Coinbase helps sue US Treasury over Tornado Cash sanctions that ensnare Americans engaging in ‘lawful activity’
- Coinbase Global helped organise the lawsuit filed in Waco, Texas, that argues the Treasury overstepped its authority and is violating constitutional rights
- On August 8, the Treasury’s Office of Foreign Assets Control barred Americans from using Tornado Cash, which makes it harder to trace cryptocurrencies
The lawsuit, filed Thursday by six individuals including two Coinbase employees, claims Treasury overstepped its authority to block financial transactions benefiting foreign terrorists. It alleges that the department, perhaps unintentionally, ensnared law-abiding Americans conducting legitimate digital commerce through a cryptocurrency service that offers enhanced privacy and security.
“None of the plaintiffs is a terrorist or a criminal,” lawyers for the Tornado Cash customers said in the complaint, filed in federal court in Waco, Texas. “None supports terrorism or illegal activity. None launders money. Each is an American who simply wants to engage in entirely lawful activity in private.”
On August 8, the Treasury’s Office of Foreign Assets Control (OFAC) accused Tornado, a service that makes it harder to trace coins, of laundering more than US$7 billion of cryptocurrencies since its creation in 2019. The agency sanctioned crypto wallets associated with Tornado Cash, as well as related code known as smart contracts.
Risk to industry
OFAC’s move is likely unprecedented and could hobble the crypto industry, which is built largely on smart contracts, said Paul Grewal, Coinbase’s chief legal officer and a former magistrate judge in the Northern District of California.
“Neutral technologies and tools are not within the sanctions law as has been written by Congress,” Grewal said in an interview. “Just because armed robbers used a highway doesn’t mean the highway should be banned. We felt compelled to act.” Coinbase is complying with the sanctions, the company said.
Neither the Treasury Department nor the Justice Department responded to requests for comment on the suit.
In his tweets and retweets, Coinbase chief executive officer Brian Armstrong had indicated his opposition to the sanctions and had hinted at legal action to come. In September, he retweeted a post by Coinbase board member Katie Haun examining possible grounds on which to fight the OFAC action, such as the Fourth Amendment, which protects people against unreasonable searches and seizures. He also tweeted that his company may consider mounting a legal challenge or exiting a business if regulators continue to push for censorship.
After the sanctions were announced, Coinbase talked to OFAC about reversing its decision, to no avail, Grewal said. It then reached out to its employees and found several who were affected by the Tornado sanctions, he said. One of them used Tornado in sending a donation to Ukraine, and now has some funds locked in the service, according to the lawsuit.
“We have no issue with the Treasury sanctioning bad actors and we take a hard stance against unlawful behaviour,” Armstrong said in a blog post. “But in this case, Treasury went much further and took the unprecedented step of sanctioning an entire technology instead of specific individuals.” He said the technology has “legitimate applications” and that “many innocent users now have their funds trapped and have lost access to a critical privacy tool”.
Coinbase believes Treasury’s action “threatens the future of decentralised finance (DeFi) and Web3 specifically,” Armstrong wrote. Web3 is a version of today’s internet built largely on crypto technology in which ownership and control are more widely distributed.
The other Coinbase employee among the plaintiffs is Nate Welch, who manages customer deposits and withdrawals in the company’s crypto wallet. Welch uses other crypto privacy tools but prefers Tornado because it has “the highest volume of users and transactions, which ensures greater anonymity by making it more difficult to trace particular ether to particular users,” according to the complaint. Ether is a digital token.
Coinbase rounded up other affected Tornado users – one of whom lives in Texas, where the lawsuit was filed – to join the complaint. Several, such as Alexander Fisher, are well known in the crypto sector, leaving them vulnerable to hackers and other threats.
Fisher, Ford Motor Co’s former corporate webcasting leader, co-wrote award-winning proof-of-concept software code using Tornado’s open-source code and now manages Ethereum-focused blockchain and decentralised application infrastructure. He said he prefers transacting digitally on Tornado because bad actors have utilised public data sources and identifying information from his Twitter account to locate his crypto wallet addresses, according to the lawsuit.
The Coinbase-sponsored challenge, which also names Treasury Secretary Janet Yellen and OFAC Director Andrea Gacki, seeks a court order permanently preventing Treasury from including Tornado Cash on its sanctioned list. The plaintiffs contend Tornado can’t be sanctioned because the agency’s Specially Designated Nationals and Blocked Persons List applies only to property or to foreign countries or foreign nationals that threaten America’s national security.
Tornado’s customers also claim the sanctions violate their First Amendment right to speak freely and donate to “important and potentially controversial political and social matters”. In addition, Treasury’s move violates the plaintiffs’ Fifth Amendment due-process rights by freezing their digital assets within Tornado Cash, according to the complaint.
The case is Joseph Van Loon et al. v. Department of the Treasury, 22-cv-920, US District Court, Western District of Texas (Waco).