- Jesse Powell has called the Tornado Cash ban “unconstitutional”
- Powell said that people have a “right to financial privacy”
- Computer code is protected under the First Amendment
Kraken CEO Jesse Powell has said that the sanctioning of Tornado Cash is “unconstitutional”, and suggested that it will not survive a legal challenge. Powell was speaking to Bloomberg this week when he commented on the decision by the Treasury’s Office of Foreign Assets Control (OFAC) to prohibit Americans from using the service, saying that it prevented law-abiding citizens from being able to conduct their financial affairs in private. CoinCenter has already said it is considering a legal challenge, saying that the censoring of computer code is a breach of First Amendment rights.
Computer Code is a First Amendment Right
The backlash to OFAC’s censoring of Tornado Cash has been almost unprecedented, and will certainly have come as a surprise to OFAC. At the heart of the matter is the issue of freedom of speech. Maths professor Daniel Bernstein ensured that Bitcoin’s code will forever be free from being taken down by government agencies when in 2002 he defeated a government attempt to ban some encryption code he’d made, with the Ninth Circuit Court confirming that computer code is protected under First Amendment rights.
This has come to the fore with the Tornado Cash action, with Powell telling Bloomberg that “People have a right to financial privacy”, and referred to the decision to take the code off Github as “mostly a knee jerk” reaction by the developers. Powell added, “We’ll see if it survives a challenge” in court, referring to the statement from Coin Center’s Jerry Brito and Peter van Valkenburgh suggesting that they might mount a legal challenge.
Mixing Services Are Not Illegal to Use
In general, using mixing services is not illegal in the U.S., why there has been so much outcry over Tornado Cash. Circle’s Chief Strategy Officer and Head of Global Policy Dante Disparte opined that the move to ban everyone, including non-criminals, from using Tornado Cash was “tantamount to banning email or the open internet, because for all the good it brings, it also harbors bad actions, bad actors and negative externalities.”
