EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 25, 2022 10:45 UTC (Thu) by hummassa (subscriber, #307)
In reply to: EFF: Code, Speech, and the Tornado Cash Mixer by gfernandes
Parent article: EFF: Code, Speech, and the Tornado Cash Mixer

> I don't recall any global manhunt for the psedonymous Nakamoto.

Is it possible that it's because he wasn't ever found?

Anyway, the *fact* is that Alexey Pertsev was arrested.

> What exactly is your point here?

>> Freedom of speech is never absolute. Many crimes are pure speech. Examples include blackmail, extortion, libel, copyright infringement, and many others.

My point is that those crimes are already defined in law. And so is money laundering. But "writing a software that *may* be used to assist money laundering" isn't defined in law as a crime. Nor are "writing a software that is *mostly* used to assist money laundering" or "writing a software that *some people believe* is only used to assist money laundering".

Furthermore, it's even debatable if "writing a software that will be used *absolutely only* to assist money laundering, *provably without reasonable doubt* ..." is defined as a crime in US law (or any other jurisdiction) -- even if this would not be the case.

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 25, 2022 11:03 UTC (Thu) by Cyberax (✭ supporter ✭, #52523) [Link] (6 responses)

> But "writing a software that *may* be used to assist money laundering" isn't defined in law as a crime.

Yes it is: 18 U.S. Code § 1956, section (3)(B) - https://www.law.cornell.edu/uscode/text/18/1956

It's also not limited to mere money laundering. If you are making and providing tools that you know are used to commit crimes, you can be held liable. There are cases when people who make secret compartments in cars were imprisoned because these compartments are used to traffic drugs.

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 25, 2022 11:24 UTC (Thu) by hummassa (subscriber, #307) [Link] (5 responses)

Here is the law you cited:

> (3) Whoever, with the intent—
[...]
> (B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity
[...]
> conducts or attempts to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, shall be fined under this title or imprisoned for not more than 20 years, or both. For purposes of this paragraph and paragraph (2), the term “represented” means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section.

The key words here are

"conducts or attempts to conduct a financial transaction involving [...] property used to conduct or facilitate"

Writing the software isn't covered; even distributing the software as free software isn't covered. The only thing that would be covered would be *selling* such software.

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 25, 2022 11:33 UTC (Thu) by hummassa (subscriber, #307) [Link] (4 responses)

The people who were arrested for "making secret compartment in cars" were probably charging for that, or profiting in some way, *IFF* they were arrested for that specific statute.

IANAL, but I was a prosecutor's paralegal in some point of my youth :-)

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 25, 2022 13:48 UTC (Thu) by martin.langhoff (guest, #61417) [Link] (3 responses)

You can make money writing code /for hire/. Or you can make money in the effort of making the software available – if you you've done it as part of work.

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 26, 2022 12:20 UTC (Fri) by hummassa (subscriber, #307) [Link] (2 responses)

But the text of the cited statute restricts prosecution only if you make money FROM someone that is laundering money, _in casu_.

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 26, 2022 12:37 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link] (1 responses)

If you are paid from fees that the mixer gets from the participants, then you can be liable.

EFF: Code, Speech, and the Tornado Cash Mixer

Posted Aug 26, 2022 13:08 UTC (Fri) by hummassa (subscriber, #307) [Link]

And, at this point, we are in the 9th level of "if"s, none of which applies -- in principle, unless proven otherwise -- to Mr. Pertsev.