4 ms·

Isn't this a first amendment violation? Are we not on board with the notion that code is speech, and that the constitution applies to everyone, not just US citi

Isn't this a first amendment violation? Are we not on board with the notion that code is speech, and that the constitution applies to everyone, not just US citizens? With those things in mind, I don't understand how the Iranian peoples' free speech rights can be infringed just because their speech is in the form of code.

driverdan 7y ago
That's not how the First Amendment works. It applies to the government, not private businesses.
- hyperpape 7y ago
  I think that's not right, because the reason the company is doing the censoring is to comply with sanctions imposed by the government. If the US says you can't host content praising Iran, and GitHub takes it down to comply, that's a 1st Amendment violation. However, code seems to be in a strange place, neither clearly speech nor clearly not-speech.
  - mullingitover 7y ago
    I argue code is absolutely protected speech. The government ran away[1] from a recent case that would've settled the matter conclusively. [1] https://www.pbs.org/wgbh/nova/article/is-code-free-speech/ https://www.pbs.org/wgbh/nova/article/is-code-free-speech/
jkaplowitz 7y ago
Whatever free speech rights apply to Iranians in Iran don't come from the US Constitution, not even from its First Amendment. The US Constitution protects US citizens (and maybe non-citizen nationals) anywhere and anyone of any nationality within the US, with respect to their dealings with the US federal/ state / local governments or those private entities exercising the authority of these governments. That's it.
ben509 7y ago
If Github is acting as agents of the USG, they're bound by 1A. Here, there's a direct instruction from the government telling them to do this thing. But I'm not sure there's a 1A case against this form of trade sanctions. The government isn't saying Iranians (as an example) can't write code, or that US citizens can't write code. They're saying they Iranian citizens can't use a US service. It's being denied as an economic transaction, not as speech. Art I Sec 8 specifically enumerates the power "To regulate Commerce with foreign Nations...", and arguably sanctions are further allowed under the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;"
- mullingitover 7y ago
  So does that mean Iranians could just mirror the repo, someone in the US could mirror that repo, and then push the Iranians' commits to GitHub unimpeded by the sanctions?
  - ben509 7y ago
    In practice, of course they could unless Github specifically tracks that kind of thing. I'm no expert on sanctions law, I mostly know what I do from having read all the compliance stuff at work. There's a lot of law that's effectivey enforced by business. All the alcohol prohibition for minors, for instance, is enforced by your local bar checking ID. And many laws aren't intended to have perfect enforcement. Take taxes. Banks won't, for instance, send a 1099 to the IRS if you have a small balance, even if you earned some interest. And there's no one tracking your cash income, but if you had a large amount and got audited you could be in trouble. Likewise, sanctions aren't meant to be perfect, the intent is to hamper the target nation's economy by restricting most trade. So the law always has to be black and white as to whether a thing is illegal. It then deals with the "grey" part through how it enforces it. Here I'd observe it's not monitored by a deputized business, and the executive won't prioritize it.

driverdan 7y ago

That's not how the First Amendment works. It applies to the government, not private businesses.

hyperpape 7y ago
I think that's not right, because the reason the company is doing the censoring is to comply with sanctions imposed by the government. If the US says you can't host content praising Iran, and GitHub takes it down to comply, that's a 1st Amendment violation. However, code seems to be in a strange place, neither clearly speech nor clearly not-speech.
- mullingitover 7y ago
  I argue code is absolutely protected speech. The government ran away[1] from a recent case that would've settled the matter conclusively. [1] https://www.pbs.org/wgbh/nova/article/is-code-free-speech/ https://www.pbs.org/wgbh/nova/article/is-code-free-speech/

jkaplowitz 7y ago

Whatever free speech rights apply to Iranians in Iran don't come from the US Constitution, not even from its First Amendment. The US Constitution protects US citizens (and maybe non-citizen nationals) anywhere and anyone of any nationality within the US, with respect to their dealings with the US federal/ state / local governments or those private entities exercising the authority of these governments. That's it.

ben509 7y ago

If Github is acting as agents of the USG, they're bound by 1A. Here, there's a direct instruction from the government telling them to do this thing. But I'm not sure there's a 1A case against this form of trade sanctions. The government isn't saying Iranians (as an example) can't write code, or that US citizens can't write code. They're saying they Iranian citizens can't use a US service. It's being denied as an economic transaction, not as speech. Art I Sec 8 specifically enumerates the power "To regulate Commerce with foreign Nations...", and arguably sanctions are further allowed under the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;"

mullingitover 7y ago
So does that mean Iranians could just mirror the repo, someone in the US could mirror that repo, and then push the Iranians' commits to GitHub unimpeded by the sanctions?
- ben509 7y ago
  In practice, of course they could unless Github specifically tracks that kind of thing. I'm no expert on sanctions law, I mostly know what I do from having read all the compliance stuff at work. There's a lot of law that's effectivey enforced by business. All the alcohol prohibition for minors, for instance, is enforced by your local bar checking ID. And many laws aren't intended to have perfect enforcement. Take taxes. Banks won't, for instance, send a 1099 to the IRS if you have a small balance, even if you earned some interest. And there's no one tracking your cash income, but if you had a large amount and got audited you could be in trouble. Likewise, sanctions aren't meant to be perfect, the intent is to hamper the target nation's economy by restricting most trade. So the law always has to be black and white as to whether a thing is illegal. It then deals with the "grey" part through how it enforces it. Here I'd observe it's not monitored by a deputized business, and the executive won't prioritize it.