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New Zealand's longest-running online daily news and commentary publication, now in its 25th year. The opinion pieces presented here are not purported to be fact but reasonable effort is made to ensure accuracy.

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Write open source code, go to jail

10 Jun 2024

Believe it or not, writing some computer code and releasing it under an open-source license could result in you spending up to 25 years in jail.

We're not talking about ransomware, spyware or malevolent code that steals people's data or causes harm to anyone -- the penalties would perhaps be understandable if that was what the software was for.

The case in question is some anonymising software that effectively makes it impossible for Bitcoin transactions to be traced.

Recently, in the USA, the US Justice Department has indicted the operators of a crypto anonymising service and charged them with consipiracy to commit money laundering.

Does this sound fair... especially when all this code really does is effectively provide Bitcoin with the same level of anonymity that cash offers?

This isn't the first time the USA has gone after anonymising software. Almost two years ago Dutch police arrested the creators of Tornado Cash, an open-source software project that allowed the anonymisation of crypto transactions. This was seemingly done at the behest of the USA.

One could also argue that simply creating a tool that someone *could* use for illegal purposes is about as much of a crime as it is to manufacture kitchen knives that *could* be used to stab someone -- or to pay for something with cash which is untraceable.

The website Reason.com published a good piece on this particular event.

Unfortunately we live in a world where the right to be presumed innocent of a crime is little more than a distant memory. In the eyes of "the powers that be" it seems that we're all guilty of everything until we can prove our innocence.

There may be good reasons why someone would want to anonymise their Bitcoin transactions and those reasons may be 100 percent legal -- hence this piece of software is very much like a kitchen knife.

Sure, some people may choose to use such things to commit crimes but surely the punishment ought be meted out to those who actually commit the crime, not those whose products they mis-use in the process?

The latest prosecution by the US DOJ also speaks to their naivety, given that there is now open source code in the wild. Nobody owns the code but everyone has access to it and is able to use it if they want -- so what does a prosecution achieve?

I have grave concerns about the "fitness for purpose" of the US DOJ to be honest. This is the same agency that has banned Michael Decurcio of Philidelphia from flying even a tiny 28g toy drone within the four walls of his own house -- on specious claims that in doing so he would endanger the public's safety. When I checked with Mr Decurcio he told me that there are never any members of the public inside his house and that with the windows closed there is no way a 28g drone could escape to anywhere the public might be.

Unfortunately, the courts always seem to side with the DOJ because... they *are* the DOJ.

In the context of DOJ, the word "justice" is a sad lie. Nobody should ever confuse "law" with "justice", yet it seems that in the USA, especially where money is concerned, the meaning of "justice" is often distorted in the name of ensuring that profits and revenues are preserved.

So where does this leave other software developers, even those who form part of a group that are creating open-source code?

If the project you're working on gets mis-used by someone for nefarious purposes, could you be liable to prosecution? Could you end up spending the next 25 years in a prison cell?

And don't think that just because you're not living in the USA (the home of this new form of "justice") you're safe -- you're not. If your country has an extradition treaty with the USA then they'll likely have you extradited to face the best "justice" system that money can buy.

Once again I find myself gravely concerned at the state of the world. Soon, *everything* that has, until now, been an inalienable freedom will be taxed, regulated or simply illegal, often for no sane reason.

Carpe Diem folks!

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