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.

Comments

this "virii" is really starting to tick me off..

[Anonymous Coward]

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.

But they are not incompatible.

[FallLine]

It is not "my" use. The previous comment before me indicated that only the "use" of a thing should be illegal, never the thing itself. He said:

"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.

You said:

Yes, you should be able to build it. If, in the process, you kill others, or cause other damage, then you will need to answer for the consequences of your actions.

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.

The test that you suggest, "what is the net effect on society", sounds absolutely horrific to me. One of the principles that the U.S. was founded upon was that individuals have rights. [1] Related to this is the notion that individuals do not exist to serve the whole, but, rather, that the government is established to secure the rights of individuals. The day that we are governed solely by the "net effect on society", without regard to individual rights, is the day that we need a fresh revolution.

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

Analogy #1: Yelling "Fire" (a shocker!)

[orpheus]

1. You can't yell [falsely] "Fire" in a crowded theatre.

[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 ... have argued some other points also of which we must dispose.

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.

__________

How expressive is it?

[gregbaker]

For me, this questions come down to this: Just how well can people express themselves using code?

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

Your mistake

[Greyfox]

Many of you seem to be mistaking compiled binary code with source code. I'd expected more from the Slashdot audience. Let's go over this one more time...

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.

Use determines legality

[gclef]

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?)