Infrastructure for Expressive Freedom
Research by Speech Without Borders
October 15, 2026
Abstract
The right to anonymous expression is broadly recognized as a core part of the First Amendment’s protection for speech and association in the United States. Beyond financial transactions, blockchains are used for expression and association, and where they are public, privacy technology is integral to those legitimate and constitutionally protected uses. Efforts to police illicit transactions may also inhibit the development of privacy technology. Privacy technology should be recognized and protected as infrastructure for expressive freedom. We offer this account of how First and Fourth Amendment principles may apply to emerging technologies, and how they might be extended by statute, to help advance and defend privacy as the law in this area evolves.
Part I. Summary
The United States is the only G20 nation without a comprehensive national privacy law. Americans should be able to more fully rely on the Fourth Amendment to protect them from unreasonable searches, but often cannot. For decades, data shared with any third party lost its protection. Courts have now rejected that rule for the ordinary use of phones and apps, yet legal protections still stop short of information disclosed openly, and a public blockchain is open by design.
The gap in protection persists because the government benefits from access to this information and private companies profit from collecting and selling it, including to the agencies that would otherwise need a warrant to obtain it. Alston and Cossar call this perverse alignment the institutional privacy dilemma, and it helps explain why federal privacy legislation keeps failing.
Our analysis focuses on areas where there are no trusted operators. People who build and run decentralized systems cannot arbitrarily change their rules or hand over user data they do not have, and attempting to regulate them as if they could would wrongly hold them responsible for systems they do not control. For that reason, new regulations on key disclosure, compelled data disclosure, or permissible software architectures may, intentionally or not, impair innovation and adoption of these technologies. People stand to lose the profound benefits these technologies can offer across a broad range of legitimate uses, including privacy, transaction execution, and cybersecurity.
Regulation by enforcement deters people from building and using legitimate privacy tools for lawful purposes. After Tornado Cash was sanctioned and its developers prosecuted, builders pulled back from privacy tools, and so did users.
The Ethereum Foundation has committed to privacy at the protocol level. Ethereum is general-purpose infrastructure that is public by default, so privacy has to be built in, as it should be in any technology that supports expressive activity.
While the Fourth Amendment still falls short of sufficiently protecting personal data, privacy has long been protected as part of the First Amendment’s freedoms of speech and association. Without that privacy, exposure deters participation. Considering that activities like funding causes and participating in governance are happening on Ethereum, they should be similarly protected, at the very least.
The internet carries ordinary commerce like banking and shopping alongside speech, publishing, and organizing, yet the Supreme Court gave it the First Amendment’s full protection without asking how much of its use was expressive. Ethereum is general-purpose infrastructure of the same kind, carrying payments and code alongside expression. There are strong arguments for extending similar protection to it, but courts are still working out how existing rights translate to these new technologies.
On Ethereum, a single transaction can be a payment, a vote, and a signal of membership and identity, all at once. In funding rounds where contributions double as votes, one transfer moves the money, helps decide which projects are funded, and permanently marks what the sender supports. Disentangling protected expressive activity from ordinary traffic would require reviewing every transaction for its purpose, which is the surveillance the First Amendment guards against. This entanglement argument is our most ambitious and not yet tested in court. Our claim is not immunity. The standard we propose in Part II preserves the government’s ability to pursue legitimate enforcement while barring the wholesale review that chills expression.
It is appropriate for privacy-focused projects to lead with privacy. Expression is only an additional tool, shaping how the ecosystem talks about, funds, develops, and organizes around privacy.
Protecting privacy through expressive rights can risk making privacy look merely instrumental, diminishing its value as an independent right. Yet where the Fourth Amendment falls short, this is the strongest protection US law presently offers, and the work of building privacy protections that stand on their own continues.
This structural relationship between speech and privacy should apply wherever privacy technologies support expressive activity. The AI tools people reason and draft with capture thinking in progress, and the dependence on privacy only deepens as augmented intelligence moves closer to the mind.
Part II develops these claims in detail, identifies the strongest objections, weighs the cost of grounding one right in another, and specifies where the reasoning remains untested.
Part II. Analysis
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