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Is Code Protected by Free Speech?
Ryandav writes "An
excellent article for discussion has been put up on ars
technica reguarding how we look at code, whether or not
code is a form of speech, and therefore protected under
those same laws. " Thats the debate isn't it? Upon
it hangs encryption law, software patents, and much more.
Doesn't matter. It's already been decided by the Supreme Court that expression counts as speech. To give an example: flag-burning. It can be done without speaking a single word, yet the Supreme Court has decided that it is still protected by the First Amendment. Therefore, it doesn't matter if code is speech or expression, it'd still be protected.
Now, here's the argument against it: people claim that source code is a device, not speech. Certainly this is true of compiled code; it does something. But I'd love to see you boot a Linux kernel using only the course, without compiling it first. It does not work. Why? Because source code is nothing more than instructions for the compiler to create the device, not unlike a recipe. Therefore I'd say it's a form of expression, and consequently is protected.
But what do I know; I'm not one of the technologically clueless lawmakers out there today.
I notice people saying how you can't shout "Fire!" in a crowded theater when there is no fire and such things, pointing to those as how free speech could be limited. This is not really true. THere are absolutely no limits of speech in this country, nor should there be. However, if you commit a crime with that speech, the first amendment will not save you The "Fire!" example is a case of disturbing the peace; you have the right to free speech but you do not have the right to commit a crime with that speech. The same goes for selling state secrets. It is not a crime to speak, but it is a crime (not to mention a breach of contract) to tell those things to unauthorized persons.
Can a crime be committed with source code? Possibly. I don't see how, but it's possible. And if such, it could still be prosecuted even if software were protected by the first amendment.
Certainly programs can be contrived that output an artwork. However, programs are themselves art, in the same way that a play is. You might object that programs are merely industrial design, but why then is art afforded a protection that is denied its more practical sibling, and who is to distinguish the two?
Bruce Perens
Bruce Perens.
I don't think source code is any more a form of speech than a recipe for a cake, a set of instructions to make a bomb, or a to-do list to get one through a day.
That being said, I also don't think the government is in the right to restrict the dissemination of source as pertaining to encryption, which seems to be the issue that incited this case.
I don't think the government would restrict or care to restrict anyone from posting source or code on how to compress data, filter images, sort lists, etc. The government specifically thinks that encryption is some sort of weapon, and one that should not be allowed outside our borders, much like techniques to purify uranium or to increase the efficiacy of a fusion/fission thermonuclear device.
Similarly, it would seem that, in a hypothetical case, they would limit the ability of encryption and security experts to travel, again for national security reasons.
The argument that source code is a form of speech and protected as such is an appeal to the dissemination of ideas and thought as a universal right, and that telling/showing someone how to encrypt data securely is perhaps akin to telling/showing someone how to keep their houses secured. I'm not sure that the government would make such an issue if it were an abstract, publication, or essay, with source fragments and descriptive passages, describing encryption and security.
However I also feel that even if that were the case, an issue of detail and intent, I believe that the government is only hurting our country and our electronic future by being so protectionist about security and encryption. I can understand if it were an issue on thermonuclear warheads, as the device and its usages are all destructive and damaging, but not if it were information about the safe handling, usage, and construction of nuclear powerplants.
In the same way I don't see that encryption and related issues can be treated as weapons, but as tools. If this were source on viruses and ilk, it would be a much nastier issue, but security and encryption as such, while applicable to non-friendly or dangerous intent, is in of itself not something that is a threat to the security of the US. Financial transactions, industrial communication, even governmental transactions all benefit from a wider dissemination of encryption and security. It would be a case of protection from hostile intent, rather than attack from hostile parties, that security and encryption seems to deal with.
My 2 cents
AS
-AS
*Pikachu*
For some cases I would agree wholeheartedly that programming is an art; a well designed VLSI chip, and elegant algorithmic solution, a concise and effecient snippet of code involve artistic talent and effort, as such. But I would not classify that the finished output, the program, the chip, the code, as art.
The intention of art is not in its application, whereas in computer code the application is inherent in the design and implementation, and thus engineering. A painting, like code, is commissioned and paid for, but the value of a painting is the painting itself, whereas the code in of itself does not have any value except perhaps in aesthetic appreciation by fellow programmers.
There are some disciplines in which the boundary is shady, like architecture or aircraft or consumer appliances, in which the appearance plays as fundamental role as the application. Code however doesn't seem to fall under this umbrella.
Perhaps if you were to distribute and send encryption or security code as a tribute and example of excellent code, it would pass under free speech, but working and real code would rarely qualify I think.
AS
-AS
*Pikachu*
Well, then so should source code for encryption be protected; but despite that, the government 'issue' against encryption seems archaic, backwards, and harmful to our own economy and society.
AS
-AS
*Pikachu*