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Crypto User’s First Amendment Right to Plead the Fifth

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* A video of a bearded man crooning lines of computer code with the aid of an auto-tuner has achieved minor virality online.

* The video gets to the crux of a momentous legal question hanging over the digital era: How does the First Amendment apply to computer code?

* In the song, by musician Jonathan Mann, the lyrics are lines of code from Tornado Cash, a software tool called a mixer used to obscure the provenance of crypto tokens, which the Treasury Department sanctioned last week after it was used by North Korean hackers.

* The refrain of Manns song This is illegal argues that the sanctions amount to a constitutionally dubious ban on discussing the Tornado Cash code itself.

* Its not clear that the sanctions actually outlaw reciting code, melodically or otherwise. But they do include what appears to be the first-ever ban on interacting with blockchain addresses controlled by self-executing code (sanctions normally ban transactions with accounts controlled by specific people or entities).

* And as crypto advocates mull legal challenges to the sanctions, theyre homing in on First Amendment objections.

* A showdown over the constitutionality of the sanctions would reopen decades-old questions about the legal status of code.

* In the early 90s, the Justice Department launched an investigation of a programmer who had released an encrypted messaging system, Pretty Good Privacy, under the logic that the software which had the potential to thwart U.S. spying capabilities counted as a munition, and was therefore subject to an export ban.

* The government eventually dropped the case, and in 1999, the 9th Circuit Court of Appeals ruled on First Amendment grounds in favor of another programmer, Daniel Bernstein, who challenged the application of export controls to cryptographic code.

* This week, the Electronic Frontier Foundation, which represented Bernstein in the 90s, has expressed reservations about the Tornado Cash sanctions, arguing that the government doesnt have the power to ban the dissemination of computer code.

* EFF did not immediately respond to a request to discuss its First Amendment reservations in more depth. But the crypto advocacy group Coin Center, which is considering a lawsuit over the sanctions, fleshed out its First Amendment objections in a lengthy analysis published Monday.

* The analysis argues that both the intent and the effect of the sanctions is to have a chilling effect on people exploring the very idea of cryptocurrency mixers.

* While this affects only a niche class of blockchain applications, the question of how far First Amendment protections extend to transmissions of information within blockchain systems could have more profound implications.

* Bitcoin advocates have long made the case that both Bitcoins source code and Bitcoin transactions are protected by the First Amendment.

* But what if theyre wrong, and

 

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