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> Open model weight bans will likely be struck down as First Amendment violations because, at their core, model weights are a form of expression. They embody th

> Open model weight bans will likely be struck down as First Amendment violations because, at their core, model weights are a form of expression. They embody the ideas, research, and innovations of their creators, similar to how code was deemed a form of speech protected under the First Amendment during the encryption debates of the 1990s I hope you are right, but I think there are some nuances here you aren't considering. Courts have ruled that code is protected under the 1st Amendment because it is something created by human beings, and expresses the ideas and style of its human authors. There is a clear analogy to literary works – which is also supported by the precedent of copyright law protecting computer source code on the grounds that it is a type of literary work – and literary works are a core part of the 1st Amendment's scope as traditionally understood (even back to its original framers). Whereas, model weights are just a bunch of numbers produced by an automated process. The legal argument that they should be protected by the 1st Amendment is much less clearcut. I would be happy if they were found to be so protected, but one ought to be careful to distinguish what one would like the law to be, from what it actually is.

Hizonner 3y ago
The statement that "if you process the following list of numbers like this, you'll get that result" is human-created speech. It's generally really easy to mix one category of information with another. The DeCSS song is a great example of somebody using a little bit of cleverness to inextricably combine functional code with core protected political expression. Even if you thought "pure" code was not speech, removing the code from the song would destroy the message of the parts that clearly are speech, and there's no obvious alternative way to send that message. https://www.youtube.com/watch?v=PmLpLdGzNpo https://www.youtube.com/watch?v=PmLpLdGzNpo ... but you're right that it's not a slam dunk in real court. What is almost certain is that the argument's strong enough for any regulations to end up stayed while the issue worked its way through a very long legal process. Probably long enough to make the whole question moot. Basically it's a waste of time for any US Government agency to try this.
- skissane 3y ago
  > The DeCSS song is a great example of somebody using a little bit of cleverness to inextricably combine functional code with core protected political expression. Keep in mind the outcome of the DeCSS case - the Second Circuit did hold the DeCSS code to be protected speech, but it also upheld the DMCA as a constitutional restriction on that speech under intermediate scrutiny. The losing side decided not to appeal, because of the risk SCOTUS might uphold the decision One could fine-tune an LLM to defend a particular political viewpoint - and you might thereby argue that model weights are expressive and hence within the scope of 1A. But, if all the government does, is ban open model distribution above a particular parameter size, the government will argue that is a content-neutral restriction (it applies to all LLMs regardless of their viewpoint). It would essentially be a “time, place and manner” restriction, and thus subject to “intermediate scrutiny” - which requires it to be “an important government interest and substantially related to that interest”. And I’m afraid the government has a decent chance of winning there - they just need to convince the Court that AI risks are real, and this regulation is substantially related to controlling them - and I doubt they’ll struggle to convince SCOTUS justices of that (none of whom really understand AI), and if experts are telling them it is risky, they’ll believe them, and they will hesitate to stop the government from trying to regulate those risks Whereas, if the US government went beyond a mere parameter size limit, and tried to impose “safety standards” on LLMs based on the kind of content they generate (disinformation, extremism, hate speech, etc) - that is harder to justify as content-neutral, and lack of content neutrality makes strict scrutiny apply, and the government is much more likely to lose there. The conservative justices especially are likely to view many of those standards as having a progressive political bias > What is almost certain is that the argument's strong enough for any regulations to end up stayed while the issue worked its way through a very long legal process. Probably long enough to make the whole question moot. Yes, it is likely to get tied up in the courts for a long time, and decent (but not certain) odds the regulations get suspended while the case proceeds, and the longer they are suspended for without the sky falling, it does tend to undermine the government’s case that they are substantially necessary. However, I’m not sure if that will really be decisive, because AI safety experts will always claim “we got lucky with this generation, the risk for next year’s or next decade’s remains very real”, and SCOTUS justices will probably believe them
dragonwriter 3y ago
> Courts have ruled that code is protected under the 1st Amendment because it is something created by human beings, and expresses the ideas and style of its human authors. They’ve also allowed non-content-based restrictions of that speech under intermediate scrutiny, and content-based restrictions under strict scrutiny, so that LLMs might be within the scope of things to which 1A protection applies does not mean that restrictions on distributing open LLM weights would necessarily violate the 1A.
- skissane 3y ago
  I agree. I just posted a reply to a sibling comment saying the same. I personally think the odds are decent that content-neutral parameter size-based distribution restrictions will be upheld under intermediate scrutiny. Personally I am opposed to such restrictions and think they are a stupid mistake, but I can separate my own feelings about a topic from how SCOTUS is likely to perceive it Whereas, I’m sceptical that any content-based regulations (require LLMs to have safeguards to prevent them from generating disinformation, extremism, hate speech, etc) will survive strict scrutiny. Even if there is some category of content which is so horrible that SCOTUS will conclude the government is justified in restricting LLMs from producing it, it is basically technically impossible to design safeguards that only apply to that horrible content without collateral damage on less horrible content. Given that reality, I doubt any content-based LLM restrictions will be upheld

Hizonner 3y ago

The statement that "if you process the following list of numbers like this, you'll get that result" is human-created speech. It's generally really easy to mix one category of information with another. The DeCSS song is a great example of somebody using a little bit of cleverness to inextricably combine functional code with core protected political expression. Even if you thought "pure" code was not speech, removing the code from the song would destroy the message of the parts that clearly are speech, and there's no obvious alternative way to send that message. https://www.youtube.com/watch?v=PmLpLdGzNpo https://www.youtube.com/watch?v=PmLpLdGzNpo ... but you're right that it's not a slam dunk in real court. What is almost certain is that the argument's strong enough for any regulations to end up stayed while the issue worked its way through a very long legal process. Probably long enough to make the whole question moot. Basically it's a waste of time for any US Government agency to try this.

skissane 3y ago
> The DeCSS song is a great example of somebody using a little bit of cleverness to inextricably combine functional code with core protected political expression. Keep in mind the outcome of the DeCSS case - the Second Circuit did hold the DeCSS code to be protected speech, but it also upheld the DMCA as a constitutional restriction on that speech under intermediate scrutiny. The losing side decided not to appeal, because of the risk SCOTUS might uphold the decision One could fine-tune an LLM to defend a particular political viewpoint - and you might thereby argue that model weights are expressive and hence within the scope of 1A. But, if all the government does, is ban open model distribution above a particular parameter size, the government will argue that is a content-neutral restriction (it applies to all LLMs regardless of their viewpoint). It would essentially be a “time, place and manner” restriction, and thus subject to “intermediate scrutiny” - which requires it to be “an important government interest and substantially related to that interest”. And I’m afraid the government has a decent chance of winning there - they just need to convince the Court that AI risks are real, and this regulation is substantially related to controlling them - and I doubt they’ll struggle to convince SCOTUS justices of that (none of whom really understand AI), and if experts are telling them it is risky, they’ll believe them, and they will hesitate to stop the government from trying to regulate those risks Whereas, if the US government went beyond a mere parameter size limit, and tried to impose “safety standards” on LLMs based on the kind of content they generate (disinformation, extremism, hate speech, etc) - that is harder to justify as content-neutral, and lack of content neutrality makes strict scrutiny apply, and the government is much more likely to lose there. The conservative justices especially are likely to view many of those standards as having a progressive political bias > What is almost certain is that the argument's strong enough for any regulations to end up stayed while the issue worked its way through a very long legal process. Probably long enough to make the whole question moot. Yes, it is likely to get tied up in the courts for a long time, and decent (but not certain) odds the regulations get suspended while the case proceeds, and the longer they are suspended for without the sky falling, it does tend to undermine the government’s case that they are substantially necessary. However, I’m not sure if that will really be decisive, because AI safety experts will always claim “we got lucky with this generation, the risk for next year’s or next decade’s remains very real”, and SCOTUS justices will probably believe them

dragonwriter 3y ago

> Courts have ruled that code is protected under the 1st Amendment because it is something created by human beings, and expresses the ideas and style of its human authors. They’ve also allowed non-content-based restrictions of that speech under intermediate scrutiny, and content-based restrictions under strict scrutiny, so that LLMs might be within the scope of things to which 1A protection applies does not mean that restrictions on distributing open LLM weights would necessarily violate the 1A.

skissane 3y ago
I agree. I just posted a reply to a sibling comment saying the same. I personally think the odds are decent that content-neutral parameter size-based distribution restrictions will be upheld under intermediate scrutiny. Personally I am opposed to such restrictions and think they are a stupid mistake, but I can separate my own feelings about a topic from how SCOTUS is likely to perceive it Whereas, I’m sceptical that any content-based regulations (require LLMs to have safeguards to prevent them from generating disinformation, extremism, hate speech, etc) will survive strict scrutiny. Even if there is some category of content which is so horrible that SCOTUS will conclude the government is justified in restricting LLMs from producing it, it is basically technically impossible to design safeguards that only apply to that horrible content without collateral damage on less horrible content. Given that reality, I doubt any content-based LLM restrictions will be upheld