Non-prosecution promises are not enough: Courts must rule on devs and money transmission
Developer Lewellen lays out what’s at stake for open-source speech and user privacy
Michael Lewellen has filed his opening brief in the Fifth Circuit, arguing that software developers like him face a credible threat of prosecution for unlicensed money transmission and deserve a ruling on the merits about the limits of such prosecutions.
Coin Center is supporting his fight because the chilling effect of these prosecutions is now the number one U.S. policy threat curbing innovation in crypto and endangering Americans’ constitutional rights to speech and privacy.
Michael is brave enough to stand up and ask for certainty. He refuses to simply leave it to the Southern District of New York to define the limits of lawful software development through the Tornado Cash and Samourai Wallet prosecutions.
His brief explains his non-custodial crowdfunding software, his well-founded fear of publishing, maintaining, hosting, and marketing that software in light of SDNY’s prosecutions, and why the steps taken so far by the administration are woefully inadequate. The Blanche memo, while directionally correct, offers no binding interpretation of what the law means or where its limits lie, and DOJ has repeatedly refused to admit that non-custodial software development is not a crime.
Michael is calling for a pre-enforcement judgment on whether he needs a license to publish his tools, and rightly so. As the brief argues, “A society founded on the rule of law does not want individuals to ‘bet the farm’ by breaking the law first and vindicating their rights second.”
Michael is entitled to that pre-enforcement judgment because his constitutional rights are at stake: both his speech rights to publish software and his due process rights to know the limits of a law that could put his liberty at risk. As SEC Commissioner Hester Peirce, quoted in his brief, has said, “Publishing code is speech, which the First Amendment protects.” And as to the insufficiency of the administration’s promises not to prosecute developers under these laws, the brief is clear: “Law-abiding citizens like Lewellen who know the federal government thinks their protected conduct is illegal need not rely on mere prosecutorial discretion—leaving their liberty ‘at the mercy of noblesse oblige.’”
As John Adams famously declared, we are a nation of laws, not of men. The last administration weaponized unlicensed money transmission laws to chill and criminalize software development. This administration has promised to stop, but has stopped short of offering anything binding or concrete.
It is time for a court to rule. Developers like Lewellen need the certainty of law, not the promises of powerful men.
Read the brief here.