Specifically protecting code started with the 1995 case of cryptographer Daniel Bernstein, who challenged America’s “export controls” on encryption (which regulated it like a weapon). But they also spoke to technology lawyer Kendra Albert, a clinical instructor at Harvard Law School’s Cyberlaw Clinic, about the specific parameters of how America protects code as a form of expression:
Albert: I think that the reality was that the position that code was a form of expression is in fact supported by a long history of First Amendment law. And that it, you know, is very consistent with how we see the First Amendment interpreted across a variety of contexts…. [O]ne of the questions courts ask is whether a regulation or legislation or a government action is specifically targeting speech, or whether the restrictions on speech are incidental, but not the overall intention. And that’s actually one of the places you see kind of a lot of these difficulties around code as speech. The nature of many kinds of regulation may mean that they restrict code because of the things that particular forms of software code do in the world. But they weren’t specifically meant to restrict the expressive conduct. And courts end up then having to sort of go through a test that was originally developed in the context of someone burning a draft card to figure out — OK, is this regulation, is the burden that it has on this form of expressive speech so significant that we can’t regulate in this way? Or is this just not the focus, and the fact that there are some restrictions on speech as a result of the government attempting to regulate something else should not be the focus of the analysis?
Q: Congress and federal agencies as well as some states are looking to tighten regulations around cryptocurrencies and blockchain technology. What role do you think the idea of code as speech will play in this environment moving forward?
Albert: The reality is that the First Amendment is not a total bar to regulation of speech. It requires the government meet a higher standard for regulating certain kinds of speech. That runs, to some extent, in conflict with how people imagine what “code is speech” does as sort of a total restriction on the regulation of software, of code, because it has expressive content. It just means that we treat code similarly to how we treat other forms of expression, and that the government can regulate them under certain circumstances.
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