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#1 Skydiver  Icon User is online

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Code is not speech?

Posted 29 February 2016 - 08:09 AM

Irregardless which side you are on the Apple vs. FBI case, this interesting discussion point comes out:

According to Benjamin Stuart, code is not speech:

Quote

“Code isn’t that — it’s a series of 1’s and 0’s. If I walked down the streets of Manhattan, and called ‘one,’ ‘zero’, ‘one’ no one could receive that message,” he said


So that pretty much invalidates this quote from Harold Abelson in "Structure and Interpretation of Computer Programs"

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“Programs must be written for people to read, and only incidentally for machines to execute.”


Does that mean if code is not speech, then the government, (or most any other entity) can shutdown websites that have dynamic content because the dynamic nature of the content is the result of code running? Sites with static content will be left alone because its just like publishing a newspaper where there is no code involved.

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#2 modi123_1  Icon User is online

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Re: Code is not speech?

Posted 29 February 2016 - 08:20 AM

Ir..regardless?!
Spoiler


The larger quote and the end of the last bit you had..

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According to Stuart Benjamin, a First Amendment scholar at Duke University, the outcome is not clear cut, especially as the Supreme Court has never ruled on the issue. He says that while lower courts have found on several occasions that code qualifies as speech, they have never adopted the broad arguments that Apple is claiming.

“Apple is treating it as a settled question. It’s not a settled question,” said Benjamin. “Think of how many activities are performed through computers talking to each other. Does that mean that regulation of all those activities implicate the First Amendment?”
...
no one could receive that message,” he said, adding, “I’m not sure how this will all come out.”


.. though I am unclear where the leap in logic means if code is not speak, but content is, how that means dynamic sites showing content would be in jeopardy.
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#3 Skydiver  Icon User is online

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Re: Code is not speech?

Posted 29 February 2016 - 08:28 AM

One would need to execute the code to show the dynamic content. If code is not free speech, the government could insert other code that prevents the code from executing. The host of the site can't complain that their first amendment rights are being suppressed because their code is being prevented from running.
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#4 modi123_1  Icon User is online

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Re: Code is not speech?

Posted 29 February 2016 - 08:34 AM

I am pretty sure that's not accurate nor sensible. In this case code would be the mechanism to dispense content and speech. More akin to evil actors coming in and wailing on my printing press with wrenches and blunt objects.. preventing me from dispensing my content and speech to the town square.

In the case of apple the code is a preventative locking mechanism that erases the data after X tries.
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#5 no2pencil  Icon User is offline

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Re: Code is not speech?

Posted 29 February 2016 - 11:13 AM

Until we are obligated to use iPhones, my opinion is that I don't see how freedom is speech is being denied. When one "opts" in, they do so under anything from a gentlemans handshake, a group held understanding, or a legal precedent Terms of Service.
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#6 Skydiver  Icon User is online

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Re: Code is not speech?

Posted 01 March 2016 - 07:58 AM

When I was a resident alien in the 90's, I technically could not compile or build and RSA code or any other strong encryption because aliens could not manufacture "munitions" legally as per the US laws at that time. I could read the source code all I wanted due to free speech rules, though.
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#7 snoopy11  Icon User is offline

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Re: Code is not speech?

Posted 01 March 2016 - 12:35 PM

Hmm code is most certainly a form of communication,

If speech is a form of communication that Someone can receive i.e. not anyone but Someone can receive and understand then code is a type of written speech.

Modern code is not 1's and 0's no one programs or communicates programs to another like that.

That statement just shows how uneducated Benjamin Stuart is.

He may go down the streets of America shouting Swahili with no one in America understanding him.

This does not mean that Swahili is not a form of speech however, his argument is weak.
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#8 jon.kiparsky  Icon User is offline

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Re: Code is not speech?

Posted 01 March 2016 - 04:01 PM

According to Benjamin Stuart, code is not speech:

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“Code isn’t that — it’s a series of 1’s and 0’s. If I walked down the streets of Manhattan, and called ‘one,’ ‘zero’, ‘one’ no one could receive that message,” he said


This is a pretty idiotic argument. If I transcribed a conversation in IPA and handed the transcript to a random set of people, odds are one in a hundred would be able to decipher it, but it's a perfectly good representation of that message. If I send you an encrypted message, is it only speech if I decrypt it so you can believe that it's "really" a message? Arts are generally held to be "speech" - if I write out a symphony, most listeners wouldn't be able to "receive that message", but it's the same work as if I hire an orchestra to play it.
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#9 Bench  Icon User is offline

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Re: Code is not speech?

Posted 04 March 2016 - 07:19 AM

The problem here is that the term "speech", for the purpose of various speech laws, originally referred to the act of expressing opinions; the laws were written to protect people against libel/harassment/oppression/discrimination/etc. Other things which could be labelled 'speech' by the lay-person, other ways of using human words which aren't opinion-based, and aren't about beliefs/opinions weren't really a consideration.

Code, being essentially pure logic/mathematics does not really have any way of forming or expressing an opinion. At best, you can use metadata within the code (i.e. variable names, function names, etc.), but a line exists between the code/logic and the metadata which makes it more human-readable. In most cases, metadata is stripped out of code entirely by a compiler.

And of course, you can have any kind of 'raw' data which contains opinions too (text, pictures, videos, etc.); but there's an even greater distance between code and data. Then there's procedurally generated data based on algorithms, and so far I don't believe anybody has managed to design a mathematical formula which is capable of forming opinions.

So -
Is code (logic) a form of speech? Definitely not.
Can metadata be a form of speech? - It's possible, but it'd be awkward to do in practice, and it's irrelevant for compiled/optimised code.
Can data be a form of speech? - Definitely.
Can procedurally/algorithmically generated data be a form of speech? No, for the same reason that mathematical logic can't be speech.

This post has been edited by Bench: 04 March 2016 - 07:42 AM

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#10 baavgai  Icon User is offline

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Re: Code is not speech?

Posted 04 March 2016 - 07:47 AM

This sounds real familiar, only the wrong way round...

I recall DeCSS was successfully defended on the grounds of free speech.

Ah, here:

Quote

Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code.
-- Universal City Studios v. Corley, {FN191: 273 F.3d 429, 60 USPQ2d 1953 (2nd Cir. 2001)}
-- http://digital-law-o...treatise50.html


Since TFA notes neither of these, they're living the dark ages before digital and are profoundly wrong both on interpretation and legal precedent.
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