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Comment by bad416f1f5a2 | Hacker News Reader

Because others are answering you in much more detail, I’ll give them more generalized answer –

This is quite simply not how a sanctions regime works. The US government does not make a list of all the sanctioned persons’ assets, then start going after those in court.

Instead, it goes the other way: any company with a US nexus watches those sanction lists carefully. When someone is listed they look at their internal records for hits and denies them service. So no one told Microsoft anything; they self-enforced a sanction that applies to everyone in the US. And I mean everyone: if an individual knowingly violates these sanctions they’re breaking federal law - it’s not just companies.

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Be that as it may, isn't this still an unacceptable collateral damage?

So when you contribute code to an open source project, you generally do so under an open source license. All of them generally contain something akin to the following:

    IN NO EVENT SHALL THE AUTHOR OR CONTRIBUTORS BE
    LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
    SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES

(this particular excerpt is from the BSD license)

I can understand taking action against the people who run the code. I can even understand taking action against people who were hired to contribute. But why kick some random open source contributor in the guts? What did they do wrong?

Are there open source licenses that protect the contributors from such unforeseeable damage? Or are we to watch our step from now on as open source contributors?

Why is it unacceptable?

The US Constitution provides protection against ex post facto laws. A retroactive punishment is unconstitutional. It may be argued that these github accounts did not belong to us citizens and thus were not protected. Or it may be argued that Microsoft was doing this of their own freewill and therefore the constitutional prohibition does not apply. But there is generally within the American psych a distaste for retroactive punishments such as this.

This is not an act of ex-post facto lawmaking by a legislature. This is the executive doing what it has been tasked with doing under a mandate supplied by Congress in accordance with it's role as laid out by the Constitution. The Courts are not likely to be swayed by this argument. I doubt the legislature will touch anything that enables money laundering with a 12 foot pole.

The novelty here is that prople are being forced to realize how destructive getting sanctioned is due to bearing witness to the power of the network effects involved. This was inevitable, no matter which way you cut it.

I was not making an argument in front of courts, I was stating why many Americans may find this action distasteful.

As far as I can tell, the executive branch was not mandated to delete anyone who contribted to/was a "member" of the github tornado dev group.

Lots of things that some find distasteful are accepted though. Recently, along a similar vein, the whole "they're private companies, they can censor who they like" crowd made that clear. Hopefully none of them will be surprised or upset by this action.

The executive was mandated to produce a list of individuals that can be consumed in oan actionable way by industry, such that it can prevent access to the U.S. financial system.

It did exactly that.

These companies got that list, their legal, risk, and compliance departments got in a huddle, and they laid out an action plan to try to get ahead of the regulatory action, while minimizing any risk of contamination or liability.

The government did not tell them to do that. Note, this is by design. The government telling them to would be unconstitutional. Rather, they acted in their own way, which to them rang as reasonable.

That is how it rolls. Is it fair? No. Is it right? Arguably not. Is it concerning? Hell yes.

It is what it is though.

Software licenses are a civil agreement between a developer and anyone who uses the code. So for instance, if someone uses code with that disclaimer, and it deletes their files, you cannot sue them for that damage.

But, you can’t just put anything in one of these agreements; the law overrides anything you might state in a contract.

Furthermore, software licenses govern the use of your code by other people. It doesn’t govern your use of the GitHub service.

Your use of GitHub is governed by the GitHub ToS. Under that agreement, they can terminate service for any reason they want. They can cancel your account if they wake up grumpy on a Tuesday and just feel like it. Or, they can terminate service because they don’t want to touch anything that might be sanctioned with a 10 foot pole.

That license binds people who use the code you wrote & protects you from their legal claims. OFAC isn’t using your code. No open source license is going to protect you from US sanctions.

From the Twitter thread it appears that the devs whose accounts were nuked were core contributors to a sanctioned entity. That feels fairly sensible & what a company who wants to comply with sanctions would do.

> What did they do wrong?

They wilfully contributed to the upkeep of a money laundering service. They should be thankful losing their GitHub account is the extent of the fallout, take it as a lesson that code can cause real harm, and act more judiciously in future when it comes to contributing labour to suspect projects.

There are so many other applications for Tornado Cash than “money laundering.” What if I don’t want my employer or friends to see what I do with my known wallet on a fully traceable public blockchain?

Privacy is not illegal.

Well, no matter what other applications for Tornado Cash may exist, since yesterday it is illegal to interact with Tornado Cash or assist them in any way for anyone within reach of USA jurisdiction. That's it.

Privacy as such is not illegal, but that does not mean that government may not prohibit certain specific ways of achieving privacy.

Yes what you are saying is true and it is our right and duty to protest that decision. When will they sanction something you do like and need like Signal or cryptography? Are they aware of all the bad that comes about via http? Or cash?

Well, the big legal limitation for these sanctions is that they apply only 'across borders' as OFAC can only sanction foreign entities (e.g. in this case asserting that TornadoCash-as-organization/project is controlled by North Korea), prohibiting U.S. citizens and companies from dealing with or assisting that foreign entity.

> OFAC can only sanction foreign entities

There are a variety of sanctions mechanisms. Tornado didn’t have to be controlled by North Korea (it isn’t), just used by them to fall afoul of U.S. law.

Turns out privacy now is illegal in the US of A.

This is breathless but misleading. With recent conservative judicial decisions the notion of general privacy is on the ropes, but KYC has always precluded financial privacy at any scale other than unstructured cash transactions, and you're still supposed to report those in your taxes. This is in line with the treatment of other entities that fail to maintain KYC compliance.

The state has the power to levy taxes and prevent transactions with entities that it considers harmful (OFAC is effectively this); this is the state taking steps to do so, while GitHub is deciding that people who are attempting to evade those laws are outside the risk profile of "who we want to provide services to".

Privacy is not illegal.

Operating an illegal money transmitter that demonstrates no capability/intent to actively filter OFAC specified sanction targets, however, is.

Everyone is free to use cash if they want to make a transaction that isn't "permanently" recorded in a distributed digital database.

I hear the US government actually supports this method.

What’s the largest cash transaction you think you could make that isn’t recorded?

When it comes to financial transactions, KYC laws mean that privacy is, in fact, illegal.

Third party doctrine is nothing new and was a direct result of money transfer becoming easier (not sending gold bars around that could be seized). https://en.wikipedia.org/wiki/United_States_v._Miller_%28197....

Cryptocurrency enthusiasts like to think that just because their transactions are done inefficiently on a blockchain, banking laws don't apply to them. Of course they apply. The only difference is their transactions are more expensive.

No, there are no other real applications for these mixers. The only reason you even need to do that on a public blockchain is because the design of them is so bad that there's no other practical way to have privacy without enabling large amounts of criminal activity. If you really care about privacy, and you don't like criminals, then just don't use any blockchains or cryptocurrency.

This is not the level of comment quality I would expect on HN. You can do better.

Sorry but I try to avoid dumping huge amounts of information on people in every comment, that often doesn't go down well either if you can imagine. If you want more I'll elaborate. There is no possible way you can deploy this service anywhere while effectively complying with AML laws. It isn't going to work. But it's also the only real effective way you can obscure the source of transactions on a blockchain that's forced to be public. There's no reason transactions need to be forced public in the first place, other than how blockchain designers insisted it was a fundamental design parameter, when you probably agree that it isn't and that some transactions should be private by default. The simple solution is to avoid all blockchains and cryptocurrency altogether. Yes, they are that bad. I wish it wasn't true and I could say something good about them, but I just can't after watching 13 years of bad things happen.

And no, things like monero and zcash aren't a working solution to this problem either, that's a whole different discussion though.

I mean, if you really think about it distributed public transaction ledgers were really primarily beneficial to those looking to actually understand more about where/how money flows. It's the classic problem of Networks. If there is enough information to ensure that something gets to one endpoint, and not others, that de facto becomes a tracking lever for surveillance and signal analysis. It's part of the package. There is no escaping it. As it giveth, so to does it take away.

Things like the Bank Secrecy Act are only there to guarantee a level of secrecy/protection from other customers. Law enforcement, government, and third party service providers are not counted there realistically. If you want financial privacy, you keep your own books. By that same token though, you don't get to act surprised when the authorities come a knocking with a warrant to crack open your books when they find out you made a poor decision of people to work/transact with.

Why is Monero not a solution either? As far as I know, it is not public which seems to be what you complain about, right?

Surely you accept that illegal trade happens through cash and even through banks, so you will agree that there is some level at which you cannot ban an entire system.

You should be able to achieve this without also enabling terrorism, child pornography and extortion. Because of this Tornado Cash was never the right solution - it requires you to permit these things just in order to have privacy. In other words it is a bullshit technology and deserves to be replaced with something better. If blockchain in turn requires a solution like Tornado Cash in order to offer any privacy, mandatorily fused with the aforementioned radioactive side effects, then blockchain itself is a bullshit technology.

Just because you find a use for a technology doesn't make the technology good. Nuclear weapons are a highly effective alternative to insect repellent, but that does not justify the general purpose use of nuclear weapons for repelling insects.

The problem with this line of reasoning is that any general purpose technology can be used for all those evil things. Hell, should we sanction the Linux kernel project, because all of those nasty people use it?

If Linux were a focal point for enabling North Korea and Iran to develop nuclear weapons, then yes, sanction the hell out of it. But sanctioning Linux would have such dramatically negative societal effects that it would outweigh any benefit - the same is not true of a mixer. Mixers in my view have absolutely no legitimate use, their exclusive purpose is the enablement of deviant behaviour in one form or another free of societal accountability, and it'd be a red flag for me just to know someone used one regardless of knowing why they used it.

It's like saying the local brothel can't be shut down because the building could potentially be used to teach the word of the lord while the employees aren't otherwise busy. The exclusive purpose of the brothel's existence is enabling trafficking and sex work, and the benefit of any potential imaginary supplementary uses are grossly outweighed by the benefit to society of closing it down.

I agree, I feel this is a bad line of argumentation. If we take it a little further it's clear that the human brain can be used for extortion, money laundering and cybercrime - and therefore it should also be placed in the same sanctionable category as all the nasty people use it.

I love how you blew through my reply from 15 minutes earlier clarifying the obvious concept of the balance of societal benefit to post a me too comment. Do better

There's a solution for that: use a regular bank account denominated in a fiat currency. Your payments will clear in a reasonable amount of time, with minimal fees, and will be private to all but the spooks[0], who don't really give a fuck about you.

[0] FBI/CIA/etc

> What did they do wrong?

The argument probably is that they assisted a sanctioned entity by providing a contribution i.e. service to it. Quoting US Treasury "These prohibitions include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person and the receipt of any contribution or provision of funds, goods, or services from any such person."

However, the major factual question is whether they did violate any sanctions since the contributions generally were made before the sanctions were in effect - it's not that Github had to do it, but that they chose to be safe rather than sorry (in order to ensure that Github themselves don't violate the sanctions) and if they aren't absolutely sure they blocked people. [edit: apparently not everyone, some contributors are not blocked, so they apparently did some review before choosing whom to block]

The key issue is that any collateral damage is considered acceptable, but any false negatives are absolutely not. If Github leaves even one actual agent of TornadoCash unblocked, Github has committed a crime, if they block a hundred unrelated accounts, that doesn't violate anything.

> Are there open source licenses that protect the contributors from such unforeseeable damage?

No, a contract or license can't absolve you from this prohibition if it applies to you.

> Or are we to watch our step from now on as open source contributors?

Yes, but not "from now on" but since before open source existed. There are entities you are not allowed to contribute to, and it's your responsibility to know and check who you are dealing with.

> The argument probably is that they assisted a sanctioned entity by providing a contribution i.e. service to it.

And what if they did so before the sanctions? Is the US so happy to retroactively punish people who literally did nothing wrong?

> people who literally did nothing wrong?

What on earth did people think a tumbler like Tornado Cash was going to be used for and by?

Not sure, thoughtcrime is a thing now in modern America?

> thoughtcrime is a thing now in modern America?

Nothing wrong with writing code. Code is speech, that's settled law. But the Tornado Cash team wasn't just publishing. They were building a tool. Semenov styled himself as a co-founder and the group advertised open positions on its website.

Okay, how does that relate to open source contributors? Can you retroactively read their minds and determine their intent? Why does their intent even matter? What they were doing was not illegal at the time, and now they are being punished by the US.

> now they are being punished by the US.

The US didn't mandate deletion of their Github account. The US isn't punishing them – you can tell because they didn't put them explicitly on the SDN list.

Microsoft made the choice to remove their accounts. Their compliance team likely looked and said "$ we make from these devs < $$$ we'd pay to our lawyers to simply decide if we should keep them on our platform."

> Why does their intent even matter?

It doesn’t. Tornado was used to launder money. That’s all that matters.

My guess is the only people in real legal jeopardy are those who kept working on it after its involvement in laundering was exposed. (I’m assuming they weren’t in on the laundering.) For GitHub, figuring out who those people are is impossible. So they’re being cautious and cutting ties more broadly.

There is a creep problem to sanctions. Some companies in Russia are banned. Suddenly everyone from Cyprus is under extra scrutiny, since you don’t want to be the dupe they used to launder their money. Tornado and its developers were those dupes. But it has been illegal to help North Koreans launder money since before Tornado was founded. It remained illegal when it became known North Korea used Tornado to launder money. Anyone going into money services knows, or is negligent in not knowing, that these laws apply to them. It’s tough to have sympathy for anyone who kept ties. Particularly when the punishment, so far, is simply ostracism.

Is that settled law? Have the anti-circumvention parts of the DMCA been struck down?

You ask this as if there are only non-legitimate uses. Do you think businesses often give away their revenue data to their competitors for free? Of course not, so if you want to do business on an open ledger then you have to have a way to obscure transactions so that your competition doesn't get to know exactly what your revenue stream looks like.

There's nothing sinister about privacy. It would be a logical fallacy to assume that just because sinister things happen in private that privacy itself is sinister.

> nothing sinister about privacy

Totally agree. One damning aspect of Tornado is we know it was used to launder money. Criminals used it. This was publicly reported and certainly known to the Tornado team.

If you know your product is being used by criminals to do crime and you respond by shrugging your shoulders, I’m not sure what the expected outcome is supposed to be other than getting dinged.

I like to ask myself what money laundering even is and whether it makes sense and ideally it wouldn't even be illegal. Money laundering isn't the crime - it's just a convenient tool to dissuade crime. Ideally there would be no crime without violence and there is nothing but consenting individuals involved in money laundering. The crime happened before the laundering and that's what we should be preventing.

Otherwise you end up in situations like this where innocent people are going to get screwed over because they utilized a tool that criminals utilized. This isn't fair or just by any standard and I personally don't accept the collateral damage as worthy.

This doesn't even begin to touch on the vast majority of laundering that happens in fiat across international banks . That would take a while just to list all the infractions that are constantly happening, yet those entities are still not only operating in the free market, but they have federal insurance and backing.

> what money laundering even is

Hiding illegal gains.

> crime happened before the laundering and that's what we should be preventing

Covering up a murder is a crime because we don’t want people helping murderers cover up.

> like this where innocent people are going to get screwed over because they utilized a tool that criminals utilized

People who used Tornado Cash aren’t getting screwed. Even the developers aren’t. They aren’t personally sanctioned. Their work, which has been used to launder money, is.

Third parties, like Microsoft, are choosing not to associate with them. (The developers who knew about the laundering, e.g. through the public announcements law enforcement made, and kept working on it are far from innocent.)

> doesn't even begin to touch on the vast majority of laundering that happens in fiat across international banks

Yes, there are other crimes.

People laundering money through banks get sanctioned and jailed. When banks make a habit of laundering money, they too get sanctioned. There is ample historical record of all of this.

> People who used Tornado Cash aren’t getting screwed.

Incorrect, as per sanctions putting the onus on private entities to get things right, circle has blacklisted any USDC address that has been owned by the tornado cash protocol, which means anyone using tornado cash for legit purposes will lose every dollar they had in USDC. I'm really not sure how you came to the conclusion innocent people weren't getting screwed here, but it's irrefutable that they are, unless of course your definition of guilty is someone that used tornado cash, which would be a silly definition. I've used mixers plenty for completely legit reasons. I don't want people knowing how much crypto I have and I don't want to manage tons of addresses so when I transact in open ledgers I have at times had people pay me via mixers to hide the addresses I own and thus hide how much crypto I own from people doing business with me. All completely white market business dealing with buying/selling electronics too, for that matter.

> People laundering money through banks get sanctioned and jailed. When banks make a habit of laundering money, they too get sanctioned. There is ample historical record of all of this.

Incorrect, they pay fines that rarely even cover the profits they made to begin with.

> circle has blacklisted any USDC address that has been owned by the tornado cash protocol, which means anyone using tornado cash for legit purposes will lose every dollar they had in USDC

Wasn’t aware of that. Fair enough. Innocent people will get harmed.

That said, innocent users whose USDC was frozen haven’t lost their money. They’ll have to show they weren’t laundering money. When they do, they should be able get it unfrozen. If that doesn’t work they can pursue legal remedies, though the law in all of this is obviously undeveloped. We are in dire need of stablecoin legislation; something to add might be controlled redemption for users the issuer no longer wishes to associate with.

Their situation is analogous to getting money stuck at PayPal. If you don’t want to take that risk, don’t use PayPal. If you don’t want to run the risk of your stablecoin getting stuck, don’t use mixers. Particularly after they’ve been publicly identified for laundering money.

People have been talking about all of this for years. It was continuously shouted down, or claimed to be impossible because blockchains are above the law or something. I get that there was a lot of noise above that signal. But like, it’s North Korea. On the balance of harms, of course this is what happens. There was never another endgame. The wheels of justice just turn slower than bullshitters spin yarn.

> They’ll have to show they weren’t laundering money. When they do, they should be able get it unfrozen.

I hope you're right, but the process to make this happen will be painful and slow and the damages will not be compensated I suspect.

> If you don’t want to run the risk of your stablecoin getting stuck, don’t use mixers. Particularly after they’ve been publicly identified for laundering money.

Following this logic, should people stop using HSBC or any of the top international mega-banks? We're talking about banks that didn't "accidentally" let money laundering happen. They actively facilitated it. HSBC specifically laundered money for one of the most violent cartels in the world and not a soul went to jail.

Bit of a rant, but my point is that exactly where should people keep their money that is safe from being caught up in laundering? Such a place doesn't exist as far as I'm aware.

Morally speaking? Yeah, you should probably not use those banks if you care about the ramifications of money laundering.

Practically speaking? HSBC laundered $881 million in 2012 – but they had trillions of dollars of assets under custody. They may have to pay a big fine, but your ability to get at your money will not be impacted.

And even if you deposited your money into your account at "Money Laundering Bank N.A." where everyone but you was a specially designated national, you still have legal recourse to those funds backed by decades of case law. That same case law might help you if you keep money from a mixer in stablecoin that becomes frozen, but it's going to get way hairier.

> If you know your product is being used by criminals to do crime and you respond by shrugging your shoulders, I’m not sure what the expected outcome is supposed to be other than getting dinged.

You are aware that criminals use all the same thing as you an me right? They use toothbrush too... should Coldgate not shrug their shoulders? Sure they don't commit crime with them, but they do use them. Want something they use to commit crime? Guns to kill, cars to evade, bags to carry the money, etc... what should all theses companies do? Let's go even closer, about privacy, what about balaclava manufacturer, it's the default thing considered for banks robbers, yet they still sell them!

I don't have all the details in this case, my guess is that Tornado Cash were aware that it was used by theses countries and could have stopped theses specific accounts (it would keep going for sure without their knowledge using alternative accounts obviously, just like many of theses countries still are able to get Windows illegally, but at least they would no longer be aware of theses accounts). In that case it does makes sense and I agree with the direct sanction of Tornado Cash. I would still disagree with the blanket sanction over the open source contributors, as they might have contributed without knowing it was used by sanctioned country.

Writing all that made me think of a question: do you believe contributor to Windows should be sanctioned too knowing that Windows is used in some of the sanctioned countries?

> would still disagree with the blanket sanction over the open source contributors

No contributors have been sanctioned. Three leaders had their GitHub accounts deleted, from what I can tell, and are trying to misrepresent that as a threat to everyone who ever touched the project.

> The key issue is that any collateral damage is considered acceptable, but any false negatives are absolutely not.

Even though “better 100 guilty persons should escape than that one innocent person should suffer”. Not that this was ever uncontroversial, but how did it ever go so wrong, that the very problems of government that modern laws sought to correct are gleefully recreated using private companies as enforcement proxies?

Companies try not to break laws in general. If they think doing business with you will create a liability for them, they have a freedom of association right to deny you service.

Giving a legal answer to a moral question is backwards, I think. I understand the mechanics of how it works, but I’m asking how it should, not whether it does. (Franklin’s opinions on how trials ought to go are also hardly representative of the legal practices of the late 18th century.) It is not at all a universal opinion that non-natural persons should have freedom of association at all or in this manner.

I’m not trying to directly argue that they shouldn’t, though (as long as we allow that there is no moral principle that a non-natural person’s rights follow a natural one’s). I’m saying that it’s generally accepted to be a good thing that a (branch of) government can’t directly take away your livelihood without a good reason, and if you think the reason was not good there are reasonably unbiased ways to have your disagreement considered. For the most part, this applies to a government doing it by prohibiting a private party to deal with you. On the other hand, if the same state of affairs is reached by that government merely making it potentially very expensive for a private party to deal with you, somehow none of these standards apply anymore (or maybe they nominally do but nobody’s ever succeeded at enforcing them, which amounts to the same thing). That is what gives me the chills here.

>government can’t directly take away your livelihood without a good reason, and if you think the reason was not good there are reasonably unbiased ways to have your disagreement considered

OFAC sanctions can be appealed.

As an example, it seems plausible to me that a person who wants to enter the cryptocurrency sector could send a pull request and actually work with them to get merged to put it in their resume.

This person can be totally oblivious to the illegal stuff that's happening behind the scenes. After all they were just trying to prove that they actually have experience with cryptocurrency code to potential future employers.

It also can be some random security researcher who is preventing open source developers from shipping vulnerable code. I know for a fact that Github themselves employ such people that send security-related patches from time to time to open-source projects.

You can work up more examples -- my point is that people who definitely have nothing to do with any illegal activity whatsoever could exist in the list of contributors of these repositories.

It's nice that they didn't just nuke the whole contributors list, but it's still a bit unsettling.

> it's your responsibility to know and check who you are dealing with.

What can I say, duly noted.

The unfortunate reality is that there are no guarantees. I once inadvertently helped someone commit suicide. I had no idea until after he did the deed and there's no realistic way I could have known beforehand.

Sometimes you just have to assume that everyone's operating in good faith.

Probably not to GitHub or the courts. If in a few years it is discovered that GitHub missed something they can tell the courts "We did our best to comply, look at all the accounts we killed [and other evidence], so go easy on us for an honest mistake." In general the courts look kindly on someone who tried their best to obey the spirit of the law but missing one hidden detail.

If you are affected you could take this to court, and might even be able to convince them that the law went too far in incentivizing GitHub to delete your account. It seems very unlikely, but with a good lawyer courts can do weird things. If you do pull this off, then that would change court precedent, and when combined with a few dozen other cases eventually make it so courts will not accept deleting all accounts as a useful to to prove attempting to comply with the law. (Let me be clear, I doubt you could win this case, but it is theoretically possible so I offer it for completeness sake)

> Probably not to GitHub or the courts. If in a few years it is discovered that GitHub missed something they can tell the courts "We did our best to comply, look at all the accounts we killed [and other evidence], so go easy on us for an honest mistake." In general the courts look kindly on someone who tried their best to obey the spirit of the law but missing one hidden detail.

This matters a great deal when it comes to OFAC sanctions. The value of sanctions isn't "OFAC chasing down people on the SDN list", it comes from companies following federal law and blocking transactions that legally need to be blocked. And OFAC recognizes this – just look at their enforcement actions[0] and you can see examples where companies that build internal compliance programs and self-disclose violations come out with limited to no penalty[1], whereas companies that skirt compliance regimes place themselves at much more risk[2].

[0]: https://home.treasury.gov/policy-issues/financial-sanctions/...

[1]: https://home.treasury.gov/system/files/126/20220721_midfirst...

[2]: https://home.treasury.gov/system/files/126/20201020_berkshir...

Two things I see here, a copyright declaration doesn’t protect you from law enforcement actions and publishing source code is a clear example of free speech.

So you have to figure out for yourself if exercising your right to free speech is worth having the government blowup your life for the time it takes to “prove your innocence“. Because, I can assure you, they don’t care even a little bit about violating your constitutional rights if it gets in the way of whatever witch-hunt they are currently on. It’s the court’s job to sort those details out.

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