Christopher Rojas 

11/20/2024 

Is Source Code Free Speech? 

Neal Boortz once said, “Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection.” To protect the individual rights of United States citizens, the Bill of Rights was added under the U.S. Constitution in 1791. The very first amendment established the right to freedom of religion and freedom of speech without government interference. With this in mind, it is important to clarify that the First Amendment does not afford protection to every category of speech. The government may still interfere and prohibit some free speech, such as “speech that may cause a breach of the peace or cause violence”. (‌Cornell Law School) In present times, source code has become a new way of structured communication akin to words and actions. Source code is a written language used in technological devices such as computers and can be protected under the First Amendment as a form of free speech. However, similar to other forms of free speech, whether it is protected under the First Amendment depends largely on the nature of its intent. Cases such as the DVD Copy Control Association, where trade secrets were allegedly disclosed, could possibly have an impact on the protection the First Amendment provides. Source code, such as encryption software, has also been under scrutiny over concerns of national security and has faced difficulties in its dissemination to a broader audience. Ultimately, source code can be considered a form of free speech and be protected under the first amendment. However, malicious intent combined with violations of established laws could prompt government prohibitions along with restricting its circulation. 
To determine whether source code can be classified as free speech, it is important to understand what constitutes as source code and the role it plays as a form of communication. Source code can be defined as a set of human-readable instructions written in a programming language, meant to give instructions for the functions of software. Said software then executes using a computer or other technological device as a medium. Similar to how humans use language to communicate with each other verbally, source code can instead be used to communicate with computers to perform specific functions. In the case of Bernstein v. Department of Justice, Bernstein, a graduate student wishing to share the algorithm, mathematical explanation, and source code of his encryption algorithm, was prohibited from doing so by “the Arms Export Control Act and the International Traffic in Arms Regulations that required Bernstein to submit his ideas to the government, to register as an arms dealer, and to obtain a license to publish his ideas. Failure to do so would result in severe civil and criminal penalties. (EFF) The court later ruled that the laws prohibiting the publishing of his work were unconstitutional and thereby violated the first amendment. This had significant implications on the legal digital landscape, as it meant that source code, for the first time in a legal setting, was considered a form of speech protected under the first amendment. (Release) 
There have been many legal cases similar to Bernstein v. Department of Justice. Johansen, Phil Zimmerman, and Peter D. Junger have all been involved in the legal argument of whether source code can be considered free speech. Resembling the Bernstein case, in Junger v. Daley, the source code of an encryption software made by Peter D. Junger faced legal constraints when attempting to publish his software online. Junger argued the inability to publish his works online without a license was “an unwarranted intrusion into his Constitutional free speech rights.” (Mendels) The judge in their ruling against Junger then argued that source code could not be considered “speech” since it was not legible by those outside of the computer world and was more analogous to telephone circuitry. Junger’s lawyers retaliated by comparing source code to other forms of protected speech. “If there were a First Amendment requirement that is met only if the majority of people understand the speaker’s message, then a speech in Navajo and the musical score of Beethoven’s Ninth Symphony, all of which are understood by relatively few people, would fall beyond the protection of the First Amendment.” (Mendels) They also emphasized the nature in which source code is a form of expression. The court later ruled in favor of Junger, reinforcing the principle that government restriction on source code violated the first amendment. As for the Phil Zimmerman case, where Zimmerman was investigated by the government for allowing the distribution of his encryption software, a discussion emerged regarding the nature of encryption. Encryption is fundamentally based on math equations and algorithms; therefore, “restricting or banning it isn’t that much different than banning the knowledge that two plus two equals four.” (Gimon)  
There are also cases where the First Amendment protection and trade secrets of source code conflicted. Mentioned in DVD Copy Control Association v. Bunner, Norwegian 15-year-old, Johansen reverse-engineered CSS software to create DeCSS in order to play encrypted DVDs through Linux. Although Norwegian law allowed for reverse engineering of software regardless of end-user license agreements. In the U.S, Bunner was facing charges that he claimed violated his first amendment rights for the online dpublishing of trade secrets. DeCSS was ruled speech under the first amendment regardless of author or, in this case, publisher. However, DVDCCA argued that DeCSS was not sufficiently expressive “because it is composed of source code and has a functional aspect”; the U.S. refuted that claim, stating that “the fact that a medium of expression has a functional capacity should not preclude constitutional protection.” (DVD Copy Control Association v. Bunner) With the expression of DeCSS established, it was concluded that preventing Bunner from disseminating DeCSS source code would violate his right to free speech. 
Having established source code as being free speech, it is important to consider the involvement of malicious code and its dissemination. Malicious code is best described as code that can cause damage or disrupt operations of technological devices or systems. Examples of malicious code include ransomware and spyware. These types of malware can result in damage to technological devices, financial loss, as well as invasion of privacy. In terms of ransomware, it is best explained by comparing a computer or device to a hostage. Usually requiring a monetary payment to be “freed” or, in this case, restore access to the user. Secondly, spyware can be used to invade an individual’s privacy via technological devices. Activities such as web browsing and general use of a technological device could be monitored. As well as private information stored in the device, such as pictures or documents. It is also possible to actively surveil an individual or others via a video camera installed in the device. This can be considered a profound invasion of personal privacy. Thus, to compare source code to language also applies the legal limits of free speech. The “yelling fire in a crowded theater” analogy can be used to illustrate that free speech has limitations and depends on circumstances as well as intent. Similar to malicious code, yelling fire in a crowd can lead to harm; therefore, it is restricted by law even if free speech is protected by the first amendment. Certain categories like fighting words and true threats are outside the scope of First Amendment protection. Fighting words refer to “likely to provoke the average person to retaliation and thereby cause a breach of the peace.” (Ahluwalia) With the above stated, authors of malicious code could potentially not have the constitutional right to disseminate their creations if they’re explicitly intended to cause harm. The Computer Fraud and Abuse Act addresses cyber-based crimes and criminalizes the unauthorized access and damage of technological devices, networks, and data. Including, “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization to a protected computer”. (Cornell Law School) The key wording of this act lies in the intent of the dissemination. Malicious intent and potential harm null constitutional protection. Dissemination of malicious code with the intent of educating or advancing security research, on the other hand, would be protected under the First Amendment. 
Given the complexity and intent when disseminating malicious code. It is best to refer to a case-by-case basis and examine the intention in which the malicious code was distributed. “Source code enjoys constitutional protection, which has implications that reach far beyond cases involving the export of cryptography and lays the groundwork needed to expand First Amendment protection to electronic communication.” (EFF) Ultimately, source code can be protected as free speech, but with regulations to prevent damage to unauthorized technological devices, financial loss, and invasion of privacy. 

Works Cited 

Ferrera, Gerald R. Cyberlaw : Text and Cases. South-Western Cengage Learning, 2012. 

Wikipedia ‌“Center for Democracy and Technology.” Wikipedia, 20 Oct. 2022, en.wikipedia.org/wiki/Center_for_Democracy_and_Technology. 

Mendels, Pamela ‌“Professor Argues for Free Speech in Computer Tongues.” Archive.nytimes.com, archive.nytimes.com/www.nytimes.com/library/tech/99/03/cyber/cyberlaw/05law.html. 

Gimon, Charles A.  ‌“Phil Zimmerman Investigation Dropped.” Skypoint.com, 2024, www.skypoint.com/members/gimonca/philzim2.html. Accessed 23 Nov. 2024. 

Gimon, Charles A.“The Phil Zimmerman Case.” Www.skypoint.com, www.skypoint.com/members/gimonca/philzima.html. 

Harmon, Amy “Lawsuit Tests the Power of Media Companies to Control Access to Digital Content.” Nytimes.com, 2018, archive.nytimes.com/www.nytimes.com/library/tech/00/07/biztech/articles/31rite.html. Accessed 23 Nov. 2024. 

DVD Copy Control Association v. Bunner, “Software as Free Speech – DVD Copy Control Association v. Bunner, No. H021153 (Cal.App. Dist.6 11/01/2001).” Biotech.law.lsu.edu, biotech.law.lsu.edu/cases/IP/conlaw/dvdcca.htm. 

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‌Cornell Law School. “First Amendment.” LII / Legal Information Institute, Cornell Law School, 21 Sept. 2019, www.law.cornell.edu/wex/first_amendment. 

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EFF “Bernstein v. US Department of Justice.” Electronic Frontier Foundation, 1 July 2011, www.eff.org/cases/bernstein-v-us-dept-justice. 

Release, Press. “Federal Court Denies Government’s Motion to Dismiss Bernstein Case, Acknowledges Source Code as Speech.” Electronic Frontier Foundation, 17 Apr. 1996, www.eff.org/press/archives/2008/04/21-40. 

 Ahluwalia, Balrina “First Amendment Limits: Fighting Words, Hostile Audiences, and True Threats.” Findlaw, constitution.findlaw.com/amendment1/first-amendment-limits–fighting-words–hostile-audiences–and-t.html. 

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‌Cornell Law School. “18 U.S. Code § 1030 – Fraud and Related Activity in Connection with Computers.” LII / Legal Information Institute, 2014, www.law.cornell.edu/uscode/text/18/1030.