3 ms·

> Executing code isn't speech This is for the courts to decide I guess

makoz 4y ago
Really? If I execute a script that DDoS someone, presumably it should not be treated as "speech" as if it is a protected right. That's such a hilariously slippery slope since you can arguably do "anything" via executing code.
- arthurcolle 4y ago
  Nah your example is more like performing a magic spell that prohibits others from speaking (DDoSing a public service site, as an example)
- nradov 4y ago
  Denial of service attacks are explicitly illegal under the National Infrastructure Protection Act (NIIPA). I don't think a defendant has ever successfully challenged that law on First Amendment grounds, so the basic legal issues appear to be settled. Of course as a practical matter it can be difficult to prosecute DDoS attackers under that statute. Either they don't leave hard evidence, or they hide in countries which don't extradite.
CrazyStat 4y ago
Courts have already decided this decades ago. At least as far back as Junger v. Daley [1], where the courts recognize a distinction between the expressive power of code as it is read by a person and the functional power of code when it is executed. While the expressive power of code creates a first amendment interest, the functional power of code may create a legitimate government interest in regulating that speech. The applicable legal test is from United States v. O'Brien [2], which ruled that even though burning a draft card may be expressive speech, the government's interest in draft cards not getting burnt allows them to forbid it without falling afoul of the first amendment. Junger v. Daley was cited as precedent in Universal City Studios v. Reimerdes [3], where the courts ruled that the functional power of DeCSS being illegal under the DMCA was sufficient to justify banning the distribution of the DeCSS source code. [1] https://en.wikipedia.org/wiki/Junger_v._Daley https://en.wikipedia.org/wiki/Junger_v._Daley [2] https://en.wikipedia.org/wiki/United_States_v._O%27Brien https://en.wikipedia.org/wiki/United_States_v._O%27Brien [3] https://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v._Reimerdes https://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v...

Really? If I execute a script that DDoS someone, presumably it should not be treated as "speech" as if it is a protected right. That's such a hilariously slippery slope since you can arguably do "anything" via executing code.

arthurcolle 4y ago
Nah your example is more like performing a magic spell that prohibits others from speaking (DDoSing a public service site, as an example)
nradov 4y ago
Denial of service attacks are explicitly illegal under the National Infrastructure Protection Act (NIIPA). I don't think a defendant has ever successfully challenged that law on First Amendment grounds, so the basic legal issues appear to be settled. Of course as a practical matter it can be difficult to prosecute DDoS attackers under that statute. Either they don't leave hard evidence, or they hide in countries which don't extradite.

CrazyStat 4y ago

Courts have already decided this decades ago. At least as far back as Junger v. Daley [1], where the courts recognize a distinction between the expressive power of code as it is read by a person and the functional power of code when it is executed. While the expressive power of code creates a first amendment interest, the functional power of code may create a legitimate government interest in regulating that speech. The applicable legal test is from United States v. O'Brien [2], which ruled that even though burning a draft card may be expressive speech, the government's interest in draft cards not getting burnt allows them to forbid it without falling afoul of the first amendment. Junger v. Daley was cited as precedent in Universal City Studios v. Reimerdes [3], where the courts ruled that the functional power of DeCSS being illegal under the DMCA was sufficient to justify banning the distribution of the DeCSS source code. [1] https://en.wikipedia.org/wiki/Junger_v._Daley https://en.wikipedia.org/wiki/Junger_v._Daley [2] https://en.wikipedia.org/wiki/United_States_v._O%27Brien https://en.wikipedia.org/wiki/United_States_v._O%27Brien [3] https://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v._Reimerdes https://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v...