OFAC’s decision to sanction Tornado Cash is unprecedented, marking the first time software has been targeted for sanctions. BlockchainAssn’s MTCoppel explains why sanctions on the protocol has far-reaching implications for the rights of Americans.
The Office of Foreign Assets Control’s decision last year to impose sanctions on the Tornado Cash software protocol has far-reaching implications for the rights of Americans and raises serious regulatory and constitutional questions. Six individuals who fell victim to OFAC’s actions are fighting for their rights in Van Loon v. U.S. Department of the Treasury.
While transactions on blockchains are publicly viewable, the user's identity is not identified as transactions are linked to"public keys," which is similar to an email address. An individual’s desire to keep their transactions away from public view is more than reasonable given how much information our blockchain transaction history can share about our lives.
OFAC's decision to sanction Tornado Cash is unprecedented, marking the first time that software has been targeted for sanctions. OFAC’s sanctioning authority extends only to persons or property. Yet, Tornado Cash is neither a person nor property: It is owned by nobody, controlled by nobody and functions automatically without human intervention.OFAC's actions also represent an expansion of their authority that can only be authorized by Congress.
Regarding the Fifth Amendment, OFAC’s actions deprive plaintiffs of their property without the due process of law required by the U.S. Constitution and history of case law. Because of these constitutional concerns, the court must interpret any ambiguity in OFAC’s sanctioning authority in a manner that avoids harming plaintiffs’ constitutional rights.
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