On perhaps the first spring day of the year in Washington D.C, after spending three years in federal holding, on Tuesday Russian-Swedish national Roman Sterlingov was convicted of four charges related to running the no-longer operational bitcoin (BTC) mixing service Bitcoin Fog. Sentencing is set for July 15, and he faces decades in prison for crimes related to money laundering and unregistered money transmitting.
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Tor Ekeland, a known entity when it comes to the criminal defense of supposed computer criminals, told CoinDesk in a phone interview the defense intends to appeal the decision. The main issue is a matter of jurisdiction; up until Sterlingov’s arrest in Los Angeles in April of 2021, the defendant hadn’t stepped foot in the U.S.
It’s a strategy Ekeland employed in his first major win against the government — defending “Nazi troll” Andrew “Weev” Auernheimer, charged with violating the Computer Fraud and Abuse Act after he exposed a massive security flaw in AT&T’s website. Ekeland won on appeal after the court found the venue, the state of New Jersey, had no connection to Auernheimer or AT&T.
“This is just the halfway point,” Ekeland said, noting that he expected and respected the jury’s verdict and that federal criminal win rates exceed 99%. Ekeland’s main argument is that the Department of Justice was able to bring the case after the IRS, which was involved in the decade-long investigation, contacted Bitcoin Fog customer service asking if it’d be a good platform to launder funds earned from selling drugs.
“If the government can get criminal venue from what they did in this case, that means that any prosecutor in the f***ing United States can sit down at their computer in Podunkville, do a transaction on your website and then criminally charge you in the place that they do it,” he said. That “blows a hole in the venue clause” set up by the U.S. Constitution.
See also: When Did Privacy Become a Bad Word? | Opinion
Adding to this issue is that Ekeland and his partner on the case Mike Hassard, a friend of Sterlingov, filed motions to dismiss the case and for presiding District Judge Randolph Moss to clarify the “venue issue” that were only answered “from the bench” the day the trial began. “There’s a gigantic venue issue … and I can kind of tell that the judge knew” that.
There are other issues Ekeland intends to raise when he files a notice of appeal after Sterlingov’s sentencing this summer having to do with what the government was allowed to enter into evidence versus the defense and other “shaddy” background issues that may cast doubt on the decision.
“I mean, we got [into evidence] that [Sterlingov] was in jail, when Bitcoin Fog took his last withdrawal,” he said. However, there are other issues about the site’s operations and sunsetting that occurred when Sterlingov could not have had access to the servers, Ekeland noted. More importantly, Ekeland said that the government never conclusively showed Sterlingov ever operated or profited from the site — he was just an early user.
“The flow of funds is not the same as flow of control,” Ekeland said, discussing a particular series of transactions supposedly linking Sterlingov to Bitcoin Fog’s domain name registrar. He suggested that in 2011 Sterlingov, who had supported his lifestyle by trading bitcoin, sold bitcoin to the people who started Bitcoin Fog.
This is a point J.W. Verret, an associate professor at George Mason University’s Antonin Scalia Law School, raised in a Cointelegraph op-ed, noting “Sterlingov may have sold Bitcoin to someone who bought the Bitcoin Fog website, or that someone may have later sold Bitcoin to someone who then sold it to someone else.”
Matt Price, who participated in the government’s investigation of Bitcoin Fog while with the IRS Criminal Investigation team and who now leads strategic engagement at on-chain analysis firm Elliptic, disagrees. “The evidence linking to that transaction was very clear — we had source information, I’ve seen the records. That was not the most complicated tracing I’ve ever done.”
See also: Privacy Is a Human Right | Opinion
It’s a significant point considering that much of the criminal defense hinged on discrediting the notion of on-chain analysis — particularly that of Chainalysis’ Reactor software used by numerous government agencies around the world. In one of the pre-trial hearings, which ended up totalling over 1,800 pages of records, Ekeland referred to Chainalysis’ software as “junk science.”
In particular, in a lengthy pretrial debate, there were concerns the software had not been “peer-reviewed” or scientifically accredited and could generate false positives. This ended up not mattering much in court: Judge Moss said he was “unpersuaded” by the defense’s stance that blockchain analytics is faulty.
“Substantial evidence supports the government’s submission that the software is highly reliable—and, if anything, conservative,” Moss wrote in a 31-page pre-trial order.
This may cycle back to the appeals case Ekeland is building: In August, Jonelle Still, director of investigations and intelligence at competitor analysis firm CipherTrace, submitted a 41-page expert report claiming Chainalysis used “unverifiable” and “incomplete” techniques to incorrectly link Sterlingov to Bitcoin Fog. Mastercard, which bought CipherTrace in 2021, later spiked the report.
“We lost our tracing expert right before the trial,” Ekeland said, adding “we never got a really clear reason why.”
For its part, a Chainalysis representative said over email that “the decision directly dismisses concerns around error rate, peer review or testing,” adding those issues are hardly “relevant to the underlying technology.” It was a point Price agreed with, saying the argument “fell flat with the jury.”
Questions about blockchain analysis to one side, Price said his investigations while at the IRS were “old fashioned manual police work.” The case took a decade to build, “we were all over traveling around the world, taking all kinds of different investigative steps, reviewing records, using every tool at our disposal,” he said.
While Price said the average crypto user has every right to preserve their financial privacy, he noted that Bitcoin Fog’s website, corporate and social media communications and branding suggested it was actively soliciting funds from criminal enterprises.
“Privacy is a fine line. If you’re not taking any steps whatsoever to prevent child sexual abuse material, darknet markets, ransomware, the Bitfenix hack, things of that nature for using your service, you’re actually, in my mind, as bad or worse than the people involved in the actual illicit activity,” Price said.
See also: Man Who Laundered Billions in Bitcoins From Bitfinex Says He Used Bitcoin Fog
Many people in the crypto industry — whether or not it accepts Sterlingov’s guilty verdict — would likely disagree. Crypto operates on the principle of credible neutrality, the idea that protocols should not be able to discriminate against or censor users, just as a dollar bill does not care who uses it. And, perhaps unfortunately, the only way to ensure that platforms remain accessible for all is to ensure they can also facilitate the worst actors.
Ekeland might see that as a frightening prospect, but a wrongful conviction based on “circumstantial” evidence as worse.
“I think this is really scary for anyone involved in bitcoin,” he said of TK. “The underlying assumptions that people were making about the traces is essentially that the flow of funds equals the flow of control.”
