Summary
– Landmark Court Ruling: The Fifth Circuit struck down OFAC’s designation of Tornado Cash’s immutable smart contracts, finding they are not “property” under IEEPA.
– Immutable vs. Mutable: The court distinguished immutable contracts (which cannot be altered or owned by anyone) from mutable ones; only the former fell outside OFAC’s sanctions scope.
– SDN List Status: Tornado Cash’s Ethereum addresses remain on the SDN List pending further action. U.S. persons are still broadly prohibited from transacting with these addresses.
– Ongoing Legal Complexity: A parallel Eleventh Circuit case and potential appeals could escalate the issue to the Supreme Court, leaving the ultimate fate of these sanctions uncertain.
– Regulatory Tension: The ruling underscores the difficulty of applying existing sanctions laws to decentralized technologies, possibly prompting new legislative or regulatory measures.
– Risk to Users: Anyone engaging with sanctioned Tornado Cash addresses—knowingly or unknowingly—faces potential legal repercussions, including heavy fines and other sanctions.
Key Q&A Highlights
What Is Tornado Cash?
A privacy-focused Ethereum mixer alleged to launder billions in illicit funds.
Why Did the Fifth Circuit Overturn Part of the Sanctions?
It held that immutable smart contracts are not “property” because no one can own or control them.
Are Sanctions Still in Effect?
Yes. Tornado Cash’s addresses remain sanctioned on the SDN List, and OFAC has not yet removed them.
Legal Next Steps:
The ruling may be appealed, and parallel court cases could produce a circuit split, potentially leading to Supreme Court review.
On November 26, 2024, the United States Court of Appeals for the Fifth Circuit issued a landmark ruling in Van Loon et al. v. Department of the Treasury, challenging the U.S. Department of the Treasury’s designation of Tornado Cash—a popular yet controversial cryptocurrency mixing service—on the Specially Designated Nationals and Blocked Persons List (“SDN List”). This decision has attracted significant attention for its implications on how decentralized technologies and immutable smart contracts can (or cannot) be sanctioned under existing U.S. law.
Below, we explore how Tornado Cash became a target of sanctions, the court’s rationale in striking down OFAC’s designation of immutable smart contracts, and the looming question: Will the government remove the Tornado Cash addresses from the SDN List?
Background: Tornado Cash and Its OFAC Designation
1. What Is Tornado Cash?
Tornado Cash is an open-source, decentralized software protocol that uses “smart contracts” on the Ethereum blockchain to mix cryptocurrencies, obfuscating the transaction trail between senders and recipients. Tornado Cash offers:
- – Privacy: Users deposit their crypto assets into a “pool,” withdraw them to new addresses, thus breaking the public chain of custody.
- – Autonomy: Its immutable smart contracts, once deployed, cannot be controlled, altered, or owned by any single entity.
2. OFAC’s Initial Sanctions
On August 8, 2022, the U.S. Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, alleging that it had been used to launder over $7 billion in illicit funds—most notably, $455 million allegedly stolen by the North Korean Lazarus Group.1 OFAC’s action placed Tornado Cash and numerous Ethereum addresses associated with its smart contracts on the SDN List.
3. Legal Challenges
Soon after OFAC’s designation, a group of Tornado Cash users (financially backed by Coinbase) sued, arguing that immutable smart contracts, which cannot be owned or controlled, are not “property” and therefore fall outside the scope of the International Emergency Economic Powers Act (IEEPA). This challenge culminated in the Fifth Circuit’s November 2024 ruling, which overturned the designation related to Tornado Cash’s immutable smart contracts.
The Fifth Circuit’s Decision: Why Immutable Smart Contracts Are Not “Property”
In Van Loon et al. v. Department of the Treasury, the court concluded that Tornado Cash’s immutable smart contracts:
Lack Ownership and Control
- – IEEPA requires that sanctioned “property” be capable of being owned or controlled by someone.
- – Immutable smart contracts operate autonomously on the blockchain and cannot be changed or withdrawn by any individual or entity.
Cannot Be Excluded from Public Use
- – A key feature of “ownership” often includes the right to exclude others.
- – Because anyone with an internet connection can use these immutable contracts, they are not subject to traditional property rights.
Are Not “Services” Provided by Tornado Cash
- – OFAC tried to argue that these smart contracts fell under its expansive definition of “property” or “property interests.”
- The Fifth Circuit found that they merely facilitate a “mixing” function and are not themselves “services” that Tornado Cash (or anyone else) owns or provides.
This reasoning placed real limitations on OFAC’s authority, at least with regard to truly immutable smart contracts.
Do the Tornado Cash Addresses Remain on the SDN List?
Despite the court’s decision striking down the designation of immutable contracts, several factors cloud the question of whether OFAC will actually remove these addresses from the SDN List:
Ongoing Legal Uncertainty
- – The Treasury Department could appeal the ruling.
- – A parallel challenge is pending in the Eleventh Circuit (Coin Center, et al. v. Secretary, U.S. Department of the Treasury, et al.), where a lower court initially upheld OFAC’s actions.
- – A circuit split could escalate the issue to the U.S. Supreme Court.
Partial Scope
- – The Fifth Circuit ruling focused specifically on immutable smart contracts, not mutable contracts that Tornado Cash or any group of developers might control.
- – OFAC retains the authority to sanction any person or entity—human or corporate—that facilitates illicit transactions, so it is not obligated to delist the addresses until it takes separate administrative action.
Existing Framework Remains
- – OFAC’s broader sanctions regime against the founders of Tornado Cash or any user who intentionally launders illicit funds still stands.
- – The core principle of “strict liability” for sanctions violations remains intact, meaning U.S. persons (or foreign persons dealing in U.S. jurisdictions) must still tread carefully.
At this juncture, OFAC has not announced the removal of any Tornado Cash Ethereum addresses from its SDN List. Until or unless OFAC issues official guidance reversing or updating its listings, the addresses remain under sanction. Businesses and individuals should not assume they can freely interact with these addresses without risk.
Tornado Cash Addresses on the SDN List
As of the last published update, the following Ethereum addresses remain associated with the Tornado Cash designation. Users should treat all dealings with these addresses as potentially sanctionable:
- – 0x12D66f87A04A9E220743712cE6d9bB1B5616B8Fc
- – 0x47CE0C6eD5B0Ce3d3A51fdb1C52DC66a7c3c2936
- – 0x910Cbd523D972eb0a6f4cAe4618aD62622b39DbF
- – 0xA160cdAB225685dA1d56aa342Ad8841c3b53f291
- – 0xD4B88Df4D29F5CedD6857912842cff3b20C8Cfa3
Key Takeaways for Crypto and DeFi Participants
Mutability Matters
- – The Fifth Circuit’s decision is narrow and specifically concerns immutable smart contracts. If a protocol or developer group can still update the code, that contract could be subject to sanction.
Regulatory Risks Remain
- – Even if the government ultimately removes Tornado Cash’s immutable contracts from the SDN List, other aspects of the protocol (including developers, founders, or controlled contracts) may stay sanctioned.
- – Users who intentionally engage with sanctioned entities to launder money can still face serious legal consequences.
Potential Legislative Update
- – The court emphasized the difficulty in applying older laws like IEEPA to modern blockchain technology.
- – We may see Congress or regulatory agencies move to fill the gap, potentially introducing more tailored legislation for decentralized protocols.
Multifaceted Sanctions Framework
- – Nothing in this ruling prevents OFAC from designating other mixers or addresses under different legal rationales, especially if they are mutable, controlled by identified persons, or used by known illicit actors.
Conclusion
The Fifth Circuit’s recent ruling on Tornado Cash marks a watershed moment in the evolving relationship between decentralized finance (DeFi) and U.S. sanctions law. By holding that immutable smart contracts cannot be considered “property” under IEEPA, the court has significantly limited OFAC’s ability to target certain decentralized technologies. However, the ruling leaves many legal questions unresolved and remains subject to appeal. Until OFAC updates its designations, all listed Tornado Cash addresses remain on the SDN List—and U.S. persons are still broadly prohibited from engaging in transactions with those addresses.
Whether OFAC will remove any of the sanctioned Tornado Cash addresses now hinges on continued litigation, possible appeals, and the Treasury Department’s administrative actions. In the meantime, the case underscores the tension between protecting privacy, fostering innovation, and preventing illicit financing in the ever-changing world of crypto.
Frequently Asked Questions (FAQ)
Q: What is Tornado Cash, and why was it sanctioned?
A: Tornado Cash is an open-source mixing protocol on the Ethereum blockchain. It was sanctioned by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) in August 2022 for allegedly facilitating the laundering of more than $7 billion in illicit cryptocurrency, including funds stolen by the North Korean Lazarus Group.
Q: How did the Fifth Circuit’s decision affect the sanctions on Tornado Cash?
A: In Van Loon et al. v. Department of the Treasury, the Fifth Circuit held that immutable smart contracts associated with Tornado Cash are not “property” under the International Emergency Economic Powers Act (IEEPA). This ruling limits OFAC’s authority to sanction certain decentralized technologies, although it does not fully remove Tornado Cash from the Specially Designated Nationals (SDN) List.
Q: Are Tornado Cash’s Ethereum addresses still on the SDN List?
A: Yes. Despite the Fifth Circuit’s ruling, OFAC has not removed any Tornado Cash Ethereum addresses from the SDN List. Until OFAC takes further action, U.S. persons and entities remain prohibited from dealing with these addresses.
Q: Does the ruling mean it’s now legal to use Tornado Cash?
A: No. The decision only addressed whether immutable smart contracts can be sanctioned as “property.” All Tornado Cash addresses on the SDN List remain sanctioned, and U.S. persons are still subject to potential penalties if they transact with them.
Q: Why does “immutability” matter in this case?
A: An immutable smart contract cannot be altered, controlled, or owned by any individual or group after deployment. The Fifth Circuit concluded that such autonomous code is not “property” under IEEPA because it lacks the element of control that typically defines ownership.
Q: What risks do crypto users face if they interact with sanctioned addresses?
A: Anyone—U.S. persons or otherwise—who transacts with sanctioned addresses could be in violation of U.S. sanctions laws. Violations can result in severe penalties, including fines and other legal consequences, even if the user unknowingly interacts with a sanctioned address.
Q: What happens next for Tornado Cash and OFAC?
A: The Treasury Department may appeal the Fifth Circuit ruling, or a similar case in another jurisdiction (the Eleventh Circuit) could create a circuit split. Any final outcome may prompt OFAC to revise its stance or lead to new legislation clarifying sanctions authority over decentralized protocols.
Q: How does this ruling impact the broader crypto and DeFi space?
A: The ruling suggests that U.S. sanctions laws might not seamlessly apply to certain decentralized, autonomous technologies. However, mutable smart contracts, project developers, or platform operators can still face sanctions. This drives home the point that legal and regulatory clarity remains a top concern for the DeFi industry.
All current Tornado Cash OFAC listed addresses:
- – 0x12D66f87A04A9E220743712cE6d9bB1B5616B8Fc
- – 0x47CE0C6eD5B0Ce3d3A51fdb1C52DC66a7c3c2936
- – 0x910Cbd523D972eb0a6f4cAe4618aD62622b39DbF
- – 0xA160cdAB225685dA1d56aa342Ad8841c3b53f291
- – 0xD4B88Df4D29F5CedD6857912842cff3b20C8Cfa3
- – 0xFD8610d20aA15b7B2E3Be39B396a1bC3516c7144
- – 0x07687e702b410Fa43f4cB4Af7FA097918ffD2730
- – 0x23773E65ed146A459791799d01336DB287f25334
- – 0x22aaA7720ddd5388A3c0A3333430953C68f1849b
- – 0x03893a7c7463AE47D46bc7f091665f1893656003
- – 0x2717c5e28cf931547B621a5dddb772Ab6A35B701
- – 0xD21be7248e0197Ee08E0c20D4a96DEBdaC3D20Af
- – 0x4736dCf1b7A3d580672CcE6E7c65cd5cc9cFBa9D
- – 0xDD4c48C0B24039969fC16D1cdF626eaB821d3384
- – 0xd96f2B1c14Db8458374d9Aca76E26c3D18364307
- – 0x169AD27A470D064DEDE56a2D3ff727986b15D52B
- – 0x0836222F2B2B24A3F36f98668Ed8F0B38D1a872f
- – 0x178169B423a011fff22B9e3F3abeA13414dDD0F1
- – 0x610B717796ad172B316836AC95a2ffad065CeaB4
- – 0xbB93e510BbCD0B7beb5A853875f9eC60275CF498
- – 0x84443CFd09A48AF6eF360C6976C5392aC5023a1F
- – 0xd47438C816c9E7f2E2888E060936a499Af9582b3
- – 0x330bdFADE01eE9bF63C209Ee33102DD334618e0a
- – 0x1E34A77868E19A6647b1f2F47B51ed72dEDE95DD
- – 0xdf231d99Ff8b6c6CBF4E9B9a945CBAcEF9339178
- – 0xaf4c0B70B2Ea9FB7487C7CbB37aDa259579fe040
- – 0xa5C2254e4253490C54cef0a4347fddb8f75A4998
- – 0xaf8d1839c3c67cf571aa74B5c12398d4901147B3
- – 0x6Bf694a291DF3FeC1f7e69701E3ab6c592435Ae7
- – 0x3aac1cC67c2ec5Db4eA850957b967Ba153aD6279
- – 0x723B78e67497E85279CB204544566F4dC5d2acA0
- – 0x0E3A09dDA6B20aFbB34aC7cD4A6881493f3E7bf7
- – 0x76D85B4C0Fc497EeCc38902397aC608000A06607
- – 0xCC84179FFD19A1627E79F8648d09e095252Bc418
- – 0xD5d6f8D9e784d0e26222ad3834500801a68D027D
- – 0x407CcEeaA7c95d2FE2250Bf9F2c105aA7AAFB512
- – 0x833481186f16Cece3f1Eeea1a694c42034c3a0dB
- – 0xd8D7DE3349ccaA0Fde6298fe6D7b7d0d34586193
- – 0x8281Aa6795aDE17C8973e1aedcA380258Bc124F9
- – 0x57b2B8c82F065de8Ef5573f9730fC1449B403C9f
- – 0x05E0b5B40B7b66098C2161A5EE11C5740A3A7C45
- – 0x23173fE8b96A4Ad8d2E17fB83EA5dcccdCa1Ae52
- – 0x538Ab61E8A9fc1b2f93b3dd9011d662d89bE6FE6
- – 0x94Be88213a387E992Dd87DE56950a9aef34b9448
- – 0x242654336ca2205714071898f67E254EB49ACdCe
- – 0x776198CCF446DFa168347089d7338879273172cF
- – 0xeDC5d01286f99A066559F60a585406f3878a033e
- – 0xD692Fd2D0b2Fbd2e52CFa5B5b9424bC981C30696
- – 0xca0840578f57fe71599d29375e16783424023357
- – 0xDF3A408c53E5078af6e8fb2A85088D46Ee09A61b
- – 0x743494b60097A2230018079c02fe21a7B687EAA5
- – 0x94C92F096437ab9958fC0A37F09348f30389Ae79
- – 0x5efda50f22d34F262c29268506C5Fa42cB56A1Ce
- – 0x2f50508a8a3d323b91336fa3ea6ae50e55f32185
- – 0xCEe71753C9820f063b38FDbE4cFDAf1d3D928A80
- – 0xffbac21a641dcfe4552920138d90f3638b3c9fba
- – 0x179f48c78f57a3a78f0608cc9197b8972921d1d2
- – 0xb04E030140b30C27bcdfaafFFA98C57d80eDa7B4
- – 0x77777feddddffc19ff86db637967013e6c6a116c
- – 0x3efa30704d2b8bbac821307230376556cf8cc39e
- – 0x746aebc06d2ae31b71ac51429a19d54e797878e9
- – 0xd90e2f925DA726b50C4Ed8D0Fb90Ad053324F31b
- – 0x5f6c97C6AD7bdd0AE7E0Dd4ca33A4ED3fDabD4D7
- – 0xf4B067dD14e95Bab89Be928c07Cb22E3c94E0DAA
- – 0x58E8dCC13BE9780fC42E8723D8EaD4CF46943dF2
- – 0x01e2919679362dFBC9ee1644Ba9C6da6D6245BB1
- – 0x2FC93484614a34f26F7970CBB94615bA109BB4bf
- – 0x26903a5a198D571422b2b4EA08b56a37cbD68c89
- – 0xB20c66C4DE72433F3cE747b58B86830c459CA911
- – 0x2573BAc39EBe2901B4389CD468F2872cF7767FAF
- – 0x527653eA119F3E6a1F5BD18fbF4714081D7B31ce
- – 0x653477c392c16b0765603074f157314Cc4f40c32
- – 0x88fd245fEdeC4A936e700f9173454D1931B4C307
- – 0x09193888b3f38C82dEdfda55259A82C0E7De875E
- – 0x5cab7692D4E94096462119ab7bF57319726Eed2A
- – 0x756C4628E57F7e7f8a459EC2752968360Cf4D1AA
- – 0x722122dF12D4e14e13Ac3b6895a86e84145b6967
- – 0x94A1B5CdB22c43faab4AbEb5c74999895464Ddaf
- – 0xb541fc07bC7619fD4062A54d96268525cBC6FfEF
- – 0xD82ed8786D7c69DC7e052F7A542AB047971E73d2
- – 0xF67721A2D8F736E75a49FdD7FAd2e31D8676542a
- – 0x9AD122c22B14202B4490eDAf288FDb3C7cb3ff5E
- – 0xD691F27f38B395864Ea86CfC7253969B409c362d
- – 0xaEaaC358560e11f52454D997AAFF2c5731B6f8a6
- – 0x1356c899D8C9467C7f71C195612F8A395aBf2f0a
- – 0xA60C772958a3eD56c1F15dD055bA37AC8e523a0D
- – 0xBA214C1c1928a32Bffe790263E38B4Af9bFCD659
- – 0xb1C8094B234DcE6e03f10a5b673c1d8C69739A00
- – 0xF60dD140cFf0706bAE9Cd734Ac3ae76AD9eBC32A
- – 0x8589427373D6D84E98730D7795D8f6f8731FDA16