Crypto advocacy group Coin Center has criticized the latest indictment of two former Tornado Cash developers, arguing that the facts offered don’t show any clear violations of money-transmitting-related offenses.
Roman Storm and Romen Semenov were indicted by the United States Office of Foreign Asset Control (OFAC) on Aug. 23 for conspiring to operate an unlicensed money-transmitting business, among other charges.
In a follow-up opinion piece, Coin Center research director Peter Van Valkenburgh argues that the claims in the indictment appear to run counter to guidance from the U.S. Financial Crimes Enforcement Network — arguing that Tornado Cash only provides the software to transmit money, rather than transmitting the money itself.
New Tornado Cash indictments seem to run counter to FinCEN guidance
Coin Center’s initial thoughts on a case that could potentially criminalize the publication of software codehttps://t.co/YCBv3vsZAE
“The only thing the indictment claims regarding the defendants’ unlicensed money transmission is that they ‘engaged in the business of transferring funds on behalf of the public’ and did so without registering with FinCEN,” wrote Valkenburgh.
But does the indictment state any facts that actually show that the defendants engaged in any activities that qualify as money transmission under the relevant law?
He pointed to an interpretation by FinCEN as to what constitutes “money transmission services” under the U.S. Bank Secrecy Act, which states:
An excerpt from FinCEN’s Virtual Currency Guidance from 2019. Source: FinCEN.
Valkenburgh then referred to another excerpt stating that only people using the software can be considered money transmitters:
“[A] person that utilizes the software to anonymize the person’s own transactions will be either a user or a money transmitter, depending on the purpose of each transaction.”
While Valkenburgh said that Tornado Cash made it easier for individuals to use the protocol’s smart contracts to transmit money, he argued it doesn’t mean that the developers were money transmitters themselves.
“[But] that doesn’t somehow mean that they became transmitters merely because they provided tools that others used to transmit their own money,” Valkenburgh explained.
Valkenburgh also criticized claims in the indictment suggesting that Storm and Semenov had complete control over the protocol’s smart contracts.
“Ethereum smart contracts are variable and sometimes people have no control over their operation, some control, or total control. This is the key fact needed to determine whether one is performing money transmission, he argued.
Coin Center first voiced its opposition toward the U.S. Treasury in October when it sued the agency for its unprecedented and unlawful sanctioning of Tornado Cash.
The OFAC indictment claims Storm and Semenov ran an unlicensed money transmission service by engaging in the business of transferring funds on behalf of the public. The enforcement agency claimed the developers should have registered with FinCEN.
Semenov was added to OFAC’s list of Specially Designated Nationals and Blocked Persons on Aug. 23, while Storm was arrested by the Federal Bureau of Investigation in Washington state on the same day.
Valkenburgh believes the outcome of the Tornado Cash saga will have a profound impact on the legal rights of United States citizens to build and publish software in the future.
Ms Sultana also said she was “resigning” from the Labour Party after 14 years.
She was suspended as a Labour MP shortly after they came to power last summer for voting against the government maintaining the two-child benefit cap.
Several others from the left of the party, including Mr Corbyn, were also suspended for voting against the government, and also remained as independent MPs.
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However, Ms Sultana was still a member of the Labour Party – until now.
Mr Corbyn has previously said the independent MPs who were suspended from Labour would “come together” to provide an “alternative.
The other four are: Iqbal Mohamed, Shockat Adam, Ayoub Khan and Adnan Hussain.
Mr Corbyn and the other four independents have not said if they are part of the new party Ms Sultana announced.
In her announcement, Ms Sultana said she would vote to abolish the two-child benefit cap again and also voted against scrapping the winter fuel payment for most pensioners.
Ms Sultana also voted against the government’s welfare bill this week, which was heavily watered down as Sir Keir Starmer tried to prevent a major rebellion from his own MPs.
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Protesters block Israeli arms manufacturer in Bristol
On Wednesday, Ms Sultana spoke passionately against Palestine Action being proscribed as a terror organisation – but MPs eventually voted for it to be.
She said to proscribe it is “a deliberate distortion of the law to chill dissent, criminalise solidarity and suppress the truth”.
Ms Sultana said they were founding the new party because “Westminster is broken but the real crisis is deeper – just 50 families now own more wealth than half the UK population”.
She called Reform leader Nigel Farage “a billionaire-backed grifter” leading the polls “because Labour has completely failed to improve people’s lives.
Image: Ms Sultana called Nigel Farage a ‘billionaire-backed grifter’. Pic: PA
The MP, who has spoken passionately about Gaza, added: “Across the political establishment, from Farage to Starmer, they smear people of conscience trying to stop a genocide in Gaza as terrorists.
“But the truth is clear: this government is an active participant in genocide. And the British people oppose it.
“We are not going to take this anymore.”
A Labour Party spokesperson said: “In just 12 months, this Labour government has boosted wages, delivered an extra four million NHS appointments, opened 750 free breakfast clubs, secured three trade deals and four interest rate cuts lowering mortgage payments for millions.
“Only Labour can deliver the change needed to renew Britain.”