In summary
- Judge Katherine Polk Failla denied developer Roman Storm’s request to dismiss his case in the Southern District of New York.
- Storm argued that his charges infringed on his First Amendment rights, claiming that computer code is protected speech.
- Failla ruled that Storm’s case could proceed to trial, noting that the laws under which he was charged do not target protected expressive conduct.
Is the code protected speech? Not so fast, the US district judge ruled last week in the high-profile case surrounding the Ethereum coin mixer Tornado Cash.
Judge Katherine Polk Failla denied developer Roman Storm’s request to dismiss his case in the Southern District of New York last Thursday. More than a year after the Tornado Cash co-founder was arrested on money laundering charges, Failla ruled that his case could proceed to trial.
While Failla found that Storm had been properly charged, Storm argued in his motion to dismiss that his charges infringed on his First Amendment rights. He stated that it has been “well established” that computer code, like a currency mixing service, is protected speech.
“This prosecution represents an unprecedented attempt to criminalize software development,” Storm argued in his rejected motion, adding that “First Amendment protections apply to computer code and computer programs built from code.”
When the United States sanctioned Tornado Cash in August 2022, banning the tool to mask Ethereum transactions and thus make them difficult to trace, the decision was criticized by privacy advocates such as Edward Snowden. The critic warned that the measure was “deeply illiberal and deeply authoritarian.”
The government has highlighted the use of Tornado Cash by state-sponsored hackers as a threat, while Cryptocurrency advocates have rallied around Storm’s cause. However, Failla’s ruling on industry-wide concerns came down to the statutes under which Storm was charged.
“These laws do not target protected expressive conduct,” Failla said of the laws Storm allegedly violated by launching and maintaining Tornado Cash.
David Miller, a partner at Greenberg Traurig and formerly an assistant US attorney in the Southern District of New York, told Decrypt that Failla’s rejection should not come as a surprise. Only in specific circumstances are charges in an indictment dismissed, he said.
“The court determined that the use of computer code to allegedly facilitate money laundering is not an activity protected by the First Amendment,” he said. “This is in the context of a motion to dismiss an indictment, and they are rarely granted in criminal cases.”
Functional vs. expressive
The First Amendment and programmers have clashed before. Members of the cypherpunk movement, from which Bitcoin was inspired, once advocated for cryptography in the name of freedom of expression.
In an early Internet era, Blockstream CEO Adam Back’s so-called “Munitions T-Shirt” emerged as a symbol of civil disobedience, displaying lines of code once considered dangerous by the U.S. Others tattooed ammunition codes. cryptography that fell under government scrutiny directly under its own skin.
As Failla pointed out, there are cases where code is used to express a thought or idea. However, the code’s functional ability is not protected by the First Amendment, he said. As a result, the charges brought against Storm do not involve free speech protections at all.
Miller said Storm’s argument is reminiscent of free speech arguments made in material support for terrorism cases, which have been “universally rejected by the courts.” That’s because the speech was in progress of a criminal objective, he added.
“In general, it is difficult for criminal defendants to raise a First Amendment defense to an accusation,” Miller said. “The reason for that is because the criminal charges themselves are based on conduct that violates federal criminal law, meaning the conduct is not criminalized because of the speech.”
Even if Storm’s actions were considered speech, Failla said a legal test known as “intermediate scrutiny” would have been met. Because the laws under which Storm was charged do not specifically seek to regulate speech, prosecutors would only have to show that the government has a “substantial interest” in its restriction for the charges to be considered constitutional.
“The government has a substantial interest in promoting a secure financial system,” Failla said. “These interests have no bearing on the suppression of free speech, and the applicability of these laws to Mr. Storm’s conduct does not burden substantially more speech than necessary (…) because the conduct charged involves functional characteristics rather than of the expressive ones”.
‘Writing privacy code’
After Storm’s arrest last year, Snowden and others encouraged donations to aid the developer’s legal fight, a sum that has grown to $595,000 in Ethereum on the Juicebox crowdfunding protocol. Meanwhile, advocates have argued that privacy is not a crime.
During previous campaigns, millions of dollars were raised to support “the freedom to publish code without fear of government persecution,” according to Defend Roman Storm organizers. Ethereum co-founder Vitalik Buterin has also weighed in on the issue.
Earlier this year, Alexey Pertsev was sentenced to 64 months in prison by Dutch authorities, who found that the developer of Tornado Cash carried out the laundering of $1.2 billion in illicit assets. Still, support for Storm and her legal problems continues to pour in.
On Sunday, one person donated 99.5 Ethereum worth $259,000 to the aforementioned Juicebox fund. An accompanying message said: “I hope someone will help me when the government freezes my assets for writing privacy code.”
However, Judge Failla herself might not agree with the characterization of the donor.
“At this stage of the case, this court cannot simply accept Mr. Storm’s narrative that he is being prosecuted simply for writing code,” he said during last week’s decision, calling it “an exaggeration of what he was actually charged with.” charges in the indictment.”
Despite Failla’s skepticism, Miller said Storm’s attorneys could still try to make free speech arguments if the case goes to trial in early December. But whether Failla allows those arguments in front of a jury, that’s ultimately another matter, he said.
Edited by Andrew Hayward
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