Yesterday, the State Department and Treasury designated an Italian collective, Autistici/Inventati or A/I, as a Specially Designated Global Terrorist and subjected it to sanctions. The designation warrants close scrutiny because much of what the government alleges as its basis is, effectively, the provision of communications and privacy infrastructure.
That doesn’t mean the sanctions are inappropriate. But it means the designation sits somewhere close to both the constitutional and statutory limits of sanctions authority. Our First Amendment limits the government’s ability to punish speech. Similarly, the Berman Amendments to the International Emergency Economic Powers Act (IEEPA) deny the President authority to sanction transactions involving information and informational materials. But the A/I designation also alleges activities that may go beyond speech and information, and it is difficult to evaluate the legal significance of those facts until more details emerge.
We did some quick digging to see what we could find about Autistici/Inventati on the internet from before the designation was announced.
By all accounts, it is not a politically neutral hosting company. Since 2001, A/I has openly described itself as a radical-left collective providing email, web hosting, mailing lists, blogs, anonymity tools, and other communications infrastructure to groups broadly aligned with its anti-capitalist, antifascist, and anarchist politics. Nor does A/I appear to operate like a typical commercial hosting provider. A/I claimed to manually review requests for service based on the ideological aims of prospective users. After repeated encounters with European law enforcement, A/I also openly said they engineered their infrastructure to resist surveillance and minimize the identifying information they retain.
Still, choosing who you do business with on ideological grounds is not itself unlawful, and minimizing your exposure to customers’ data is not only legal, it is good technical and security practice.
The government’s August 26 fact sheet alleges that violent groups “relied on” A/I services to publish communiqués, claim responsibility for attacks, distribute manifestos, circulate maps, and share sabotage manuals. Much of that kind of activity is typically treated as speech in our constitutional tradition even when it is despicable. Much of those transactions sound, without further details, like transactions in “information or informational materials,” which the Berman Amendments to IEEPA remove from presidential sanctions authority.
You can see why the facts matter here. If A/I really was merely transacting in information and offered no particularized assistance to bad actors with an intent to further their bad schemes, then this designation would be questionable.
If, on the other hand, A/I administrators actively helped attackers choose targets, specifically configured systems for a known planned attack, provided bespoke assistance designed to evade law enforcement in connection with an attack, or otherwise participated in violent operations, the government has a substantially stronger case for sanctions and other enforcement.
It’s important to stay level headed. Some of the apparent users were not merely distasteful political radicals. The government identifies groups responsible for firebombings, rail sabotage, attacks on energy infrastructure, and other acts of political violence. But if, in our zeal to stop these people from committing further violent acts, we support a rule that effectively allows the President to censor and sanction mere speech and communications infrastructure, then we will have further cut down the precious protections our laws and Constitution provide.
There are some parallels to Tornado Cash, of course. Roman Storm’s prosecution is back in the news because the SDNY has now set an April 26, 2027 retrial on the two conspiracy charges, money laundering and sanctions violations, on which the jury deadlocked the first time around.
Additionally, Roman took to Twitter this week describing how he never ran a relayer for private transactions, while Chainalysis, as emerged in the court record, apparently did.
Unlike the Tornado Cash developers, and even the Tornado Cash token holders, relayers interacted directly with Tornado Cash users and charged a fee for doing so. That puts relayers much closer to the conduct side of a speech (protected) versus conduct (unprotected) distinction for First Amendment and Berman Amendment purposes. We argued this point extensively during the first trial in our amicus brief to the court. - Peter
What else we’re reading
U.S. Citizen Who Deleted Phone’s Data Says His Prosecution Puts Privacy at Risk - We discussed this case in a previous issue: “Every phone should have a self-destruct feature: if a thief takes it, it dies; if a kidnapper forces its owner to unlock it, it dies. In the language of contributory copyright liability, this technology is plainly capable of substantial lawful uses. Criminals do not get a heckler’s veto over everyone else’s security.”
Flock has people thinking about privacy in a new light. It seems like we may have hit a tipping point. We are finally fed up with surveillance. Now let’s see if we can roll back some of the creeping expansions of the last few decades.
Thanks for reading. If there’s anything you’d like to see us discuss, please let us know.
