Today on Lawfare

Today on Lawfare

By Hadley Baker
Thursday, September 29, 2022, 2:53 PM

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Tornado Cash Sanctions Are Unduly “Creative” With the First Amendment 

Evan Greer and Lia Holland argued that the Office of Foreign Assets Control’s sanction of the mixing service Tornado Cash’s autonomous code threatens free speech and privacy online and how its sanctions should be clarified.

OFAC has not yet clarified what has specifically done wrong, or what other projects need to do differently to avoid being the target of sanctions. Every open source and decentralized project runs the risk of becoming tainted by bad actors. This often happens when a developer gives up control of their code. This chilling effect could reverberate throughout the internet—that if a developer creates privacy-preserving code, the U.S. government could come after them. Without further clarification from OFAC, fewer privacy-forward projects might be built in the United States in the future, which would likely be a huge detriment to the human right to privacy online.

An Unbalanced Biography of the Espionage Act 

Gabriel Schoenfeld reviewed Ralph Engelman and Carey Shenkman’s recent book, “A Century of Repression: The Espionage Act and Freedom of the Press” which explores the Espionage Act.

It is true, to take one prominent example, that in his mega-leaking Edward Snowden brought to light what many observers judge to be an illegal National Security Agency surveillance program. But along with that contribution to the public weal, through his blanket disclosures he also exposed numerous other highly sensitive intelligence secrets for no public benefit at all, seriously undermining the efforts of the U.S. government to meet a range of dangerous threats. Taking refuge in Vladimir Putin’s Russia, Snowden, who regularly lambastes the United States from afar, has maintained a less-than-courageous silence about the Kremlin’s repression and aggression. Indeed, as the war against Ukraine rages, he has opted to take Russian citizenship. This posture hardly comports with Engelman and Shenkman’s description of him as a devoted civil libertarian and “staunch patriot.” Indeed, the negative side of Snowden’s behavior is entirely absent from their book. At a bare minimum, a balanced view would begin by recognizing the serious and perhaps unresolvable tension between the necessity of protecting secrets and the imperatives of transparency, and that in cases involving self-proclaimed whistleblowers, that tension comes to the fore.

Document Digest

Katherine Pompilio shared the Justice Department’s unsealed indictment charging Russian oligarch Oleg Vladimirovich Deripaska and his associates, Natalia Mikhaylovna Bardakova and Olga Shriki, with conspiring to evade sanctions imposed on Deripaska and one of his business entities. 


The Lawfare Podcast: What Happened at the UN General Assembly Session, with Richard Gowen: Scott R. Anderson sat down with Richard Gowen, the U.N. Director for the International Crisis Group, to discuss this year’s U.N. General Assembly and how Russia’s invasion of Ukraine shaped the meetings and how it will affect the U.N. going forward.

Chatter: Hurricanes and Governmental Response with Eric Jay Dolin: As Hurricane Ian made landfall in Florida on Wednesday, David Priess spoke with author Eric Jay Dolin about the history of hurricanes, the U.S. federal government response, and viewing hurricanes and climate change as national security threats.

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