
Computer source code secured First Amendment rights primarily through the landmark case Bernstein v. Department of Justice in the 1990s, which established that code is a form of protected speech. Here’s a concise overview of how this happened:
In the early 1990s, cryptography was classified as a “munition” under U.S. export control laws, requiring a license to share encryption software internationally, even online. Daniel Bernstein, a graduate student, developed an encryption algorithm called “Snuffle” and sought to publish its source code, a paper explaining it, and related software.
The U.S. government restricted this, citing national security concerns, as encryption was seen as a tool for concealing communications by adversaries. Bernstein, with support from the Electronic Frontier Foundation (EFF), sued the government, arguing that these restrictions violated his First Amendment rights. He contended that source code was a form of expression, akin to writing or speech, used to communicate ideas and instructions.
In 1996, Judge Marilyn Hall Patel in the Northern District of California ruled that computer source code is speech protected by the First Amendment, stating there was “no meaningful difference” between computer languages like C++ and human languages like German or French. This was a pivotal moment, as it was the first judicial ruling to explicitly recognize code as speech.
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The case progressed, and in 1999, the Ninth Circuit Court of Appeals upheld this principle in Bernstein v. Department of Justice, ruling that export controls on encryption software violated Bernstein’s First Amendment rights. The court emphasized that source code is an expressive means for exchanging information and ideas about programming. This decision led to regulatory changes, easing restrictions on publishing encryption software online without government approval.
Other cases reinforced this precedent. In Junger v. Daley (2000), the Sixth Circuit Court of Appeals ruled that source code is protected speech, as it communicates ideas to both humans and computers. Similarly, in Karn v. US Department of State, export controls on encryption were challenged, further solidifying the legal recognition of code as speech.
These rulings had broader implications:
They enabled the widespread use of encryption, enhancing online privacy and security for activities like banking and e-commerce.
They set a legal foundation for treating digital expression, including code, as equivalent to traditional forms of speech, influencing debates on issues like 3D-printed gun blueprints and AI computation. However, the protection is not absolute. Courts have clarified that while code is speech, its functionality can be regulated if it serves a substantial government interest, as seen in cases like Green v. U.S. Department of Justice (2022), where the Digital Millennium Copyright Act’s restrictions on code to bypass access controls were upheld.
The Bernstein case and its successors were critical in securing First Amendment protections for source code, balancing expressive freedom with regulatory needs, and shaping the digital landscape. The recognition of computer source code as protected speech under the First Amendment, primarily through Bernstein v. Department of Justice and related cases, has had significant and far-reaching implications.
The Bernstein ruling invalidated restrictive export controls on encryption software, allowing developers to freely share cryptographic tools online. This facilitated the integration of strong encryption into everyday technologies, such as HTTPS for secure websites, VPNs, and end-to-end encrypted messaging (e.g., WhatsApp, Signal). As a result, online privacy, secure communication, and e-commerce flourished, protecting users from surveillance and cyberattacks.
Protection of Digital Expression
By classifying source code as speech, courts established a precedent that digital forms of expression are entitled to First Amendment protections, similar to traditional speech like books or speeches. This has influenced legal debates over other digital artifacts, such as 3D-printed gun blueprints (Defense Distributed v. United States), AI algorithms, and even social media content, expanding the scope of free speech in the digital age.
The rulings empowered researchers, programmers, and open-source communities to publish and collaborate on code without fear of government censorship. This fostered innovation in software development, cybersecurity, and academic research, as developers could openly share ideas and tools globally.
The decisions curtailed the government’s ability to impose broad restrictions on code distribution under national security pretexts. However, courts have clarified that the functional aspects of code (e.g., its use in illegal activities) can still be regulated if there’s a substantial government interest, as seen in cases like Green v. U.S. Department of Justice (2022) regarding DMCA restrictions. This creates a nuanced balance between free speech and regulation.
The liberalization of encryption exports influenced global standards, enabling stronger cybersecurity worldwide. However, it also sparked tensions with governments seeking to regulate encryption for law enforcement purposes, leading to ongoing debates about “backdoors” and access to encrypted data. The precedent applies to new technologies, raising questions about whether code for AI models, blockchain smart contracts, or synthetic biology should also be protected as speech. For example, sharing code for controversial applications (e.g., deepfake algorithms) could be protected, complicating regulatory efforts.
Potential for Abuse
While protecting free speech, the rulings opened the door to legal challenges over code used for harmful purposes, such as malware or instructions for illegal devices. Courts must now distinguish between the expressive and functional roles of code, which can lead to complex litigation.
Securing First Amendment rights for source code has been foundational for digital innovation, privacy, and free expression, but it also poses ongoing challenges in balancing speech protections with societal and regulatory needs in an increasingly code-driven world.