The U.S. Department of Justice’s (DOJ) indictment against the Tornado Cash developers, filed Wednesday, is commensurate with the government’s seeming disdain for privacy.
Across the government, there seems to be an entrenched assumption that an individual’s desire to keep the details of their life private means they’re engaging in wrongdoing. This overly simplistic assumption is not supported by the law or the reality of exactly why privacy is so important to countless law-abiding citizens in their everyday lives.
Nor does it adequately balance the 21st century citizen’s right to privacy with the need to ensure the government can effectively enforce the law.
Miller Whitehouse-Levine is the CEO of the DeFi Education Fund and Amanda Tuminelli is the chief legal officer of the DeFi Education Fund.
In the last century the world has changed in ways that make almost every one of our daily activities far less private than ever before. In our digital lives, some third party is often involved in almost every conversation we have, every place we go and what we spend our money on — tracking and often retaining that information in insecure databases.
See also: Tornado Cash Devs Are Caught in a U.S. Dragnet | Opinion
When people traded gold and later, cash, there was no way for the government to trace the transactions, whether illicit or legitimate, without a warrant or subpoena. When people went about their daily routines, they did not create a permanent digital record.
The government, if it suspected a person of committing a crime, was forced to do some good old fashioned police work: following people around and marking bills to follow the money.
More recently, the government has gained much more insight and powers of preemptive surveillance into our financial lives. For example, with the enactment of the Bank Secrecy Act in 1970, financial institutions have to engage in record-keeping and reporting in order to assist the government in its efforts to prevent money laundering, and as a result, most of the information we provide to our banks can easily be viewed by the government.
Moreover John Doe subpoenas to financial institutions allow the government to obtain huge swaths of information (including purchase and spending history) without a court-ordered search warrant — without needing to reveal what crimes are being investigated or whether the personal information relates to a target, subject or witness.
In other words, the government is provided with the largely unfettered ability to access personal information. And, strikingly, banks and financial institutions are forbidden from telling their clients if their information has been handed over.
"What do you have to hide if you're not doing anything wrong” is too often used as a rhetorical cudgel against basic privacy rights. In fact there are perfectly valid reasons a person may want to keep their financial lives and communications private.
A person may want to give to a political cause or religious entity without fear that they will be persecuted for their views. They may want to purchase items without anyone knowing to protect secrets or out of embarrassment or any other reason. They may want to speak freely to their friends without fear their words may be later taken out of context by a government official.
In a country as free as the U.S., it is easy to forget that our beliefs, associations and lifestyles may come in conflict with an ever-changing political landscape. This is why our constitution proscribes the ability of the government to access otherwise private information unless there is a legitimate government interest or compelling need to intrude on Fourth Amendment rights.
The privacy debate is decades old. There will always be an inherent tension in balancing the individual’s right to privacy with the government’s legitimate need to cabin privacy rights in certain circumstances to prevent crime or serve an important government interest. What seems to have been lost along the way is a mutual respect and benefit of the doubt between the government and citizens.
The rule of law and exercise of legitimate government authority demands we continue to grapple with the appropriate balance between liberty and security. New technologies like encrypted electronic communications or apps that enable anonymous payments complicate the matter.
New technologies call for new rules, which in turn requires engagement with as well as curiosity and education about the technology’s pitfalls and benefits. Regardless of what you think about the merits of a particular case or allegation, we should question any time there is wholesale disapproval of new technology simply because it affirms an individual’s well-established right to privacy.