EFF On Why FBI Can't Force Apple To Sign Code (boingboing.net)

New submitter Kurast writes with this article at Boing Boing: Code is speech: critical court rulings from the early history of the Electronic Frontier Foundation held that code was a form of expressive speech, protected by the First Amendment. The EFF has just submitted an amicus brief in support of Apple in its fight against the FBI, representing 46 "technologists, researchers and cryptographers," laying out the case that the First Amendment means that Apple can't be forced to utter speech to the government's command, and they especially can't be forced to sign and endorse that speech. In a "deep dive" post, EFF's Andrew Crocker and Jamie Williams take you through the argument, step by step. (You can follow along by reading the brief itself (PDF), too.)

Comments

"deep dive"

[Gravis Zero]

so that's what their calling 50 page walls of text these days, eh?

Re:Right Answer, Wrong Method

[Anonymous Coward]

But, code is not speech.

Yes it is. This is a legal question that's been settled already by several cases. Here's a quote from one of them (Universal City Studios vs Corley)

Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in “code,” i.e.,symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone chose to write a novel entirely in computer object code by using strings of 1’s and 0’s for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English.

Re: YES!!

[BlueStrat]

It died in 1913 with the establishment of the Federal Reserve but few were willing to accept the fact until '64, when we enjoyed a coup and had our coinage debased.

Indeed.

For those who do not understand, try reading "The Creature From Jekyll Island" by G. Edward Griffin.

https://archive.org/details/Cr...

Strat

Re:Code is Speech. Code is Math.

[YouGotTobeKidding]

Actually that is a flawed argument. The Geneva treaty doesnt apply to anyone UNLESS they meet very specific requirements....which the git's all fail on. No uniform. Not a signatory of the Geneva treaties. The list goes on and on.

Maybe next time try and not get your talking points from Huff Po or Mother Jones m'kay?

Re:Code is Speech. Code is Math.

[mpoulton]

Look. I see EFF lawyers saying code is speech and is protected. And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection. I want an EFF lawyer to explain their stand on how these three mechanisms apply to code before this story gets posted AGAIN and it had better be consistent.

It's not the EFF that's inconsistent, it's the law. Things that are patentable (functional devices or systems) are not copyrightable (creative works of expression), and vice versa. The two systems are inherently designed not to overlap. That's why the EFF and others are upset about the apparent overlap in practice with respect to software. The EFF's perspective is that treating software as a functional device is wrong. It's speech, math, creative expression, a literal set of instructions, but not a "thing" which "does" something itself. Therefore, it is inappropriate to handle software through the patent system. To put a finer point on it, patents cover implementations of ideas, not the ideas themselves. You can't patent the idea of a new invention - you can only patent an actual implementation of it. The EFF's position is that software is strictly an idea, a communication of instructions. The instructions themselves are not functional or even tangible and therefore should not be patentable. Just like any other written information, it should be copyrightable if and when it constitutes a creative work. That's the EFF's argument, and it's a good one. And it is entirely consistent with their position in this amicus brief.