The courts and the scientific world are debating whether or not computer source
code is "speech" for First Amendment protection purposes. The controversy centers
around the judicial efforts to reconcile the functional and expressive aspects
of source code and fit software within the established constitutional framework.
Courts of different jurisdictions have produced alternative interpretations, most
recently in cases concerning export restrictions on encryption technology. In
Bernstein v. United States Department of Justice, the Ninth Circuit Court
of Appeals held that encryption software, in its source code form, is "expression"
for First Amendment purposes, and thus is entitled to the protections of the prior
restraint doctrine.
The Court rejected the government's position that source code is uniquely functional
and different from other forms of expression in that it directs a computer to
perform. In distinguishing between source code and object code, the court stressed
that source code "is meant to be read and understood by humans, and cannot be
used to control directly the functioning of a computer."
Alternatively, the federal district court in Junger v. Daley, concluded
that while source code can "occasionally have communicative elements", it is not
sufficiently expressive to be protected by the First Amendment.
The Court of Appeals for the Sixth Circuit, however, was not persuaded by the
district court's conclusion that the functional characteristics of source code
overshadowed its expressive nature.
The appellate court held that as an "expressive means for the exchange of information
and ideas about computer programming", computer source code is protected by the
First Amendment.
In Karn v. United States Department of State, the District of Columbia
District Court did not directly address the issue of whether source code is "speech."
Instead, the court held that government regulation of encryption software did
not violate plaintiff's free speech rights since it was content-neutral and tailored
to the government's interest in national security. Nevertheless, the court noted
that source codes are "merely a means of commanding a computer to perform a function."
The plaintiffs in all three cases argued that source code is speech and thus,
deserving of First Amendment protection. The scientific community continues to
insist that source code is a "novel formal medium for expressing ideas about technology"
and only incidentally functional in that it instructs machines to execute.
The argument that source code should be treated as fully-protected speech conceptualizes
source code as the "convergence of scientific expression, alternative language
and instructional literature" and thus, clearly within the scope of the First
Amendment.
Whether the courts recognize source code as intrinsically expressive versus inherently
functional, has substantial implications. The initial classification of source
code triggers a different level of scrutiny in First Amendment challenges - higher
level of scrutiny if the regulation pertains to source code viewed as "speech"
and lower level of scrutiny if the restriction pertains to "conduct" or "utilitarian
product." The different levels of scrutiny ultimately determine the degree to
which the government can regulate publication of source code since a higher scrutiny
can largely insulate certain computer code or software from government restrictions.
In turn, the level of regulation will affect substantially the way scientists
publish their ideas and methodology.
The question of whether source code constitutes "speech" recently emerged in the
context of the publication of Decrypted Content Scrambling System in Universal
Studios v. Corley.
As technology evolves, the issue of courts' classification of source code as "speech"
or "conduct" will likely appear even more often in judicial decisions about software
regulations. While currently source code remains a mystery to those not trained
to communicate in it, scientists urge us that it is only a question of time for
computers to understand English.
The courts will then face an entirely new challenge in balancing between expression
and utility.
