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Code As Free Speech -- Pandora's Box?
Blake Watters asks: "Following yesterday's ruling in Federal Court that source code is free speech and thus protected by the Constitution I was at first rather elated, and then a bit edgy. It seems to me that perhaps this ruling could represent a real bombshell. Are we now to assume that the source code to virii are the same plane as say, angry adolescent poetry? Or perhaps software cracks can now be viewed legally as civil disobedience for the digital era -- a charming rebuttal of the profiteering capitalist gluttons dominating the Age of Silicon? Any legal minds out there care to offer some perspective?" In the age of the DMCA and the UCITA, such a ruling is a much needed breath of fresh air.
IANAL.
It seems to me that source code to viruses and other less-than-savoury speech should be just as protected as people that say things that we don't like. However, we have laws in place to prevent people from actually using those viruses. And we have anti-piracy laws (and open-source!) to take care of software cracks.
Speech is protected, as it should be. What you do with it is what counts.
-Waldo
IANAL, and this is not intended to be a full discussion of the topic. It is only a mild 'eye-opener' (I could have used more shocking examples). The broadcast media of the past is a warning to the Internet of today
This post covers CBS, Inc. v. Democratic National Committee, 412 U.S. 94 (1973). In 1970, the Business Executives' Move for Vietnam Peace (BEM) complained to the FCC that radio station WTOP (Wash,DC) refused to sell it airtime for a series of one-minute spots expressing BEM's views on Vietnam. Four months later, the DNC wanted to buy airtime to express the Democratic patrty's views on Vietnam. Both parties lost. The Supreme Court ruled that no individual or organization had a "right" to express "editorial" views on the public airwaves.
In a famous ruling, they found that the Communications Act of 1934 abridged such right of free speech by giving preferential treatment in the form of broadcast licenses and simultaneously rejecting the "common carrier" model. If you read this ruling, you'll find that much of what you thought you knew about free Speech and public media is very possibly wrong.
Am I the only one who finds the following quote chilling: Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The [First] Amendment should be interpreted so as not to cripple the regular work of the government... Although free speech should weigh heavily in the scale in the event of conflict, still the Commission[the FCC] should be given ample scope to do its job. In other words, "this would be too much work for the FCC (and might reverse some of its policies). Rather than adjust the FCC, we will curtail First Amendment rights
I can only agree with Justice brennan's dissent: "[W]e have consistently held that 'when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself." and "the Government has selected the persons who will be permitted to operate a broadcast station, extensively regulates those broadcasters, and has specifically approved the challenged broadcaster policy. . . . the Government 'has so far insinuated itself into a
position' of participation in the challenged policy as to make the Government itself responsible for its effects."
In other words, the FCC (as noted in the 1973 ruling) has a deliberate, mandated right and interest in making sure that the station's broadcast content is "accountable". The majority decision complained "No such accountability can be attached to an individual, whose only qualifications [to have an 'editorial opinion' aired] is sufficient funds [to buy a 60-second spot] and a point of view" Those unaccountable animals! who knows what they might say!
Please note, that no one ever said radio stations had to accept all comers (or we'd have 24 hour crackpot radio). The DNC/BEM only argued that all comers should have equal access to purchasing radio time. In other words, that stations should not be allowed to refuse to sell a given advertising minute to a 'editorial' if they'd happily sell that same minute to GE to sell lightbulbs.
As Justice Brennan said:
[A]s the system now operates, any person wishing to market a particular brand of beer, soap, toothpaste, or deodorant has direct, personal, and instantaneous access to the electronic media. He can present his own message, in his own words, in any format he selects, and at a time of his own choosing. Yet a similar individual seeking to discuss war, peace, pollution, or the suffering of the poor is denied this right to speak. Instead, he is compelled to rely on the beneficence of a corporate 'trustee' appointed by the Government to argue his case for him.
[1]
This footnote deleted for space, but damn! it was a good one[3]
[2]
Damn! This one too!
[3]
Okay, one snippet of [1]:
The ruling notes that "...47 U.S.C. 202 provides that: '(a) It shall be unlawful for any common carrier to... make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.' In rejecting the common carrier model, Congress rejected a sanction that could have been used against any government-licensed broadcaster who did give an "undue" or "unreasonable" preference or advantage to a particular class of persons. The rejection of the common carrier model allowed, therefore, not only censoring of speech, but unreasonable censoring of speech."
__________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
How can code be free speech? If I make a piece of hardware do exactly the same thing as a piece of software, does the piece of hardware become "speech"?
I would say probably not. The ruling linked to in the article above says that code is an expressive means of transmitting ideas about computer programming, essentially the algorithms. This means that compiled binaries, which are the end product and are not an expressive means of transmitting these ideas, are not protected under free speech. Similarly, hardware, which is not an expression of it's own design, will not be protected, though the plans and schema may be.
As a result, your average Windows virus is not protected, but there may be concern over macro and script viruses. In the end, though, virus source code may be treated like the infamous "Anarchist's Cookbook." The text is protected, but the use of many of the ideas and techniques within the book is still criminal.
On the other hand, does this mean that the GPL now has teeth, since derivative versions may not be stopped by the owner of the original version? Perhaps Mattel will have no recourse against CPHack since it has been spread across the community.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
You forgot the \n 's at the end of your printf's, as well as the ()'s for main...
Still, in the interests of open source, here is the reworked source...
void main (void)
{
printf("SLASHDOT SUCKS!!!\n");
printf("I PIMP TACO'S MOM!!!\n");
printf("SLASHDOT IS FOR COMMIES!!!\n");
}
Due to the viral nature of GPL, this is also GPL code. Although I dub it the "7337 h4xx0r d00d" release, which I believe is my right (if not I'm sure some
Thank _you_, AC Dr Kool. Glad to see your coding is as good as your spelling...
Strong data typing is for those with weak minds.
Strong data typing is for those with weak minds.
Just because Congress cannot pass a law abridging certain forms of speech does not mean the speech is protected from the courts. Congress != Courts.
If you yell FIRE! in a crowded place, you are willfully creating a public hazard; people will panic, people will rush around disorientedly, people will get hurt. By doing such a thing, you are acting against other peoples' rights, and are thus open to civil and criminal misconduct charges.
The speech is only one component of the act. The use of the speech for effect is still open for prosecution.
Saying "Here is an encryption algorithm, expressed in English, Sanskrit and Java" is protected. Saying "Here is a method to decimate people's hard drives with a virus, expressed in English, Sanskrit and Java" is protected.
Using either algorithm, or employing a computer to use the algorithm, to damage other people's property or to circumvent other standing laws, is not protected by the Constitution, and is therefore open game for any legislation enacted by Congress, Statute or Code; and to any civil damage arguments as well.
[
The court ruled in the specific instance of encryption, where the code was being distributed in order to facilitate understanding by other humans. The court's reasoning was along the lines of "you can't talk about an algorithm without supplying code." It's unlikely this would apply to, for example, a program to convert Paint Shop Pro to the registered version -- you aren't trying to communicate to another person how the protection method works in PSP, you're just distributing a program to defeat it.
DeCSS is a much stronger candidate, but that's a trade secret issue, not really a free speech issue (at least according to the courts so far). Which is the screwed up thing, because the whole idea of trade secrets is that if you fail to protect it, it's no longer a trade secret -- that's what patents are for.
--Kevin
A short examination of the law should ease your fears. The US Courts have generally held that there is no protection for speech that is intended to cause harm. You can point to both the Constitution, Supreme Court rulings, and many laws that illustrate this. Key examples are:
- Fraud. False speech intended to cause harm can be criminal. This extends into things like false advertising, etc.
- Libel and Slander, where again false speech intended to cause harm can be cause for civil actions.
The legal grey zones tend to be those where intent or harm is unclear, and those where intent may include political purposes. But even with political speech, the free speech protections are quite limited when harm is involved. The grey zones are in things like signs and sound trucks, where the harm is visual and aural pollution. When the harm reaches the level of property destruction or personal injury, the free speech protections are not exemptions from civil actions and criminal prosecution.
Stop with the pseudo-intellectual "virii" already. The plural of "virus" is "viruses" -- at least in English. Latin itself had NO (known) plural for virus; "virus" itself is one of a few odd nouns which were neuter second declension nouns with nominatives ending in -us. The only noun out of those with a plural was "pelagus" (sea), whose (nominative) plural was "pelage." Since Latin didn't have a plural for "virus" (since in Latin it was a mass noun meaning "sludge" or "poison") the proper thing to do is to form the English plural.
You said:
I could take this view if you could build a bomb in a vacuum, such that nothing you do affects anyone else. But this is not the case. The government punishing wackos after they destroyed a million+ lives is not going to be an effective means of deterrence. The benefits we recieve from allowing individuals (e.g., a few geeks may get some satisfaction) to own such destructive devices are far far outweighed by the risks and the costs on society. In other words, the net effect is drastically negative.
My "net effect" and and "individual rights" are not necessarily incompatible, in fact, they are normally one in the same. What the masses (or the "government") may want in the short run, is not necessarily a positive net effect, even if it outweighs the objections to it (in terms of severity x number of objections). In other words, the "net effect" takes individual rights into heavy consideration. It is important to note though, that amongst our "rights" is the right to live. If the mere act of punishing pyschos is insufficient to protect the sudden and drastic loss of millions of lives, then it is prudent to deny all the H-bomb, even those who intend no evil.
To clarify, I would never argue that because 90% (or any other number) of the US (e.g., Christians) feel the Jewish religion is offensive, all Jewish people must worship in private. This would set a bad precendent, and put everyone's rights at risk, and thus would be a negative net effect. The same argument simply can not be made with any real credibility for the existence of the H-bomb in society.
For your information even pure speech is not an absolute right in the US. You can you held responsible for libel. Commercial speech is regulated all the time. You can't yell fire in a crowded theater. You can't phone in bomb threats. etc. etc. etc. These all exist for good reasons. I'd rather they exist than not, no matter who I am, or what my: race, religion, creed, size, etc. are
[Schenck v. United States, 249 U.S. 47 (1919) ]
Most people would think this would merely cover viruses and other malicious code. However, the truth of this ruling is much darker and it's implications deeper
Interestingly, Schenk was an espionage case! [Espionage Act of 1917, a Federal law which, among other things, made it a crime to obstruct government draft recruiting and enlistment efforts]
Okay, so espionage is not free speech.
However, Schenck printed leaflets, mostly mailed to draftees. The front side contained the text of Section I of the Thirteenth Amendment to the Constitution, and the back side contained a text including passages like: "Do not submit to intimidation", "Assert your Rights", "your right to assert your opposition to the draft", and "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."
Schenck was convicted (and the conviction upheld) informing fellow citizens of their constitutional rights!
Further, as Justice Holmes wrote in the Supreme Court Decision: "The defendants were found guilty on all counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and
Many argue that "fire in a crowded theater may have been a common sense dictum, but it was written to support and perpetuate horrible miscarriages. For example, there was no finding that Schenk wrote anything false.
Justice Holmes crafted one of the most brilliant and memorable analogies in Supreme court history, then used it to justify one of the worst black moments in First Amendment History. [A week later, the Supreme court used this ruling to uphold the Espionage Act itself in Frohwerk v. United States, 249 U.S. 204 (1919), stating that the "First Amendment had been disposed of". The Law of the Land can change lickety split.] Of course, most people who have even heard of the later Alien and Sedition Act (of the following year) know what a terrible abuse it was.
Please propagate this information whenever you see the "fire in a crowded theatre" analogy used improperly. (which is most of the time) We geeks need to understand and explore the ramifications of the analogy, or it'll come back to bite us. The First Amendment is not the holy raiment some of us seem to think
Further, the First Amendment specifically addresses Congress and Federal Law. States have at various times argued (sometimes successfully) that they have deeper rights (under the reserved rights clause) to control free speech than the Feds do. I am sure that fact brings endless cheer to geeks in, say, Alabama [Hey, I was born in Georgia]
Finally, I close with more of Holmes words from the Schenk Decision:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. But when men have realized that time hasupset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
__________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
Consider the way people express their political views with DeCSS and the Mattel crack. That's at least as much a political statement as wandering around with a plackard. We protect that.
And, what about the act of coding itself? You certainly can't express the same things in code that you can using English--does that mean it's a lesser form of "communicating"?
I'd suggest not. How many of us have used works like "beautiful" to describe chunk of code or the algorithm that it represents? Those of us who program know that it's a creative process and that it feels more like writing prose than like balancing your checkbook. I think the non-programmers of the world would be surprised by that, but I think it's true.
So, I guess my answer to the question is "yes." If it looks like a duck, and acts like a duck...
Greg
Uncompiled source code is obviously speech. It is a means by which programmers communicate with other programmers. The whole reason high level languages evolved was so that other programmers could take over a project when the original ones left. There was a day when programmers wrote in machine code. That day didn't last long.
Machine code tells the machine what to do. As machine code is not intended to be read by a human, one could make an argument for it not being protected free speech.
A virus in source code form is a handy tool to see how they're written and to write programs to detect them. In this form they're completely safe. A compiled virus is another beast entirely.
Likewise, many would argue that the instructions you can find on the net to make bombs, crystal meth or the alt.suicide.holiday FAQs are protected free speech. I'd find far less use for any of those three things than I would with the source code for virusses, which at least present interesting technical reading.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
IANAL (you're gonna see that a lot in this one, I think), but I would like to see code be treated similar to various other tools, where use determines whether it's legal or not. Having a car is, for instance, legal. Killing someone with it isn't. Having L0phtcrack is legal, writing L0phtcrack is legal. Using it to break into a corporate office network isn't. That would make sense to me. (of course, why should the legal system make sense?)