Computer Ethics, Summer 2010

Week 4, Thursday (class 12), June 17
Corboy Law Room 323


PP v ALCA
Other hate speech
France v Yahoo
Source code
Patents

Patent readings

Planned Parenthood v American Coalition of Life Activists

With libel, §230 has been interpreted as saying you have immunity for posting material originated from someone else, if your understanding was that the other party intended the material for posting.

With "threat speech", the courts have held that speech qualifies as that if a reasonable listener (or reader) feels that a threat is intended. Your intentions may not count at all.

In the case Planned Parenthood v American Coalition of Life Activists (ACLA, not to be confused with ACLU, the Americal Civil Liberties Union), Planned Parenthood sued ACLA for a combination of "wanted" posters and a website that could be appeared as threatening abortion providers. In 1993 a "wanted" poster for Dr David Gunn, Florida, was released and Dr Gunn was later murdered. Also in 1993, a wanted poster for Dr George Patterson was released and Dr Patterson was subsequently murdered. In 1994 a poster for Dr John Britton, Florida, was released and Dr Britton was later murdered, along with James Barrett. After each murder, the name of the abortion provider on the website was displayed as strikethrough.

Why would a judge issue rules on what typestyle (eg strikethrough) a website could use? Did the judge in fact issue that ruling, or is that just an exaggeration from the defendants? The actual injunction (from the DC judge ruling link, below) states

In addition, defendants are enjoined from publishing, republishing, reproducing and/or distributing in print or electronic form the personally identifying information about plaintiffs contained in Trial Exhibits 7 and 9 (the Nuremberg Files) with a specific intent to threaten.

That is much more general than just "no strikethrough", though the strikethrough was widely interpreted as a "specific intent to threaten".

The "Nuremberg" website was founded by Neal Horsley, with the nominal idea of gathering evidence for the day when abortion providers might be tried for "crimes against humanity". (In such cases, the defense "it was legal at the time" is not accepted.)

In 1998, Dr Bernard Slepian was killed at home. The day before, according to Horsley, his only intent was that cited above; the day after, he added Dr Slepian's name, with a strikethrough. Slepian's name had not been there before, leading Horsley to protest very strongly that his site could not have been a threat against Slepian. (The lawsuit was filed by other physicians who felt it was a threat to them; Horsley is silent on this.)

Original site: christiangallery.com, christiangallery.com/atrocity, /atrocity/aborts.html
Archived site without strikethrough: cs.luc.edu/pld/ethics/nuremberg/aborts.html (though the strikethroughed page follows!)
Achived site with strikethrough: cs.luc.edu/pld/ethics/nuremberg/aborts2.html (Dr Gunn is col 2 row 8).
Archived site of Horstley's own before-and-after: cs.luc.edu/pld/ethics/nuremberg/californicate.htm (part of his own attempt to justify his site to the public).

After looking at these, consider Horsley's claim,

All we’ve done, and all really anybody’s accused us of doing, is printing factually verifiable information... If the First Amendment does not allow a publisher to publish factually verifiable information, then I don’t understand what the First Amendment’s about.

Do you think this is an accurate statement?

The civil case was filed in 1995, after some abortion providers had been murdered (eg Dr Hugh Short) and "wanted" posters were issued by ACLA for others. There was a federal law, the 1994 Federal Freedom of Access to Clinic Entrances Act (FACE), that provided protections against threats to abortion providers.

Horsley's site was created in 1997, and was added to the case. By 1997, the internet was no longer new, but judges were still having difficulty figuring out what standards should apply.

Horsley's actual statements are pretty much limited to facts and to opinions that are arguably protected. He does not appear to make any explicit calls to violence.

Planned Parenthood claimed the site "celebrate[s] violence against abortion providers".

For a while, Horsley was having trouble finding ISPs willing to host his site. The notion of ISP censorship is an interesting one in its own right. The Stanford site, below, claims that OneNet, as the ISP (carrying traffic only) for the webhosting site used by Horsley,demanded that Horsley's content be removed.

Here's a Stanford student group's site about the case. The original lawsuit was brought in 1995 by Planned Parenthood (and some abortion providers) against American Coalition of Life Activists (ACLA) et al. Horsley was not party to that suit; his Nuremberg site was in fact not created until 1997. The original lawsuit was over threatening "Wanted" posters depicting abortion providers; Horsley's site (but not Horsley himself) was added later. In retrospect it seems reasonable to think that, if it were not for the context created by the "Wanted" posters, there would have been no issue with the Nuremberg Files web pages.

The central question in the case is whether the statements amounted to a "true threat" that met the standard for being beyond the bounds of free-speech protection.

The judge (1999) gave the jury instructions to take into account the prevailing climate of violence against abortion providers; the jury was also considering not an ordinary civil claim but one brought under the Freedom of Access to Clinic Entrances act (FACE), which allows lawsuits against anyone who "intimidates" anyone providing an abortion. (The first-amendment issue applies just as much with the FACE law as without.) The jury returned a verdict against the ACLA for $100 million, and the judge granted a permanent injunction against the Nuremberg Files site (Horsley's).

DC Judge (full decision at http://webpages.cs.luc.edu/~pld/ethics/nuremberg/PPvACLA_trial.html):

I totally reject the defendants' attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from engaging in providing abortion services.

See also the following paragraph. 

Under current free-speech standards, you ARE allowed to threaten people. You ARE allowed to incite others to violence.

You are NOT allowed to incite anyone to imminent violence, and you are NOT allowed to make threats that you personally intend to carry out.

The case was appealed to a 9th Circuit 3-judge panel, which overturned the injunction. Judge Kosinski based his ruling on NAACP v Claiborne Hardware, SCOTUS 1982. Synopsis: The NAACP had organized a boycott of some white-owned businesses, and had posted activists to take down names of black patrons. The NAACP liaison, Charles Evers [brother of Medgar Evers] had stated publicly that those ignoring the boycott would be "disciplined" and at one point said "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Supreme Court found in the NAACP's favor, on the grounds that there was no evidence Evers had authorized any acts of violence, or even made any direct threats (eg to specific individuals). Kozinski argues that whatever the ACLA was doing was less threatening than what Evers was doing, and therefore dismisses the case.

Full 9th-circuit then heard the case, en banc

Ruling is by judge Rymer, dissents by judges Reinhardt, Kozinski (writer of the decision of the three-judge panel that heard the case), and Berzon (of Batzel v Cremers)

See http://webpages.cs.luc.edu/~pld/ethics/nuremberg/PPvACLA_9th_enbanc.pdf

5 pages of plaintiffs / defendants

Here's Rymer's problem with the NAACP v Claiborne analogy: 7121/41, at [8]

Even if the Gunn poster, which was the first "WANTED" poster, was a purely political message when originally issued, and even if the Britton poster were too, by the time of the Crist poster, the poster format itself had acquired currency as a death threat for abortion providers. Gunn was killed after his poster was released; Britton was killed after his poster was released; and Patterson was killed after his poster was released.

[Neil Horsley claims no one was listed on the Nuremberg Files list until after they were attacked.]

Here's Rymer's summary: 7092/12, 3rd paragraph

We reheard the case en banc because these issues are obviously important. We now conclude that it was proper for the district court to adopt our long-standing law on "true threats" to define a "threat" for purposes of FACE. FACE itself requires that the threat of force be made with the intent to intimidate. Thus, the jury must have found that ACLA made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ACLA's intent to harm them because they provided reproductive health services. ...

7093/13 We are independently satisfied that to this limited extent, ACLA's conduct amounted to a true threat and is not protected speech

threats are not the same as libel: 7099/19

Section II: (p 7098/18) discussion of why the court will review the facts (normally appeals courts don't) as to whether ACLA's conduct was a "true threat"

Section III (p 7105) ACLA claims its actions were "political speech" and not an incitement to imminent lawless action. Posters have no explicitly threatening language!

7106/26, end of 1st paragraph:

Further, ACLA submits that classic political speech cannot be converted into non-protected speech by a context of violence that includes the independent action of others.

This is a core problem: can context be taken into account? Can possible actions of others be taken into account?

Text of FACE law:

Whoever... by force or threat of force or by physical obstruction, intentionally injures, INTIMIDATES or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been [a provider of reproductive health services] [n]othing in this section shall be construed . . . to prohibit any expressive conduct ... protected from legal prohibition by the First Amendment

This subjects them to civil remedies, though perhaps not prior restraint.

Cases cited:

Brandenburg v Ohio, SCOTUS 1969: 1st amendment protects speech advocating violence, so long as the speech is not intended to produce "imminent lawless action" (key phrase introduced) and is not likely to produce such action.

This was an important case that strengthened and clarified the "clear and present danger" rule (speech can only be restricted in such situations) first spelled out in Schenck v US, 1919. Brandenburg introduced the "imminent lawless action" standard.

Clarence Brandenburg was a KKK leader who invited the press to his rally, at which he made a speech referring to the possibility of "revengeance" [sic] against certain groups. No specific attacks OR TARGETS were mentioned.

Robert Watts v United States, SCOTUS 1969.  Watts spoke at an anti-draft rally (actually a DuBois Club meeting):

"They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J."

Watts' speech was held to be political hyperbole. This case overturned long precedent regarding threats.

Particular attention to NAACP v Claiborne. Distinction: there was no actual violence then! Decision was that Evers' speeches did not incite illegal activity, and thus did not lead to business losses. No "true threat" determination was made nor needed to be made.

Also, Evers' overall tone was to call for non-violent actions such as social ostracism.

This leaves Watts as the only SCOTUS case dealing with "true threats" issue.

Roy v United States: USMC private hears Nixon is coming and says "I am going to get him"

Whether a particular statement may properly be considered to be a threat is governed by an objective standard -- whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.

Note this "reasonable person" standard. No hiding behind "that's not really what we meant". Also, intent to carry out is not required:

It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.

[communicates it as a serious threat, that is, not just hyperbole]

ACLU amicus brief: The person must have intended to threaten or intimidate.

Rymer: this intent test is included in the language of FACE; ACLA has met this test long ago. Did ACLA intend to "intimidate"?

Two dissents argue that the speaker must "actually intend to carry out the threat, or be in control of those who will"

But Rymer argues that the court should stick with the "listener's reaction"; ie the reasonable-person standard again.

Conclusion of this line of argument (intent v how it is heard):

7116/36, at [7] Therefore, we hold that "threat of force" in FACE means what our settled threats law says a true threat is: a statement which, in the entire context and under all the , circumstances a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person. So defined, a threatening statement that violates FACE is unprotected under the First Amendment.

Crucial issue: the use of the strikeout and grey-out. This is what crosses the line.

7138/53, 2nd paragraph:

The posters are a true threat because, like Ryder trucks or burning crosses, they connote something they do not literally say, yet both the actor and the recipient get the message.

The Supreme court refused to hear the case. The Ninth Circuit had established that the speech in question met certain standards for being a true threat, and the ACLA would have had to argue that some factual interpretations were mistaken. But the Supreme Court does not generally decide cases about facts; they accept cases about significant or conflicting legal principles.

See also Baase, p 190, Exercise 3.23:

An anti-abortion Web site posts lists of doctors who perform abortions and judges and politicians who support abortion rights. It includes addresses and other personal information about some of the people. When doctors on the list were injured or murdered, the site reported the results. A suit to shut the site for inciting violence failed. A controversial appeals court decision found it to be a legal exercise of freedom of speech. The essential issue is the fine line between threats and protected speech, a difficult issue that predates the Internet. Does the fact that this is a Web site rather than a printed and mailed newsletter make a difference? What, if any, issues in this case relate to the impact of the Internet?

Finally, you might wonder why, with all the threats of violence made during the course of the civil rights movement by whites against blacks, the case NAACP v Claiborne that comes to us is an allegation of violence by blacks against blacks, filed by whites. I think it's safe to say that the answer has nothing to do with who made more threats, and everything to do with who could afford more lawyers.

Hit Man

this was a book published by Paladin Press, written by "Rex Feral", supposedly a pseudonym for a woman who writes true-crime books for a living. It is likely a work of fiction.

In 1993, James Perry murdered Mildred Horn, her 8-year-old son Trevor, and nurse Janice Saunders. He was allegedly hired by Lawrence Horn. In Rice v Paladin Enterprises (1997), the federal court of appeals (4th circuit) held that the case could go to jury trial; ie freedom-of-press issues did not automatically prevent that.

Many of the specifics of the Perry murders were out of the book. Many of them are rather compellingly "obvious": pay cash, rent a car under an assumed name, steal an out-of-state license plate, use an AR-7 rifle (accurate but collapsible), make it look like a robbery

The book also explains how to build a silencer, which is not at all obvious; Perry allegedly did just this.

The following are from the judge's decision. "Stipulations" are alleged facts that are not being contested at the present time.

"The parties agree that the sole issue to be decided by the Court . . . is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings." (emphasis added)

Paladin has stipulated not only that, in marketing Hit Man, Paladin "intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes," J.A. at 59, but also that it "intended and had knowledge" that Hit Man actually "would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire." J.A. at 59 (emphasis added). Indeed, the publisher has even stipulated that, through publishing and selling Hit Man, it assisted Perry in particular in the perpetration of the very murders for which the victims' families now attempt to hold Paladin civilly liable. J.A. at 61. [note 2] [242]

Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin's motion for summary judgment and dismissed plaintiffs' claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law.

What's going on here? Why did Paladin stipulate all that? It looks to me like Paladin was acknowledging the hypotheticals as part of its claim that they didn't matter, that the first amendment protected them.

The court ruled it did not:

long-established caselaw provides that speech--even speech by the press--that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment

Past cases that lost:

Brandenberg v Ohio [discussed above under PP v ACLA] was cited as a case of protected speech advocating lawlessness. But this case, due to Paladin's stipulations [!!], was much more specific.

A popular theory was that after Paladin Press settled the case (which they did, under pressure from their insurer), the rights to the book ended up in the public domain. Paladin claims otherwise; however, the Utopian Anarchist Party promptly posted the entire book at overthrow.com and that was that. [Other parties may also have posted the book independently] (The bootleg copies don't have the diagrams, though)

It has been claimed that Hit Man was sold almost entirely to non-criminals who simply like antiestablishment stuff. However, this is (a) speculative (though likely), and (b) irrelevant to the question of whether some criminals bought it.

Look at the current Paladin website. Does it look like their primary focus is encouraging criminals? Secondary focus?

To find Hitman, google "hit man" "rex feral", or search Amazon.com. Most references as of 2009 are to those selling used copies of the physical book;  check out amazon.com for current prices of used editions. The site http://mirror.die.net/hitman still has the online text.

Other bad materials:

Note EofJ has significant political/religious component!

4th-circuit opinion: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html


Should the law generally make sense? See http://xkcd.com/651


Anti-Defamation League, Combating Extremism in Cyberspace


Threats

As we've seen above, threats must be "true threats" to be unprotected speech, but the standard for that is pretty much the eye of the recipient.

Harassing speech

Harassment of another individual is generally not protected by free-speech laws. Computer-mediated forms of such harassment can include emails, open and closed discussion forums, texts, or even blogs. Harassment must be
Generally, harassment must also be directed at an individual.

Incitement to Imminent Violence

The Brandenburg standard is still good law here: inflammatory speech is permitted unless it is intended to, and likely to, incite imminent lawless action. But specific threats are separate.

Group Libel

This remains a long shot. The idea is that if someone says hateful things about a specific ethnic, racial, or religious group, any member of that group can file a lawsuit.

Criminal Libel

An even longer shot, except in Colorado.


ISPs and Hate Speech

ISPs are not obligated to do anything about hate speech on their customers' web sites. They are not obligated to remove anything objectionable or defamatory.

However, many ISPs do have Terms of Service forbidding hate speech.

Universities and Hate Speech

Arthur Butz, a faculty member at Northwestern University, has a sideline of writing essays denying the Holocaust. For a long time, his faculty web page at Northwestern contained links to all his other writings. As of now, it appears that his other writings have been moved to another site.

Northwestern has always had a policy allowing faculty to use the internet for a wide variety of purposes. In their Rights and Responsibilities policy, Rights comes at the beginning and the first item under it is Intellectual Freedom, where it is stated that,

The University is a free and open forum for the expression of ideas, including viewpoints that are strange, unorthodox, or unpopular. The University network is the same.

Note that the immediately following item on the list is Safety from Threats. That is, despite the above, Northwestern does not tolerate harassment.

Other universities have disallowed student/faculty use of the internet except for narrow academic purposes, perhaps with cases like Butz's in mind.

German regulation of hate speech

Germany's constitution states that

everybody has the right freely to express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources without hindrance.

However, German criminal law forbids
The last one has been used successfully to prosecute Holocaust deniers.

In other words, despite the wording of the German constitution, speech is much more regulated than in the United States. That is, the German courts have interpreted their free-speech clause less broadly than has the US Supreme Court.

German law has generally tolerated the existence of off-shore hate-speech websites accessible in Germany. However, there have been attempts to prosecute when (a) there were relatively stronger grounds for claiming jurisdiction, and (b) there were things that might have been done to restrict access within Germany.

In 1995, Nebraskan neo-Nazi Gary Lauck was arrested on a trip to Denmark, extradited to Germany, and convicted for the website he ran in the United States. He served four years in prison. Some of the materials on the US website were in the German language; it is not clear whether Lauck was deliberately trying to target Germans.

In 1998, Felix Somm -- at the time the German manager of CompuServe -- was convicted in Germany because CompuServe made certain pornography available in Germany. Somm's conviction was later overturned, apparently because he had asked CompuServe to block the material within Germany.

What if Somm, instead of asking CompuServe to block the material, had instead thrown up his hands and said it was beyond his control?

In 1999, the Australian Fred Tobin was arrested while on a trip to Germany, for a neo-Nazi site Tobin maintained in Australia; he was later convicted and served seven months in prison.

Canada also criminalizes hate speech: it is a criminal act to "advocate or promote genocide” or to willfully promote "hatred against any identifiable group".


Ultimately, the problem of jurisdiction for speech regulation is a difficult one. We'll come to that jurisdiction issue later, as a topic in and of itself.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

From the Anti-Defamation League site above:

... nations ratifying the [ICERD} convention are required to “declare an offence punishable by law” the dissemination of ideas “based on racial superiority or hatred.” Additionally, the convention requires these nations to “declare illegal and prohibit” all organizations and organized activities that “promote and incite racial discrimination.”

The United States signed the convention in 1966, but the Senate tacked the following on to the ratification resolution:

The Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States

(Note that there is a long history of UN actions that various member states have declined to accept.)

France (LICRA) v Yahoo

Baase, section 3.3.2

Yahoo offered nazi memorabilia for sale on its auction site. They were sued by LICRA (LIgue Contre le Racisme et l'Antisémitisme)

(This is a JURISDICTIONAL case that probably should be discussed elsewhere, except that it addresses a free-speech issue.)

French courts decided they did have jurisdiction to hear the case. But Yahoo has no assets in France!

Appellate US court (9th circuit), en banc, held that the US might have jurisdiction in the reverse case against LICRA (and UEJF). BUT the case was directed to be "dismissed without prejudice", as it's not yet ready to be decided. It was not "ripe".

(same thing happened to US v Warshak, when the 6th circuit en banc ruled the case was not "ripe")

Yahoo was asking a US court to assert that France had no authority. The 9th circuit refused to do that. Yet.

Judge William Fletcher:

Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. As we indicated above, the extent -- indeed the very existence -- of such an extraterritorial right under the First Amendment is uncertain.

Part of the issue: Yahoo was not able to point to any speech of its own that was "chilled" by the French decision. Yahoo did adopt an anti-hate-speech policy.

The court did not address the notion that the only way to restrict access in France would be to restrict access in the US.

These issues led to the declaration of non-ripeness.

This is a JURISDICTIONAL case that was left undecided

At about the same time, there was growing realization that advertising-based geolocation software (IP addr -> location) was better than sometimes understood, and that by using such software it was possible to block apperarance in France (at least to 90% of users).

Yahoo never really implemented this; they decided instead to ban all "hate material", everywhere. This includes KKK memorabilia.



corporate cybersmear:

essential problem:

This is a significant issue in the "free speech" of employees. Note how giving providers an easy way to get libel cases dismissed via summary judgement makes this strategy for corporations much more difficult.

See http://www.chillingeffects.org/johndoe/faq.cgi
Note that the issue here is the use of the legal system to find identities of anonymous posters. Baase has an extensive section on anonymity.

What about employee bloggers?


Is source code speech?

Well, is it?

Cases where it's been debated:

Encryption: BIG issue for the US Gov't, 1977 - ~ 2000

For a while, the NSA (National Security Agency) tried very hard to block even publication of scientific papers. They would issue "secrecy orders".

But eventually the government's weapon of choice was ITAR: International Trade in Armaments Regulations

Suppose you make F-16 fighters. You need a munitions export permit to sell these oversees. What about if you make open-source encryption software? You need the same kind of permit! Even if you GIVE IT AWAY!!

BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with the RSA encryption algorithm on it.

Zimmermann case

Phil Zimmermann released PGP ("Pretty Good Privacy") as an open-source project in the early 90's. The gov't made him promise not to do it again. Zimmermann's associates outside the US released the next version. Zimmermann was under indictment for three years, but charges were eventually dropped.

Schneier case

Bruce Schneier wrote a textbook on cryptography. All the algorithms were printed, and also included on a FLOPPY in the back of the book. Phil Karn applied for an export license for the package. It was granted for the book, denied for the floppy.

Bernstein case

Daniel Bernstein created a cipher called "snuffle". In 1995 he sued to be allowed to post it to a course website. In 1997 the district court ruled in his favor. In 1999 a 3-judge panel of the 9th circuit ruled in his favor, although more narrowly. Opinion of Judge Betty Fletcher:

http://epic.org/crypto/export_controls/bernstein_decision_9_cir.html

Prior-restraint was one issue
Bernstein's right to speak is the issue, not foreigners' right to hear

But does source code qualify? see p 4232: C for loop;  4233: LISP

Snuffle was also intended, in part, as political expression. Bernstein discovered that the ITAR regulations controlled encryption exports, but not one-way hash functions. Because he believed that an encryption system could easily be fashioned from any of a number of publicly-available one-way hash functions, he viewed the distinction made by the ITAR regulations as absurd. To illustrate his point, Bernstein developed Snuffle, which is an encryption system built around a one-way hash function. (Arguably, that would now make Snuffle political speech, generally subject to the fewest restrictions!)

Here is Judge Fletcher's main point:

Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and rigorous expression of complex scientific ideas.13 Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion.

Government argument: ok, source code might be expressive, but you can also run it and then it does something: it has "direct functionality"

Fletcher: source code is meant, in part, for reading. More importantly, the idea that it can be banned due to its "direct functionality" is a problem: what if a computer could be ordered to do something with spoken commands? Would that make speech subject to restraint? In some sense absolutely yes; if speech became action then it would be, well, actionable (that is, something that could be legally prohibited).

In 1999, the full 9th circuit agreed to hear the case; it was widely expected to make it to the supreme court.

But it did not. The government dropped the case.

Junger v Daley

Junger was prof at Case Western Reserve University. He wanted to teach a crypto course, with foreign students.

6th circuit:

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

BUT: there's still a recognition of the need for balancing:

We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether ... national security interests should overrule the interests in allowing the free exchange of encryption source code.

DeCSS case

There are several; the best known is Universal Studios v Reimerdes, Corley, and Kazan. Eric Corley, aka Emmanuel Goldstein, is the publisher of 2600 magazine.

Corley:

http://www.mccullagh.org/image/950-10/emmanuel-goldstein.html
DeCSS was developed in ~1999, supposedly by Jon Lech Johansen. He wrote it with others; it was released in 1999 when Johansen was ~16. He was tried in Norway in 2002, and was acquitted.

Judge Kaplan memorandum, Feb 2000, in Universal v Reimerdes:

As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.

He then goes on to consider the "balancing" approach between free speech and regulation, considering the rationale for the regulation and the relative weights of each side.

The computer code at issue in this case does little to serve these goals [of expressiveness]. Although this Court has assumed that DeCSS has at least some expressive content, the expressive aspect appears to be minimal when compared to its functional component. Computer code primarily is a set of instructions which, when read by the computer, cause it to function in a particular way, in this case, to render intelligible a data file on a DVD. It arguably "is best treated as a virtual machine . . . ."

[the decision cites Lemley & Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, Duke Law Journal 1998. However, the sentence in Lemley and Volokh's paper explicitly refers to executable object code, not source! "The Bernstein court's conclusion, even if upheld, probably doesn't extend past source code to object code, however. We think most executable software is best treated as a virtual machine rather than as protected expression." Judge Kaplan apparently did not grasp the distinction.]

Note that this virtual-machine argument renders irrelevant the Bernstein precedent! Actually, the virtual-machine argument pretty much presupposes that you have come down solidly on the side of code-as-function instead of code-as-expression.

Also note the weighing of expression versus functionality, with the former found wanting.

Do you think that Judge Kaplan was stricter here than in the crypto cases because crypto was seen as more "legitimate", and deCSS was clearly intended to bypass anticircumvention measures?

The district court issued a preliminary injunction banning 2600.com from hosting DeCSS; the site then simply included links to other sites carrying it.The final injunction also banned linking to such sites, and included language that equated linking with trafficking.


The Appellate decision was similar, though with somewhat more on the constitutional issues, and an additional twist on linking. Also, note that one of Corley's defenses was that he was a journalist, and

Writing about DeCSS without including the DeCSS code would have been, to Corley, "analogous to printing a story about a picture and not printing the picture."

However, in full context, that idea was harder to support.

Both the DC and Appellate courts held that the DMCA targets only the "functional component" of computer speech.

One argument was that the CSS encryption makes Fair Use impossible, and that therefore the relevant section of the DMCA should be struck down. The appellate court, however, ruled instead that"Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the "fair use" of information just because that information was obtained in a manner made illegal by the DMCA".

This is an interesting argument by the court!

Some notes on the free-speech argument:

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment.

The court also acknowledged Junger v Daley (above).

However:

As the District Court recognized, the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech. Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available.

A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires . . . that the means chosen do not 'burden substantially more speech than is necessary to further the government's legitimate interests.'"

That is, the DeCSS code may be said to be "expressive speech", but it's not being banned because of what it expresses.

Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks.... These realities of what code is and what its normal functions are require a First Amendment analysis that treats code as combining nonspeech and speech elements, i.e., functional and expressive elements.

As for hyperlinks (in the section "Linking"),

a hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen.... The linking prohibition is justified solely by the functional capability of the hyperlink.

What if one simply printed the site name, without the link: eg cs.luc.edu? For links, one can argue that the expressive and functional elements -- what the other site is, and how to get there -- are inseparable.