Monday, October 19, 2009

Is Software Code a Type of Free Speech?

As protest movements migrate into cyberspace, there is a growing legal debate over to what extent the programmers who write its source code are actually expressing themselves. In other words, is code only functional, or is it also expressive? And more importantly, should source code be Constitutionally-protected as a type of free speech?

In an article written last month in Cultural Anthropology, NYU's Gabriella Coleman comes down on the side of "code is speech". She cites examples of how programmers have used their source code as a means of political expression, and, particularly, as protest actions.

For example, one software developer, Seth Schoen, published a haiku in 2001 that was actually a transcoding of a free piece of software called DeCSS, which could be used to decrypt access controls on copyrighted DVDs. Schoen wrote his haiku (spreading DeCSS's source code) as part of a wave of protests following the arrest of DeCSS's co-author, Jon Lech Johansen.

Typically, written forms of expressions - haikus, poems, essays, etc. - are protected as free speech by the First Amendment. However, should they still be considered as such when their true intent, critics argue, is simply to facilitate illegal acts of DVD piracy? On the other hand, isn't the source code the haiku is openly trying to mask a form of civil disobedience, nonetheless? Isn't it ultimately still an idea that people are trying to express?

Coleman pushes the argument that "code is speech" further. She argues that there is an emerging trend of programmers and technologists gaining a facility for the law and, consequently, tinkering with it to suit their needs. This informal legal expertise is being acquired, then shared, as a means of challenging regimes that obstruct them. Once empowered, these techie-turned-amateur-legal-experts engage in "contentious politics" to advocate for their causes.

Ultimately, programmers are collectively attempting to construct new legal definitions and artifacts - a process that theorist Robert Cover calls "jurisgenesis". Developers are challenging the idea of software as property "by crafting new free speech theories to defend the idea of software as speech".

It's a fascinating development that's occurring right before our eyes, and it's pretty evident once we take a step back and look at it. I, myself, am apparently an unwitting part of this movement, being a programmer-turned-academic who has "infiltrated" the ivory towers to redefine the meanings of internet technologies for the intellectual establishment.

Either that or I just have too much time on my hands :-)

The fact is that, more and more frequently, source code really is being written as a form of expression, and when that's the case, it ought to be considered a type of speech. That doesn't mean it's suddenly legal to pirate DVDs; only that the sharing of ideas shouldn't so haphazardly be censored in the name of copyright infringement. After all, if the courts have ruled that the Anarchist Cookbook is legally able to publish tutorials on how to make bombs, as a protected form of free speech, then a haiku masking some C++ code doesn't seem nearly as destructive.

But, I guess that depends on who you ask.
  

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