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Censorship Programming The Courts United States

Do America's Free-Speech Protections Protect Code - and Prevent Cryptocurrency Regulation? (marketplace.org) 65

The short answers are "yes" and "no." America's Constitution prohibits government intervention into public expression, reports the business-news radio show Marketplace, "protecting free speech and expression "through, for example.... writing, protesting and coding languages like JavaScript, HTML, Python and Perl."

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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Do America's Free-Speech Protections Protect Code - and Prevent Cryptocurrency Regulation?

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  • by Joe_Dragon ( 2206452 ) on Sunday September 18, 2022 @05:53PM (#62893087)

    banking laws and stock market laws cover the parts of crypto that are at issue.

  • The short answer is yes, until the Supreme Court says no. (The reverse also applies.)
    • Supreme court decisions have no power here.

      • That's true until a plaintiff files a case, and then suddenly it's up to the court to decide or to throw out the case.
  • by fahrbot-bot ( 874524 ) on Sunday September 18, 2022 @06:13PM (#62893121)

    Do America's Free-Speech Protections Protect Code - and Prevent Cryptocurrency Regulation?

    Any regulations are (will be) about the effects of the code -- what it does with the money involved -- rather than the code itself. Sure, I can write any code I want to move money around, but there are laws/rules about moving money around.

    • by msauve ( 701917 )
      "what it does with the money involved"

      Are you claiming that crypto bits are money? Perhaps it's just exchanging secret codespeech. Money appears only on the ends, not anywhere in the middle.
      • what it does with the money involved

        Are you claiming that crypto bits are money?

        You forgot the part where it specifically said "cryptocurrency" in the Title, TFS, TFA ...

      • by coop247 ( 974899 )

        Perhaps it's just exchanging secret codespeech

        Crypto is actually quite literally just exchanging random useless strings. You gotta get these unique strings while available!

  • Is anyone trying to prevent people from writing or distributing code?
    I'd imagine any regulation would be on the consequences of running the code.
    Is it illegal to write a set of instructions on how to evade paying your taxes?

    • Re: (Score:3, Informative)

      I don't think so. I read this as their effort to set up a strawman argument. Establish that code is expression and therefore protected under first amendment. And then when ANY regulations come on crypto, say they can't regulate because crypto is code and code is protected by the first amendment. Yeah, a lot of mental gymnastics there, but let's be honest, we've probably seen worse.
      • Pretty sure we have been here before, but not necessarily at this level - people claiming that "you cant copyright mathematics" equates to "therefore nothing digital has copyright because at the lowest level its all mathematics". That argument never seemed to get traction, but then it never had VCs with huge trust funds behind it to make it a national issue in the courts.

        Same basic thing tho.

        And its going to get laughed at in the same way.

    • Is anyone trying to prevent people from writing or distributing code?

      It is illegal to send militarily useful code to Russia, China, Iran, North Korea, or Syria.

    • by GuB-42 ( 2483988 )

      Is it illegal to write a set of instructions on how to evade paying your taxes?

      I am not a lawyer but maybe. Incitation to commit a crime is not protected by free speech, it is an exception (others include defamation, threats, copyright violations, obscenity, etc...). Instructions on how to commit a crime like tax evasion may fall in that category, or maybe not, there is probably a precedent somewhere.

      But most likely none of that matters when it comes to cryptocurrencies. Cryptocurrencies have value, they have value because they can be exchanged for other things that have value, and ge

    • Yes, and Yes. ITAR regulations prevent distribution of code which can be used for military purposes. Doug Williams was convicted and sentenced to two years in prison for writing & distributing instructions on how to pass polygraph tests (not necessarily by lying, either).

      • I was talking specifically about cryptocurrencies, I don't think there's anything that violates ITAR in there.
        I'm sure that in the context of military operations there are also laws about divulging troop movements that supersede freedom of speech.
        I remember downloading the Anarchist Cookbook from some BBS when I was a kid and looks like that was not illegal, while actually following the instructions of some of it would have been.

    • Is anyone trying to prevent people from writing or distributing code?

      Writing? No. Distributing? Yes. It's called ITAR.

  • by Richard_at_work ( 517087 ) on Sunday September 18, 2022 @06:26PM (#62893143)

    The code can still be free speech, and the action of using it for particular acts can be regulated at the same time.

    You can write the application - whether you then subsequently use it to breach financial regulations is a separate thing. GnuCash is free and open source, it would still be unlawful to launder money using it because the act that is illegal is the laundering of the money, not the code.

    Similarly, you can write an application which turns your Tesla (or any other autonomous capable vehicle) into a killing machine which targets every pedestrian it sees - the program would be legal to write, but you would still be charged with murder if you used it to actually kill people.

    • by Jahta ( 1141213 )

      The code can still be free speech, and the action of using it for particular acts can be regulated at the same time.

      Exactly. This is like what Phil Zimmermann [wikipedia.org] did with PGP [wikipedia.org]. Exporting strong encryption software (in binary form) was illegal. So Zimmerman published the source code in a book - which was covered by the 1st Amendment - so people could export the book and then OCR the text to create their own binaries.

      • by BranMan ( 29917 )

        This is that rare instance when the phrase "Been there, done that, got the T-shirt" is actually *relevant*!

  • by Joe_Dragon ( 2206452 ) on Sunday September 18, 2022 @06:33PM (#62893155)

    3d gun plans are coved under the 1st but it's what you do that info is the issue.

    • But a credit card sized sheet of metal with prescribed indicators of where to cut and grind is a machine gun as are template stickers you can apply to your own credit card sized piece of metal.

      The real fun one is "you bought something that isn't a suppressor in order to file the paperwork to make a suppressor using it, but since you planned to make it a suppressor it magically became one without a tax paid etc so it is a illegal suppressor, so no way to use it to self-make a legal one".

  • ... a piece of art that just so happens to set other people's houses on fire, does the first amendment protect art and prevent regulation on it setting other people's houses on fire?

    That's what this questions sounds like to me. Code is mechanization. Literature is expression. That's why MS holds patents on technology and not copyrights on technology. (I do know they hold copyrights. But not copyrights on technology. And I also know their patents are questionable. My point is, you can't jump between differ
  • Nope no free speech coding anymore.
  • where the next man's nose begins.

    I can talk trash at you all I want, but if, for example, I call you a pedophile sex trafficker (sans real evidence) and sic a mob/call the cops/take the law into my own hands on you, then I don't get to hide behind the first amendment when they put me away for incitement/filing a false police report/assault.

    Same with code. I can post all the code I want, but if I get caught using it to intercept payments legitimately made to Nigerian royalty, then all I've done is committed

  • Hahaha. Both answers are absolutely, 100% wrong. This guy is thinking about the way constitutional law was run last decade. We now have a supermajority of conservative constitutional literalists on the supreme court. This is no longer Roberts court. Thomas is in the drivers seat now, and they;re gonna be in charge for decades.

    The word "abortion" is not in the constitution. So, according to this court, there is absolutely zero constitutional protection.

    Thomas has indicated that he would feel the same a
    • by bws111 ( 1216812 )

      What a long winded way of saying you have no idea what you are talking about. Let's start with the moronic 'Arkansas Church'. Have you never heard of the 14th amendment?

      I have never heard a conservative claim that 1st amendment protections only cover the technology of the time, but I have heard plenty of liberals make that stupid claim with regards to the 2nd amendment.

      The rest of your post is just inane babbling.

      • I just reread the 14th ammendment. Several times. Have you? Because I couldnt find the word “church” anywhere. Do you possibly mean the first ammendment? That prohibits CONGRESS from establishing a religion, but says absolutely zero, zip, nada, nothing about the individual states.

        Maybe you’re reading a bunch of stuff into the 14th ammendment text about life, liberty, and property? Sorry buddy, the new supreme court is going to interpret liberty as “not a slave” and property
        • In case this was an honest question...

          Nope, they meant the 14th. It was passed during the aftermath of the civil war. It extends some protections (bill of rights) from just a federal obligation to the states as well. Now obviously the SC could reinterpret that but it would be hard pressed and I know of no groups pushing it (well, in the last 100 years).

          As for the rest of your screed, I agree with the previous poster. You don't seem to grasp any of the parts of what is going on with your 'not in the text' ar

          • See. Despite the fact you're an obvious conservative, you're taking a surprisingly... liberal... view of constitutional interpretation. Heh - see what I did there?

            But that view is now outdated.

            You're still stuck in last decades mode of thinking, where there was room to interpret the words of the constitution. That's absolutely gone. The concsitutoinal conservatives have been railing against "interpretation" for 40 years. and now they're in charge. Despite all of the high language in the document
            • by bws111 ( 1216812 )

              They won't even bother to protect children

              Conservatives believe 'children' are 'children' even BEFORE they are born. Prove them wrong.

              • And more important than the mother. And they're gonna make that decision FOR the mother and enforce it with police, guns and prison. Yes, I agree, that's definitely what conservatives think nowadays. But that means you are taking an extremely literal, 18th century view of the words "freedom" and "liberty".

                Which was exactly my original point. Thank you for confirming. Constitutional law has rolled back at least a century. Some states will be fine. Some are going to be in a very dark place in a few years.
                • by bws111 ( 1216812 )

                  And more important than the mother.

                  Wrong. They say the childs LIFE is more important than the mothers DESIRE.

                  Look, I have not said which side of the abortion debate I am on. In fact, I am pro-choice. But, unlike you, I can see that are valid arguments against abortion. I can also see that neither side has any scientific evidence that the other side is completely wrong, because it is not a scientific question. So let the PEOPLE decide (which is how the law now stands). You would rather 'make the choice for them' and take away the abilit

                  • That argument boils down to the old Monty Python sketch - every sperm is sacred, every sperm is great, if a sperm is wasted, god gets quite irate. Sung to a really catchy tune.

                    Basically, it's the belief that a dime-sized group of cells with the potential to become a human outweighs a fully-grown and fully-mature human female. I get it, from a certain philosophical and/or religious perspective, it makes perfect sense.

                    The current supreme court is going to roll a massive number of things back to the
                    • by bws111 ( 1216812 )

                      You truly have absolutely NO idea what the Constitution is or does, what the role of the federal government is, what the role of the Supreme Court is, or anything else related, do you? Let me guess: blue state educated?

                    • You’re absolutely right. I know nothing. Tucker “Russia is defending democracy” Carlson and Joe “I love forced labor” Arpaio are clearly my intellectual superiors. Not to mention Alex “school shootings are false flag operations” Jones. If we all just bowed down and let them run the show, our country would immediately return to the pinnacle of awesomeness.
        • This clause of the 14th:

          nor shall any State deprive any person of life, liberty, or property, without due process of law;

          ... has been used over the course of a century to incorporate portions of the Bill of Rights, the First Amendment specifically, against the states. Think your bogeyman Thomas is going to do away with this body of law? That would be a little weird, seeing as how he has actually endorsed reviving this clause, largely abandoned for incorporation purposes, to do the same thing:

          No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

          It would also be a little weird for him to put a stamp of approval on miscegenation laws, [heavy.com] but then I'm just s

        • No, the 1st Amendment fully applies to actions by the States. You appear to be working off of bad information and partisan talking-points, and the latter are intended to terrify and deceive, rather than inform you.
        • by bws111 ( 1216812 )

          You 'reread the 14th amendment several times' and somehow you completely missed the phrase 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'? Or are you just too stupid to know what 'privileges and immunities' are? In that case, 'privileges' are rights which the government has granted (such as voting, right to counsel, etc). 'Immunities' are so-called 'natural rights' which have been declared (by the Constitution) immune from govern

    • The word "abortion" is not in the constitution. So, according to this court, there is absolutely zero constitutional protection.

      I'm just curious, where do you get your understanding of the law? Is it vague skimming of news summaries, or just the voices in your head?

  • Yes, there are some good arguments that the source code for cryptocurrencies might be protected as free speech. That's probably for the best and doesn't present much of a barrier to regulation (besides, it couldn't prevent extra-territorial distribution).

    Nothing about your right to publish the code to a bitcoin node stops regulation of financial transactions involving bitcoin. The government can ban cash transactions in excess of 10k, structuring and all sorts of other financial crimes so there is no ques

  • What an incredibly stupid question. It's a financial transaction, no ideas are being expressed.

    With ethereum dead for mining the miners are hoping to pump and dump shit coins. But the SEC has made it crystal clear that's a no no. So they're grasping at straws trying to come up with a trick to get the law off their back so they can rip off old ladies and pensioners.

    It won't work. Not because we don't let people rip off old ladies but because bigger fish want to do that grift.
    • by gweihir ( 88907 )

      Indeed. It is also not code that is the problem. It is data shifted around in order to trade securities or transfer money. If used for that, then code is not code but just data.

  • You are free to write whatever code you want, but how you use it is subject to law. The courts have ruled that the First Amendment isn't absolute. One can not lie to law enforcement (though for some fucked reason the obverse isn't true), disseminate classified info one has created, or use "fighting words" without consequence.

    I would say one is free to write malware, and even publish it, but not use it. One can write any sort of predatory contact, but the use is subject to law
    The same would hold for

  • The 1st Amendment protects the freedom of religion and speech, but that doesn't mean it can't regulate that speech. For example, if a church crosses certain thresholds of political or lobbying activity, it can lose its tax-exempt status. https://www.irs.gov/pub/irs-pd... [irs.gov] That is a very clear form of regulation of speech.

    When "expression" in code form is used to conduct regulated activities, there's no reason the government would be prevented from engaging in regulation.

    • The 1st Amendment protects the freedom of religion and speech, but that doesn't mean it can't regulate that speech. For example, if a church crosses certain thresholds of political or lobbying activity, it can lose its tax-exempt status. https://www.irs.gov/pub/irs-pd... [irs.gov] That is a very clear form of regulation of speech.

      When "expression" in code form is used to conduct regulated activities, there's no reason the government would be prevented from engaging in regulation.

      With respect, that's not a regulation of speech. That's a consequence of speech. The IRS is simply saying "You can't do X if you want tax exempt status, but if that doesn't matter to you, go ahead and knock yourself out with as much X as you like".

      And I emphatically disagree that the 1st allows any "regulation" of speech. It is not, and under the 1st, cannot be illegal to say or write anything. You can say that Paris Hilton is a reptilian that eats children, and there's nothing the government can do to stop

      • Speech, and the "consequences" of that speech, is a distinction without a difference. Consequences, large and small, cannot be separated from the speech that causes those consequences.. If you say that the government can regulate the consequences but not the speech itself, this opens the door for the government to impose whatever laws or regulations it wants, targeting those consequences.

        Libel laws are an example where laws do target a specific kind of speech, and these could well apply to your Paris Hilton

        • by bws111 ( 1216812 )

          There certainly IS a difference. Let's take the classic example of yelling fire in a theater. There is no law that says you can't yell fire in a theater. If you yell fire in a theater (for instance, if it is part of a play) and nothing happens as a result, there is no problem. However, if you yell fire, and a panic ensues and people are injured, you certainly can be held responsible for that. Not because of your speech (the word fire), but because of the consequences of your speech (panic).

          Alex Jones w

    • by bws111 ( 1216812 )

      That is an incredibly bad example. The only reason churches are tax exempt is to protect a boundary between church and state. If a church breaks that boundary with political activity and lobbying then they are no longer protected by it and are subject to taxes like everyone else. That is in no way a 'regulation of speech'. They are perfectly free to make whatever speech they want, but they can't then pretend that there should be a separation of church and state when it was themselves who broke the sepa

      • The tax exemption of churches has nothing to do with their connection to religion. The 501(c)3 tax exemption is for any charitable organization, religious or not. https://www.irs.gov/charities-... [irs.gov].

        Lobbying has been held by the Supreme Court to be a form of constitutionally protected speech. https://www.fec.gov/legal-reso... [fec.gov]

        So while lobbying is protected speech, a church OR nonreligious charity cannot engage in it and maintain their tax-exempt status.

        You may disagree with the Supreme Court ruling, but I cert

  • The Supreme Court can protect or fail to protect anything, all that's required is to convince five of them to violate their oath to uphold the Constitution. It's easy to see it happening given that majorities have already voted to go back on their sworn words to Congress, or that they just don't like what the Constitution says. It would be just as easy for them to claim that the Constitution's first amendment "free speech" clause doesn't apply to code to be interpreted by electronic computers, as such compu

  • by fuzzyfuzzyfungus ( 1223518 ) on Monday September 19, 2022 @06:04AM (#62894311) Journal
    Is there something about this question that makes more sense than "Do America's free speech protections protect speech and prevent fraud regulation?"

    Sure, first amendment considerations would make it a lot more difficult to criminalize merely creating, writing about, or possessing a given cryptocurrency implementation; but pretty much the moment you actually use it for whatever flavor of computationally expensive securities fraud you were hoping to get away with that becomes a lot less relevant because the fraud is what you'll get in trouble for.
  • If code is "normal" speech, like a book, then it is protected but a copy goes into the Library of Congress for everyone to read. It is also copywrited, not patented.

    The 1st Amendment protects public expression, not private behind-closed-doors (where they can't hear or stop it) or in encrypted binaries (where nobody can see it). If you want to call it protected speech, you have to make it public. If you don't want Congress/regulators/competitors to see it, don't call it speech.

    There's your dilemma, p

  • by jvkjvk ( 102057 ) on Monday September 19, 2022 @02:32PM (#62895609)

    Why should cryptocurrency regulation be a free speech issue at all? Unless you believe that fraud and ponzi schemes are also free speech issues, I suppose.

  • I'm already investing in cryptocurrencies. I started buying cryptocurrency about a year ago, so I already have good results. Now I want to buy NFT, but so far I don't feel very confident in this area. To fix it, I found a blog at the link https://envelop.medium.com/ava... [medium.com] which has a lot of great and informative articles that keep me up to date with various news about the nft market.

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