The Digital Chamber was disappointed that the Southern District of New York declined to accept our amicus curiae brief in the Samourai Wallet prosecution. Courts ordinarily welcome amici briefs, especially where highly technical questions intersect with novel applications of federal criminal law. While we hope that our brief will ultimately be allowed as a combined brief, delivered to the court, we are releasing it today so that stakeholders can evaluate our analysis and understand what is at risk. We encourage regulators, legislators, and fellow industry groups to read it closely and join us in calling for clarity, proportionality, and respect for constitutional due-process limits.
Why this Matters
- FinCEN, not DOJ, sets the line between innovation and illicit finance. For more than a decade, FinCEN has said that only entities that accept and transmit customer funds – or exercise “total independent control” over them – are “money transmitters” subject to Bank Secrecy Act registration. Software developers who never touch user assets are not. That bright-line standard is the foundation on which legitimate wallet, payments, and privacy-enhancement tools have been built.
- DOJ is trying to redraw that line by indictment. The government now claims that merely facilitating peer-to-peer transactions can be criminal money transmission, even when the developer lacks custody of the funds. This about-face contradicts FinCEN’s rules, overwhelms due process notice requirements, and risks criminalizing software-as-speech.
- The chilling effect is real and immediate. If writing non-custodial code can trigger felony liability, the United States will continue to bleed talent, capital, and strategic advantage to friendlier jurisdictions – a trend already reflected in the 51% drop in the U.S. share of blockchain developers since 2015.
Substance of the Brief
Samourai’s code never controlled user Bitcoin and therefore cannot be a “money transmitting business” under 18 U.S.C. § 1960; criminal liability built on a brand-new interpretation of FinCEN’s regulations violates both the statute’s text and basic principles of fair notice.
The Path Forward
- Courts should dismiss Count II and reaffirm that custody, not code, triggers money-transmitter status.
- Congress should codify market structure through the CLARITY Act to eliminate regulatory whiplash and preserve the United States as a hub for responsible digital-asset innovation.
- FinCEN should restate, publicly and unequivocally, that software alone is not money transmission, ensuring that developers operate under clear, consistent rules rather than shifting prosecutorial theories.
Commitment to Constructive Engagement
The Digital Chamber is a non-profit trade organization committed to promoting blockchain adoption. We envision a fair and inclusive digital and financial ecosystem where everyone has the opportunity to participate. Access to digital assets is not merely a technological advancement but a fundamental human right, crucial for economic and social empowerment. Through targeted education, advocacy, and strategic collaborations with government and industry stakeholders, we drive innovation and shape policies that create a favorable environment for the blockchain technology ecosystem.
For media inquiries, please contact press@digitalchamber.org.