Code isn’t against the law, and Alexey Pertsev will have to be loose

The recent sentencing of Tornado Cash developer Alexey Pertsev to 64 months in prison by a Dutch court sends a chilling message to the tech community: code itself is being criminalized. This verdict not only unjustly punishes a developer for creating software but also sets a dangerous precedent that undermines innovation and stifles technological progress.

Pertsev’s conviction for money laundering, based on his creation of Tornado Cash, is deeply troubling. Tornado Cash, a privacy-focused decentralized application, does not inherently facilitate criminal activity. Like any tool, it can be misused, but holding its creator accountable for how others use it sets a concerning precedent.

In March, during Pertsev’s two-day trial, the 30-year-old Russian citizen justified his involvement with the crypto mixer by stating that its technology, particularly smart contracts, prevented him from identifying users who utilized its services to anonymize transactions. The prosecution argued this piece of code laundered billions for North Korea linked Lazarus group by facilitating the transfer of stolen funds across multiple wallets, thereby obfuscating their origins.

Pertsev argued in court that this aspect was not within his control, suggesting that penalizing him for Tornado’s clientele would be both a misinterpretation of the technology and an injustice. It would be like if Linux developers were arrested on account of open-source computers found to power Iran’s nuclear program. “I never had the desire to help or tolerate criminals in any way, I have a different mindset,” Pertsev told the court. “I hope you understand that.”

Pertsev’s case echoes previous and more pernicious instances where code has been unfairly targeted and its creators persecuted. One notable example is the case of Aaron Swartz, the brilliant programmer and an activist who tragically took his own life in 2013 after facing aggressive prosecution in the United States for his involvement in scraping and sharing academic articles online for free. The Computer Fraud and Abuse Act (CFAA), the law under which Swartz was charged, was used to penetrate the very soul of the internet: the free flow of information. 

Likewise, in the ever-evolving landscape of digital finance, Perstev’s sentencing sends a chilling signal that the brave new world of online finance is far from free. Pablito, head of security research at Blockfence, said on X that the ruling was a “sad day for privacy, crypto and open-source,” adding that “the war is not over. Privacy is a human right.” I agree.

Indeed, with the upcoming trial of Pertsev’s co-developer, Roman Storm, in the US, slated for September, this tension, with allegations of money laundering and sanctions violations hanging over him, looms large.

Beneath all of this lies a deeper, more insidious struggle: the battle for control over the very soul of the internet. Will it succumb to the stronghold of traditional banking regulations, or will it carve out its own path, free from the shackles of surveillance capitalism? 

It’s also important to note that this struggle is far from over. The founders of innovative privacy-centric platforms like Samourai Wallet and Wasabi Wallet also faced recent arrests and shutdowns, while coins offering privacy features find themselves delisted en masse. It’s a systematic dismantling of privacy tools under the guise of regulation. But as these pillars of privacy crumble, should advocates be worried? The answer is a resounding yes. For in this struggle lies not just the fate of digital finance, but the very essence of personal freedom and privacy in the digital age.

As John Perry Barlow, the veritable OG of the free and open internet, once said:

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”