A federal judge handed Tornado Cash co-founder Roman Storm a partial victory on Friday, allowing his attorneys and witnesses to discuss the importance of privacy during the remainder of his criminal trial.
But they cannot refer to a “right to privacy,” Judge Katherine Polk Failla said. Nor can they discuss “inflammatory” incidents such as the kidnapping of crypto investors — unless those kidnappings happened before August 8, 2022.
Failla’s ruling was a blow to prosecutors, who sought to limit references to privacy on the grounds that it could improperly skew jurors’ ultimate decision.
On Wednesday, prosecutors asked the judge to bar Storm’s attorneys and witnesses from discussing “privacy rights” or “irrelevant and inflammatory” incidents, arguing they could move sympathetic jurors to acquit Storm even if they think he’s guilty.
Only Storm should be permitted to discuss privacy, prosecutors said. That’s because the jurors are allowed to consider whether the software engineer, in building Tornado Cash, intended to break the law when they weigh his guilt or innocence.
Tornado Cash is a protocol that makes it exceedingly difficult, if not impossible, to trace users’ transactions on the Ethereum blockchain. It has found fans among privacy-conscious crypto users as well as cybercriminals.
Storm has been charged with conspiracy to commit money laundering, operate an unlicensed money-transmitting business, and violate US sanctions. He faces 45 years in prison.
The ‘right to privacy’
In June, prosecutors sought to bar evidence they deemed irrelevant to those charges, including evidence that some customers “used the service for purportedly lawful or sympathetic purposes” and claims that building Tornado Cash was “protected by constitutional rights to freedom of speech and privacy.”
In US jurisprudence, there is an inferred “right to privacy” that comes from clauses scattered across several amendments to the US Constitution, including the First Amendment. Before the trial began, Failla ruled that Storm could not use the First Amendment in his defence or refer to the right to privacy that it implies.
Prosecutors took issue with Storm’s opening statement on Tuesday, in which one of his attorneys, Keri Axel, referred to “the right to keep your financial transactions private from the public.”
“How would you feel if someone took your bank account and published it on the internet?” she continued. “You would not feel very safe.”
Failla said those comments “came very close to the line” and reiterated that Storm could “discuss his beliefs concerning the importance of privacy … without cloaking himself in the First Amendment.”
But she said her earlier ruling wasn’t “designed to remove the word or the concept of privacy from the trial.”
“Indeed, since I was allowing the defence to introduce evidence on the benign uses of Tornado Cash, it was all but certain that privacy would come up,” Failla continued.
But Storm, his attorneys, and his witnesses would have to “stay away from statements like ‘the right to privacy,’ which have legal connotations that I don’t think they’re trying to get into.”
Kidnappings
Blockchains are public ledgers. While their digital wallet addresses are a jumble of numbers and letters, once linked to an individual, they can reveal that person’s net worth and transaction history.
Many crypto investors fear that could put a target on their backs. That fear took on new urgency this year after a spate of crypto kidnappings, including one in which a French crypto executive and his wife were abducted and the executive had one of his fingers cut off during ransom negotiations.
Failla said Storm’s defence could discuss such incidents, but only to help explain his state of mind when building Tornado Cash.
“There will be plenty of less inflammatory evidence in the record suggesting a need for privacy in cryptocurrency transactions,” the judge said.
“To have the witness suggest … that either you have tools like Tornado Cash or your kids could be kidnapped would be unduly prejudicial and confusing to the jury.”
But there was a caveat.
“If indeed this evidence would be probative of Mr. Storm’s [state of mind], I think it would be admissible,” she said.
“Evidence of these high profile examples might explain why Mr. Storm developed Tornado Cash, or why he acted or declined to act upon being informed that proceeds of hacks were being run through Tornado Cash.”
But that means Storm can only reference kidnappings that predate the crimes alleged in his indictment, which occurred no later than August 8, 2022.
“I did a quick Google search on cryptocurrency kidnapping events, and the only ones that I saw — it was a very quick search — took place in 2025,” Failla said.
“I would need some indication from the defence that the events took place within the appropriate time period … as well as something that would allow me to conclude that the event was so widely publicized that Mr. Storm, or someone in his position in the crypto community, would have known about it.”
Storm’s trial began on Monday. It is expected to last three weeks.
Aleks Gilbert is DL News’ New York-based DeFi correspondent. You can reach him at [email protected].
