Archive for the ‘First Amendment’ Category
A First Amendment fight for the future of the internet – The Boston Globe
Storm was right about what it meant for him and his fellow creators of the app. That August, the US Treasury Department put Tornado Cash under harsh sanctions. Days later, officials in the Netherlands arrested codeveloper Alexey Pertsev. And a year later, the US Department of Justice indicted Storm and a third developer, Roman Semenov. They are charged with money laundering, violating US sanctions law, and operating an unlicensed money transmitter.
This May, a Dutch court found Pertsev guilty of money laundering and sentenced him to more than five years in prison. Semenov remains at large. Storms trial is scheduled to begin in September in New York. He faces up to 45 years behind bars.
Federal prosecutors say Storm helped the Lazarus Group launder money, even though they have presented no evidence he gave direct assistance. Storms defenders, who include blockchain technology advocates and the internet freedom group Electronic Frontier Foundation, say all he did was help create a software tool.
Storms lawyers say the First Amendment protects his actions, as for nearly three decades US courts have recognized software code as protected speech. At its heart, this prosecution represents an unprecedented attempt to criminalize the development of software, Storms lawyers argued in March in a motion to dismiss the indictment.
The dispute is technically and legally complex. But at its center is a long-running debate over whether software code is protected by the First Amendment. And the outcome could determine whether a new class of software is effectively off-limits for Americans.
In 1995, mathematician Daniel Bernstein sued the US Department of State. He said the government violated his First Amendment rights by requiring him to register as an arms dealer and apply for an export license before he could publish the source code for Snuffle, his encryption algorithm. A district court judge agreed with Bernstein, rejecting the governments argument that Snuffles code was conduct, not speech.
The Ninth Circuit Court of Appeals affirmed the lower courts decision in 1999. Several other lower court decisions in the late 1990s reached the same conclusion as in the Bernstein case. Judges viewed code as being like speech because it is written in a language and is a mode of communication its expressive.
But contrary to what many in the tech world seem to think, this legal matter isnt settled. In a dissent to the Ninth Circuits decision in Bernstein, Judge Thomas G. Nelson raised a compelling point: The basic function of encryption source code is to act as a method of controlling computers, he wrote. This functional aspect of encryption source code contains no expression; it is merely the tool used to build the encryption machine.
The code that runs Tornado Cash may be expressive, but it also functions. It instructs a blockchain network to anonymize cryptocurrency transactions by using advanced cryptography to untraceably transfer cryptocurrency from one software wallet to another. While the crypto is in the first wallet, it is linked to every transaction the wallet has ever participated in. In the second wallet, all that history is wiped away.
Crypto and privacy advocates are steadfast that encrypting transactions in this way has legitimate uses anonymous donations to a sensitive political cause, for instance. Like real cash, though, Tornado Cash also has illicit uses. The Lazarus Group used it to sweep away digital breadcrumbs that let investigators track criminal funds on blockchains.
What makes Tornado Cash new in the eyes of the law is that although Storm and the other developers knew the cryptocurrency thieves were using Tornado Cash, they couldnt stop the criminals. The core of the privacy tool is a set of smart contracts (a crypto term for software that runs on a blockchain) that no one, not even Tornado Cashs creators, can modify or shut down.
This is the whole point of blockchains: They operate free of the control of any single entity or person. Blockchain-based software can have built-in kill switches and ways for developers to make make upgrades, but the Tornado Cash developers chose to relinquish all control over the core application in 2020. They say their intention was to give cryptocurrency users privacy, not to help criminals.
Its really a question of whether you can be held criminally culpable for the bad things people do with the software you write, even if you didnt intend for them to do those bad things with that software, says Peter Van Valkenburgh, director of research at the policy advocacy group Coin Center, based in Washington, D.C.
In the Netherlands it appears the answer is yes, and Alexey Pertsev must spend more than five years in prison for it. The US Constitution makes Roman Storms case more complicated.
The sanctions law Storm allegedly broke is called the International Emergency Economic Powers Act (IEEPA). Passed in 1976, it gives the president powers to regulate international commerce in the name of national security. In 1988, Congress amended IEEPA to clarify that the president cannot block the international exchange of First Amendment-protected items including books, music, artwork, and other informational materials. This update became known as the Berman Amendments.
Storms defense team has argued that the Tornado Cash software qualifies as informational materials under the Berman Amendments. And even if that law doesnt protect Storm, they argue that the First Amendment does.
The government responds that much of Storms defense rests on a simplistic notion: that he should not be held criminally liable because his conduct involved computer software. That idea would have breathtakingly broad implications, prosecutors wrote in April in a filing with the court. For example, they said, it would keep the president from blocking an American bank with a foreign branch from doing business with a sanctioned person or group over banking software.
But the bank parallel doesnt work, argues Van Valkenburgh. Banks have legal relationships with their customers promises, guarantees, terms of service, etc. Those relationships are conduct (and not expressive conduct, like flag burning), he says, and the First Amendment doesnt prevent the government from regulating that conduct. The Tornado Cash developers had no such relationships with their users, Van Valkenburgh says. Crucially, they never took control of any user funds. As Van Valkenburgh sees it, the developers only conduct, in the legal sense, was publishing software without a backdoor that would let them control its use once it was out in the world.
The complexity of the Tornado Cash case makes it challenging to parse the arguments. But ultimately it is about who is responsible when a novel piece of software is used to break the law.
Therein lies the problem with the claim that code is speech.
If we assume all code is speech, any regulation of software will be vulnerable to a First Amendment challenge. Given the role that software plays in so many of our interactions today, thats not workable, says Xiangnong (George) Wang, a staff attorney at the Knight First Amendment Institute at Columbia University.
In a 2021 article in the Wisconsin Law Review, Wang argued that whether code is speech is no longer the right question for lawyers, judges, and lawmakers to consider. Its really about how its used, he says. What are the actual values at stake? Is it an attempt to participate in democratic discourse? To disseminate useful information to the public? Or is it to distribute a product? There wont always be clear-cut answers, Wang says. But as software becomes even more pervasive and complex even autonomous the public will have to decide what exactly the First Amendment should protect.
Decentralized software applications and AI make things even less clear-cut. But Storms lawyers are still betting they can lean hard into the First Amendment.
Van Valkenburghs organization, Coin Center, has argued that Storms choice to write and publish Tornado Cash is the expression of a powerful political and scientific viewpoint in and of itself. In other words, its arguing that systems like Tornado Cash should be allowed despite the governments distaste for them.
Some in the US Government may strongly have preferred that (the developers) would have published their code with a secret vulnerability or a backdoor for law enforcement, or simply not published their viewpoints at all, Coin Center said in brief supporting Storm. It added: The defendants cannot and should not be held liable for having merely published software as they saw fit.
Mike Orcutt is a founding editor at Project Glitch, a newsletter focused on the future of the internet. He was previously an editor at MIT Technology Review and The Block, a cryptocurrency news publication.
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A First Amendment fight for the future of the internet - The Boston Globe
Pushing back against the state – WORLD News Group
LINDSAY MAST, HOST: Its Thursday the 11th of July, 2024. This is WORLD Radio and we are so glad to have you along with us today. Good morning, Im Lindsay Mast.
PAUL BUTLER, HOST: And Im Paul Butler.
First up on The World and Everything in It: Religious liberties out west.
Two cases currently in federal court in the state of Oregon raise the stakes for Christians living out their faith, both in the workplace and in foster care.
Heres WORLDs Mary Reichard talking about these cases with legal reporter Steve West.
MARY REICHARD: Steve, good morning.
STEVE WEST: Good morning, Mary.
REICHARD: Steve, we talked about the story of Jessica Bates back in May 2023. Shes a widow with five children, and she wanted to adopt more children out of foster care. Bates went through the application process and underwent a home study two years ago. But the state decided she was not eligible to adopt, because she was unwilling to do the states bidding if a child expressed gender confusion.
Bates sued and Alliance Defending Freedom represents her. What has happened since filing her lawsuit last Spring?
WEST: You know, Bates wanted a court order to block the state from excluding her from the state's foster care program that's called a preliminary injunction. After all, she met all the qualifications and was willing to accept and love any child she said, as a Christian, though she could not do some of the things the state considered as support for the child, like using pronouns that didn't match the child's sex, or taking the child to a Pride Parade, or letting the child dress ss the opposite sex. Last November, a federal judge ruled against her, and then she appealed, and on Tuesday, a three judge panel of the 9th U.S. Circuit Court of Appeals heard the case,
REICHARD: And you listened to that. What were some of the highlights from oral arguments?
WEST: Well after the hearing, that outcome, the outcome of the hearing is far from clear. Circuit Judge Richard Clifton questioned what right Bates had to dictate how she would care for a foster child who is, after all, in the state's custody. At one point, he even suggested the lawsuit was contrived. Circuit Judge Michael Hawkins also didn't seem enthused about Bates position. These two judges were appointed by George W. Bush and Bill Clinton, respectively, but it was a Donald Trump appointee that really drilled down on the issues. Circuit Judge Daniel Bress peppered the state's attorney with questions about his argument that the state's policy regulated conduct, not speech, and so was not subject to the First Amendment. In this exchange, he asked about pamphlets that were provided to Bates during the foster care training she received.
BRESS: But it's I mean, reading the pamphlets, it seems sort of central, right? The pronouns, right? The use of specific pronouns, the strong suggestion to use particular flags or other kinds of things to educate and show children, examples of positive experiences of people who have, you know, similar gender and sexual identity, right? All of this is all all speech-related. It's all speech.
Bress went on to suggest that the state's policy is not neutral, but discriminates against people with Bates religious convictions. Since the state was providing guidelines for how parents should talk about gender and sexuality with foster children.
BRESS: Doesn't it seem clear that the people who are most likely to have difficulty with this policy, or people who have a certain religious viewpoint about sexual orientation?
THOENNES: I don't, I don't think I agree with that, Your Honor. But even if that's true in the abstract, as long as the rule is neutral and generally applicable, there just isn't a free exercise problem, of course, so long as we satisfy rational basis review.
BRESS: Right, but I guess it gets to the question of whether the rule is neutral, right?
REICHARD: Steve, you want to predict the outcome based on what you heard. I know it's always tricky to do that.
WEST: It is always tricky, and yet here I predict a two one ruling in favor of the state teeing the case up for a possible review by the full 9th Circuit Court of Appeals, or perhaps by the Supreme Court. Bress, who is a Trump appointee, is most likely to go with Bates, as he clearly felt that this policy fell disproportionately on religious people. I think Bates, Attorney Jonathan Scruggs really got to what's at stake in his closing remarks.
SCRUGGS: Just wrapping up Your Honor, I want to acknowledge that this is a controversial topic. There's people of good faith on both sides, but we don't have to get foster care kids caught in the middle. Oregon can comply with the Constitution, achieve its goals and allow Ms. Bates to provide a loving home for a child who desperately needs it.
REICHARD: All right, turning now to another controversial religious liberties case, what can you tell us about the youth 71 five ministries in Medford, Oregon.
WEST: This is a Christ centered youth mentoring program. It's been operating for over 60 years in Oregon. The staff mentor young people from all backgrounds and religions, providing vocational training and recreational activities, and they go to wherever the kids are, group homes, detention centers or the ministry's own centers. They also received grants from the state's Department of Education, including one in July of last year of $400,000 that's the one that three months later, the state pulled saying the ministry was disqualified because of its hiring practices, meaning the ministry's requirement that staff and volunteers sign a statement of faith. It wasn't anything new, the same language as always.
REICHARD: So the ministry takes its case to court, and a federal judge rules against it. Now its asking the 9th Circuit Court of Appeals to weigh in. Steve, what was the lower courts rationale for siding with the state?
WEST: The judge said that the denial of funding had nothing to do with the ministry's religious character, but was because it discriminates in its employment practices. The judge also rejected the ministry's religious autonomy argument. He noted that it was an affirmative defense against suit by a disgruntled church employee, not a standalone right that can be wielded against the state agency. In other words, you can use it defensively when you're sued, but not offensively when you're the one suing.
REICHARD: Steve Im curious as to how recent Supreme Court precedent affects these cases?
WEST: There's a line of cases ruled on by the Supreme Court since 2017 that hold that the government violates the Free Exercise Clause when it excludes religious persons or organizations from otherwise available public benefits because of their religious character, activity or exercise, and the court has never limited the religious autonomy doctrine. It's a rule that prevents courts from second guessing the doctrines of religious organizations or their governance, including who they can hire or fire. So you add that to the fact that this appeals court last year protected the right of a chapter of Fellowship of Christian Athletes in San Jose to require its student leaders to sign a statement of faith. So with all of that, I think there strong precedent that should help on appeal.
REICHARD: Steve West is a legal reporter for WORLD. Thanks so much for this report.
WEST: Thanks for having me, Mary.
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Pushing back against the state - WORLD News Group