Pure Speech or Expressive Conduct: Software Regulation and the Courts

• Publication year: 2000
• Pages: 69
• Citation: Vol. 29 No. 12 Pg. 69

29 Colo.Law. 69 Colorado Lawyer 2000.

2000, December, Pg. 69. Pure Speech or Expressive Conduct: Software Regulation and the Courts

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69

Vol. 29, No. 12, Pg. 69

The Colorado Lawyer
December 2000
Vol. 29, No. 12 [Page 69]

Specialty Law Columns
Technology Law and Policy Review
Pure Speech or Expressive Conduct: Software Regulation and the Courts
by Ronald B. Reynolds, Kevin B. Davis
C 2000 Ronald B. Reynolds, Kevin B. Davis, and The

Software is so common in automobiles, watches, and certainly computers that it is easy to forget what software really is—a set of instructions that tells a computer what to do. Telling a machine what to do is quite different than communicating with a person, but software is, in essence communication

Despite this seemingly innocuous observation, courts are struggling with the issue of whether software is by definition "pure speech" or "expressive conduct" so as to determine whether the First Amendment constitutionally requires "strict scrutiny" or "intermediate scrutiny" of government regulations.1 Although the results have been inconsistent, a trend is emerging toward finding software to be expressive conduct requiring intermediate scrutiny of government regulations However, the authors suggest that a clearer understanding of "source code" might lead courts to regard software as pure speech, requiring strict scrutiny.

Prior to discussing the judicial treatment of source code, this article defines the technology at issue. It then examines cases that involve two types of government regulation: (1) regulation of the export of encryption software2 and (2) regulation of software designed to circumvent locking devices intended to protect copyrighted materials.3 While the cases involve distinctly different regulatory regimes, the constitutional issues are similar. However, conflicting understandings of the nature of software have led to inconsistent court decisions. This article addresses the rationale offered and the constitutional standards used by courts in reviewing governmental regulation of source code and, hence, software.

Defining Software/Source Code

All computer software, regardless of purpose, is written in "source code." Source code generally contains two types of messages. The first, referred to as a "comment," is written into the code to provide an explanation to other programmers of the logic employed. The second message, written in programming language, provides the data that, once interpreted, will guide the machine in its performance of a given task. While only intelligible to humans in this original format, when fed through a compiler, the coded messages become decipherable by the computer.

Judicial Treatment Of Source Code

One court has found source code to be pure speech entitled to strict scrutiny. Others have held it to be expressive conduct worthy only of intermediate scrutiny. Because source code tells a computer what to do, another court held it to be functional rather than communicative and, therefore, unworthy of First Amendment protection entirely (the decision was reversed on appeal). As can be seen by the review of cases below, the outcomes appear to depend on how the courts define the nature and purposes of source code.

Bernstein v. United States Department of State

In 1992, Daniel Bernstein prepared to make internationally available an encryption algorithm he called "snuffle."4 He submitted an application for an export license as required by the International Traffic in Arms Regulations ("ITAR"), under which sufficiently powerful encryption software may be considered a munition.5 His application was denied.

Bernstein initiated an action in the U.S. District Court for the Northern District of California, contending that the restrictions on the export of source code violated the U.S. Constitution as an impermissible content-based restriction on speech. The government moved to dismiss, asserting that code is developed for functional rather than communicative purposes and, therefore, is not entitled to constitutional protection.6 The court determined that source code is likely to be speech, because it is the product of language.7 The government’s motion to dismiss was denied.

Subsequently, the court decided the merits of the case,8 applying the Freedman three-prong test to disallow the government’s regulation of Bernstein’s encryption code as an unconstitutional prior restraint.9 In dicta, the court observed that by focusing on cryptographic software specifically, the government regulation ran afoul of the U.S. Supreme Court’s hostility to content-based regulation.

Shortly after this decision, the Clinton Administration transferred jurisdiction over the export of encryption from the State Department to the Commerce Department, thereby forcing the parties and the court to retry the same issues.10 Reaffirming its decision, the court also addressed an apparent disparity in governmental treatment of code based on medium. Under the regulations, hard copy data was not restricted, while identical data in digital form was subject to the strict export regime. The court stated that such amendments were an obvious attempt to codify a...