In making this defense, Apple and EFF (as well as others) typically use the term "computer code is speech" in reference to previous court decisions which protected companies and individuals developing software, in particular encryption software. However, this idea (code as speech) is controversial. Below, I will address law professor Neil Richards's claim that "Code = Speech" is a mistake. (As a reference, please also refer to Apple's filling.)
Code is a means of expression
Richards states that "Apple has told the court that 'under well-settled law, computer code is treated as speech within the meaning of the First Amendment.' Unfortunately, it's wrong about that. The Supreme Court has never accepted that code is protected like speech." The problem is that Apple never said that The Supreme Court has ruled on the matter - they referred to "well-settled law." From that perspective, Apple is correct. They even list the lower court case-law to illustrate.
For instance, in Bernstein v. Department of State the U.S. Court of Appeals, Ninth Circuit says "we conclude that source code is utilized by those in the cryptography field as a means of expression, and because the regulations apply to encryption source code, it necessarily follows that the regulations burden a particular form of expression directly" (emphasis added). The court here explicitly refers to cryptography which is exactly what Apple refers to in their filling. They say that
The government asks this Court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns. The code must contain a unique identifier "so that [it] would only load and execute on the SUBJECT DEVICE," and it must be "'signed' cryptographically by Apple using its own proprietary encryption methods (emphasis added).More directly, though, Apple also lists the case of United States v. Elcom Ltd. which was ruled by the U.S. District Court in Northern California. In that ruling the court states that
the government contends that computer code is not speech and hence is not subject to First Amendment protections. The court disagrees. Computer software is expression that is protected by the copyright laws and is therefore "speech" at some level, speech that is protected at some level by the First Amendment (emphasis added).At least two other cases address this claim as well:
- Universal City Studios, Inc. v. Corley - "Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer"
- Junger v. Daley - in reversing a lower court's decision stating that encryption code is not expressive speech, the U.S. Appeals Court, Sixth District concluded that the First Amendment does in fact protect computer source code
Speechiness is not the issue - regulation is
Having said all of that, I do believe that Richards makes a good point when he says that
What matters, in the end, isn't the metaphysics of "speechiness," [the central question of asking whether code is speech] but whether a government regulation of an activity threatens the traditional values of free expression -- political dissent, art, philosophy, and the practices of self-government...The right question to ask is whether the government's regulation of a particular kind of code (just like regulations of spending, or speaking, or writing) threatens the values of free expression.Like Richards, I see this as the true issue at hand. The clumsy language used by the various courts above only confuses the matter. Computer code is really more like words, not speech, and like words used in other forms of expression, the content matters. Richards provides an illustrative example when he implies that it would be silly (my word not his) to protect malware writers because the code they used to write the programs was protected speech.
In defense of that last view, Richards writes "Code = Speech is a fallacy because it would needlessly treat writing the code for a malicious virus as equivalent to writing an editorial in the New York Times." I have some trouble with this analogy because I could see a case where these were equivalent. For instance, if the New York Times published an editorial that incited a riot in Times Square, that would be the same as writing a malicious virus (or DDoS attack). Using words to incite violence is not protected by the First Amendment, nor is using code to inflict damage. And this, as I see it, gets to the real heart of the matter. However, I wouldn't go as far as Professor Richards in calling for regulation of code.
While I believe that Apple has a valid First Amendment argument in their fight against the government, I also think the simple slogan of "code is speech" and what it implies is clumsy. Computer code can be used to achieve great things including giving power to the powerless and limiting the power of the powerful. In that way, it is no different from traditional values of political dissent, art, and philosophy.