A federal judge in Brooklyn, New York, granted Tornado Cash co-founder Roman Storm a partial victory on Friday, allowing his defense team and expert witnesses to discuss the importance of privacy during the ongoing criminal trial. However, the judge barred Storm’s counsel from explicitly invoking a “right to privacy” in their arguments.
Prosecutors had sought to limit all references to privacy to prevent potentially swaying the jury’s decision. On Wednesday, they specifically asked the court to bar Storm’s attorneys and witnesses from discussing the concept of “privacy rights” or any “irrelevant and inflammatory” incidents, fearing such arguments could evoke sympathy regardless of guilt.
Tornado Cash is a decentralized protocol designed to obscure the transaction history on the Ethereum blockchain, making it difficult to trace users’ activities. While valued by privacy advocates, the software has also been utilized by individuals breaking sanctions or laundering illicit funds, leading to Storm’s indictment.
Federal prosecutors charged Storm with conspiracy to commit money laundering, operating an unlicensed money transmitting business, and violating U.S. sanctions. If convicted on all counts, Storm faces a maximum sentence of 45 years in prison.
The ‘Right to Privacy’
In June, prosecutors moved to exclude evidence they deemed irrelevant, including documentation that supported claims Tornado Cash was “protected by constitutional rights to freedom of speech and privacy.” U.S. jurisprudence infers a “right to privacy” from the First Amendment and other constitutional clauses, but Judge Katherine Polk Failla ruled before the trial that Storm could not rely on the First Amendment or the implied privacy right in his defense.
Failla noted that one of Storm’s attorneys, Keri Axel, approached the constitutional right of privacy too closely in opening statements by asking jurors, “How would you feel if someone took your bank account and published it on the internet?” Failla stated her ruling against mentioning “the right to privacy” was not meant to erase the concept entirely from the trial. “Indeed, since I was allowing the defense to introduce evidence on the benign uses of Tornado Cash, it was all but certain that privacy would come up,” she explained. The defense may still discuss their beliefs concerning privacy’s importance, but without cloaking them in constitutional protection.
Pre-2022 Inflammatory Evidence
Failla also ruled that Storm, his attorneys, and witnesses are barred from referencing any “inflammatory” incidents such as crypto-related kidnappings, unless the event occurred before August 8, 2022. Blockchains operate as public ledgers, potentially exposing transaction histories and net worth if linked to individuals, creating valid concerns for privacy and safety among cryptocurrency users.
To demonstrate the timeline issue, Failla herself conducted a quick Google search on cryptocurrency kidnapping events and found none post-dating August 2022. She instructed the defense to only reference pre-dated incidents if they could demonstrate the event was publicly known and motivated Storm’s actions or beliefs, and that the evidence was indeed probative of Storm’s state of mind at the time the indictment alleged crimes were committed.
“If indeed this evidence would be probative of Mr. Storm’s [state of mind], I think it would be admissible,” Failla stated. “Evidence of these high profile examples might help explain why Mr. Storm developed Tornado Cash, or why he acted or declined to act upon being informed that proceeds of hacks were being run through Tornado Cash.” The trial commenced Monday and is expected to last approximately three weeks.
