that were banned following the Treasury’s sanction order the other week.” His reasoning for doing so is this: “I’ve worked with this code as a researcher and I use it to teach my classes, so it’s important to me that it stays easily-accessible on a major site like GitHub.”
According to the EFF, “The First Amendment protects both GitHub’s right to host that code, and Professor Green’s right to publish (here republish) it on GitHub so he and others can use it for teaching, for further study, and for development of the technology.” Do they have a case? It certainly feels that way. And some clarity around the Tornado Cash sanctions wouldn’t hurt, either.
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