In the digital era, code is not merely a set of instructions for a computer, but a medium of expression, a tool of creation, and a conduit for innovation. It is the language through which we shape and interact with the digital world, transforming abstract ideas into tangible applications. Code allows for the creation of everything from simple websites to complex machine learning algorithms, from video games to business software, and everything in between.
At its core, code is a language. Much like English, Spanish, or Mandarin, it has its own grammar, syntax, and semantics. It allows for the communication of ideas, albeit to machines rather than people. Its purpose is expressive, enabling the articulation of complex concepts, solving problems, and ultimately enabling innovation.
In light of this, a compelling argument emerges – if code is a language, and it is used for expressive purposes, should it not be considered speech and, as such, protected under the First Amendment of the United States Constitution? This argument acknowledges code as more than just a tool; it positions code as a significant form of expression that, like other forms of speech, warrants the protection offered by the First Amendment.
Understanding code as protected speech would affirm the crucial role it plays in our digital society. It would ensure that individuals can freely express their creativity, share their knowledge, and contribute to the growth of the digital landscape without undue restrictions. However, this perspective also necessitates careful consideration of the implications and potential challenges that could arise, as code’s unique nature introduces complexities not found in traditional forms of speech. Despite these complexities, the central argument holds: code, in its role as a conduit for creativity, expression, and innovation, deserves recognition as a form of protected speech under the First Amendment.
The issue of code as speech is not a recent one; it has its roots in important legal cases and key moments in the history of digital technology. One such legal case that significantly influenced this narrative is Bernstein v. United States. Daniel J. Bernstein, a Ph.D. student in Mathematics, took on the United States government in the 1990s over a regulation that classified his cryptographic software as a “munition,” thereby restricting its publication under the International Traffic in Arms Regulations (ITAR).
Bernstein argued that this regulation curtailed his First Amendment rights, preventing him from sharing his encryption program and associated academic research. In a landmark ruling, the Ninth Circuit Court of Appeals sided with Bernstein in 1999, recognizing that software source code should be regarded as speech protected under the First Amendment. This decision set an important precedent and provided substantial weight to the argument that code is a form of speech.
Around the same time as Bernstein’s case, a broader conflict known as the Crypto Wars was unfolding. During this period, the U.S. government sought to limit public access to robust encryption technologies due to concerns about potential use by criminals and adversaries. Conversely, digital rights advocates contended that citizens should be allowed to use encryption to safeguard their privacy and security. This debate brought the question of code as speech into the public spotlight and paved the way for future discussions on this subject.
Even though Bernstein v. United States and the broader context of the Crypto Wars provided a robust foundation for considering code as speech, the evolution of technology has brought new layers of complexity to the argument. As we continue to rely on digital technology in new and more intricate ways, the nature of code, its functionality, and its implications become more entwined with issues of personal freedom and the broader societal context. However, these complexities should not obscure the central point: code, in its essence, serves as a medium of expression, and as such, it deserves the protections offered to other forms of speech.
The narrative on whether code is speech continues to unfold with several notable events and cases serving as key waypoints in recent years.
A prominent example is the case of Cody Wilson, founder of Defense Distributed. Wilson sparked considerable debate when he published designs for 3D printable firearms online. After the United States State Department ordered the removal of these designs, citing a violation of export controls, Wilson pushed back, invoking his First Amendment rights. He contended that his code, the blueprints for 3D printed firearms, was a form of speech and thus should be protected. This case marks an evolution in the ongoing discussion, demonstrating how the question of code as protected speech is just as relevant today as during the Bernstein era.
In the digital realm, the launch of former President Donald Trump’s social media platform, Truth Social, presents another intriguing case. The platform is built on open-source code, a publicly accessible type of code that anyone can inspect, modify, and distribute. This utilization of open-source code contributes to the dialogue about code as speech, highlighting how such principles can impact the use, distribution, or alteration of digital products and platforms.
The debate extends into the realm of artificial intelligence as well. As AI systems advance, the decisions made by these algorithms could be considered as their “speech”. As such, there is an ongoing conversation around whether the First Amendment protections should apply to these algorithmic outputs.
Amidst these varied contexts, one fundamental belief remains unwavering and unyielding: code is a form of protected speech. It embodies creativity, expression, and innovation, and as such, the consensus firmly upholds the principle of its protection under the First Amendment. This steadfast conviction underscores the significant role of code in the digital age, reflecting the inflexible and incontestable nature of its status as protected speech.
Recognizing code as a protected form of speech could have a profound impact on the landscape of digital communication, leading to significant changes in censorship, privacy, and technology laws.
An important potential outcome of this is increased openness in sharing information and ideas. Protection of code as speech could inhibit the capacity of governments and corporations to censor digital content, thus fostering a more open and democratic internet. This protection could prevent the suppression of innovative technologies, allowing for the free flow of ideas and creativity in the digital realm.
Privacy laws could also undergo significant changes. Encryption technologies, which form the backbone of digital privacy, are a product of coding. By establishing code as protected speech, these technologies could receive additional legal protection, further securing the privacy rights of individuals in the digital space.
Simultaneously, this perspective could provoke challenges in the realm of regulation and intellectual property laws. Since code forms the blueprint of digital products, its protection could limit the government’s ability to regulate harmful technologies or protect intellectual property rights. It could lead to an increasingly complex and uncharted territory in the realm of law and regulation.
Despite the benefits of free expression and openness, there are potential risks to consider. Notably, the recognition of code as protected speech could potentially embolden actors with malicious intent. It could inadvertently provide legal cover for activities that compromise cybersecurity or national security, such as the dissemination of malicious code or the development and distribution of weapons through 3D printing technology.
The tension between the values of free expression and the realities of security considerations underscores the need for a delicate balance. While freedom and openness are paramount, the potential risks of this freedom must be thoughtfully addressed to ensure a secure and stable society.
As technology continues to evolve, the discourse around code as speech will persist. Striking the right balance between the unassailable belief in freedom and the practical need for safety will remain a formidable challenge for lawmakers, technologists, and society at large. This continued debate, this perpetual search for balance, epitomizes the dynamic nature of our digital age and the enduring value of free speech in an increasingly connected world.
Lukas, a trailblazer in the world of tech, spends the majority of his time immersed in coding and hacking, relentlessly fine-tuning the digital landscape. His considerable talents have been channeled into open-source platforms, specifically those geared towards the enhancement of 3D-printed firearms, in the spirit of fostering innovation and safeguarding individual liberties. A strong advocate for the dissolution of centralized bureaucratic entities, he is a vocal critic of government-controlled ‘three-letter agencies’. An astute crypto investor, Lukas’ financial acumen has seen him consistently outperform the NASDAQ in recent years, a testament to his unconventional yet highly effective investment strategies.