4 ms·

Are these laws not 1A violations due to code being speech and the gov not being allowed to compel speech?

dragonwriter 7mo ago
To the extent code is functional rather than expressive it is not speech, and when the government seeks to compel code, it generally seeks to compel function not expressive content. (That doesn’t mean it is not a bad idea, and even perhaps unconstitutional for other reasons.)
- arcfour 7mo ago
  Code is speech, though, and is protected by the first amendment: see Bernstein v. United States. I don't think a cryptographic algorithm is "expressive" any more than it is purely functional; indeed, the 9th circuit evaluated and rejected the expressive/functional distinction for source code in the above case. Regardless - code is speech, and the government cannot compel or prevent speech except in very narrow circumstances.
  - johncolanduoni 7mo ago
    Very narrow circumstances like the DMCA? I don’t think the jurisprudence is as simple as you’re making it out to be.
  - LoganDark 7mo ago
    Code may be speech, but the functional characteristics of systems that happen to rely on code may not always also be speech.
    - arcfour 7mo ago
      I'm not sure what you're trying to say, but if you are suggesting that writing an "API", as is legally required in AB1043, can be done without writing code I would be interested to know how!
      - dragonwriter 7mo ago
        Writing an API is not required by AB1043. Providing an API is required if you do some other thing, but you are not required to do that other thing. Requirements that are triggered by engaging in some other activity are not compulsions if the activity they are triggered by is not compulsory. (Now, whether restricting the thing that triggers the requirement by adding the requirement is permissible is a legitimate question, but that is not the question that is addressed when you ignore the thing triggering the requirement and treat the requirement as a free-standing mandate.)
        arcfour 7mo ago
        > Provide a developer who has requested a signal with respect to a particular user with a digital signal via a reasonably consistent real-time application programming interface that identifies, at a minimum, which of the following categories pertains to the user...
        dragonwriter 7mo ago
        Yes, and the other thing you have to do for this to be applicable to you is choose to be an "operating system provider", as defined in the law. If you don't want to write, hire someone to write, pay someone to provide an implementation that has already been written, or acquire an implementation already written that is available without payment, such an API, you can simply choose not to do what is defined as being an “operating system provider”, and no obligation attaches, No one is putting a gun to your head and forcing you to do labor to write code for an API.
        arcfour 7mo ago
        If you write an operating system and distribute it (an act of speech) you are forced to do this or else you risk $7500/child/day in fines from the California AG. The law makes no distinction between Terry Davis and Microsoft. (In fact, you could say TempleOS is protected religious speech...!) I don't know what's wrong with you, honestly, that you would so vivaciously defend this impractical, immoral and completely nonsensical law so vivaciously. It is seriously disturbing.
  - dragonwriter 7mo ago
    > Code is speech, though, and is protected by the first amendment: see Bernstein v. United States. That is very much overstating the holding in the case [0], the most relevant part of which seems to be: “encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes” The ruling spends a key bit of analysis discussing the expressive function of source code in this field as distinct from the function of object code in controlling a computer. A law compelling providing functionality which it is merely most convenient to comply with by creating source code as part of the process is not directing speech, any more than an law delivery of physical goods where the most convenient method of doing so involves interacting by speech with the person who physically holds them on your behalf is. [0] text here: https://law.resource.org/pub/us/case/reporter/F3/176/176.F3d.1132.97-16686.html https://law.resource.org/pub/us/case/reporter/F3/176/176.F3d...
    - panny 7mo ago
      >A law compelling providing functionality That's forced labor. I'm not required to write a line of code to please anyone. It's free software with no warranty. They have LLMs, let's see them build it. :)
      - dragonwriter 7mo ago
        > > A law compelling providing functionality > That's forced labor. Well, that's a 13th Amendment issue not a 1st Amendment one, but, in any case, its not forced if it doesn't direct who does the work to create the functionality, only requires you to have the functionality provided if you are doing some other activity, it is more of an in-kind tax. [0] (Now, if you want to make an argument that when the activity it is conditioned on is expressive that that makes it a 1A violation as a content-based regulation when the condition is tied to the content of the expressive act, that is a better 1A argument, that might actually have some merit against many of the real uses of, say, age verification laws; but “if I am doing this activity, I must either create or acquire and use software that has a specified function” is not, in general, a 1A violation.) [0] It's not really that other than metaphorically, either, any more than every regulation of any kind is an “in-kind tax”, but its far closer to that than “forced labor”.
cobbzilla 7mo ago
Bernstein v US says you’re right but let’s see if it gets there and hope they get legal reasoning right. One can hope the EFF and others are on this. Anyone know about any current challenges?
gzread 7mo ago
To about the same extent that food labeling is a 1A violation.
- muyuu 7mo ago
  I'm not American but it seems to me like both things are violations, which is troubling because you enter into the disturbing necessity to start carving exceptions obviously these regulations are very different, but both do compel speech
  - gzread 7mo ago
    Yes. And yet nobody opposes food labelling except for fraudulent food companies. Sometimes people just think compelled speech is good.

To the extent code is functional rather than expressive it is not speech, and when the government seeks to compel code, it generally seeks to compel function not expressive content. (That doesn’t mean it is not a bad idea, and even perhaps unconstitutional for other reasons.)

arcfour 7mo ago
Code is speech, though, and is protected by the first amendment: see Bernstein v. United States. I don't think a cryptographic algorithm is "expressive" any more than it is purely functional; indeed, the 9th circuit evaluated and rejected the expressive/functional distinction for source code in the above case. Regardless - code is speech, and the government cannot compel or prevent speech except in very narrow circumstances.
- johncolanduoni 7mo ago
  Very narrow circumstances like the DMCA? I don’t think the jurisprudence is as simple as you’re making it out to be.
- LoganDark 7mo ago
  Code may be speech, but the functional characteristics of systems that happen to rely on code may not always also be speech.
  - arcfour 7mo ago
    I'm not sure what you're trying to say, but if you are suggesting that writing an "API", as is legally required in AB1043, can be done without writing code I would be interested to know how!
    - dragonwriter 7mo ago
      Writing an API is not required by AB1043. Providing an API is required if you do some other thing, but you are not required to do that other thing. Requirements that are triggered by engaging in some other activity are not compulsions if the activity they are triggered by is not compulsory. (Now, whether restricting the thing that triggers the requirement by adding the requirement is permissible is a legitimate question, but that is not the question that is addressed when you ignore the thing triggering the requirement and treat the requirement as a free-standing mandate.)
      - arcfour 7mo ago
        > Provide a developer who has requested a signal with respect to a particular user with a digital signal via a reasonably consistent real-time application programming interface that identifies, at a minimum, which of the following categories pertains to the user...
        dragonwriter 7mo ago
        Yes, and the other thing you have to do for this to be applicable to you is choose to be an "operating system provider", as defined in the law. If you don't want to write, hire someone to write, pay someone to provide an implementation that has already been written, or acquire an implementation already written that is available without payment, such an API, you can simply choose not to do what is defined as being an “operating system provider”, and no obligation attaches, No one is putting a gun to your head and forcing you to do labor to write code for an API.
        arcfour 7mo ago
        If you write an operating system and distribute it (an act of speech) you are forced to do this or else you risk $7500/child/day in fines from the California AG. The law makes no distinction between Terry Davis and Microsoft. (In fact, you could say TempleOS is protected religious speech...!) I don't know what's wrong with you, honestly, that you would so vivaciously defend this impractical, immoral and completely nonsensical law so vivaciously. It is seriously disturbing.
- dragonwriter 7mo ago
  > Code is speech, though, and is protected by the first amendment: see Bernstein v. United States. That is very much overstating the holding in the case [0], the most relevant part of which seems to be: “encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes” The ruling spends a key bit of analysis discussing the expressive function of source code in this field as distinct from the function of object code in controlling a computer. A law compelling providing functionality which it is merely most convenient to comply with by creating source code as part of the process is not directing speech, any more than an law delivery of physical goods where the most convenient method of doing so involves interacting by speech with the person who physically holds them on your behalf is. [0] text here: https://law.resource.org/pub/us/case/reporter/F3/176/176.F3d.1132.97-16686.html https://law.resource.org/pub/us/case/reporter/F3/176/176.F3d...
  - panny 7mo ago
    >A law compelling providing functionality That's forced labor. I'm not required to write a line of code to please anyone. It's free software with no warranty. They have LLMs, let's see them build it. :)
    - dragonwriter 7mo ago
      > > A law compelling providing functionality > That's forced labor. Well, that's a 13th Amendment issue not a 1st Amendment one, but, in any case, its not forced if it doesn't direct who does the work to create the functionality, only requires you to have the functionality provided if you are doing some other activity, it is more of an in-kind tax. [0] (Now, if you want to make an argument that when the activity it is conditioned on is expressive that that makes it a 1A violation as a content-based regulation when the condition is tied to the content of the expressive act, that is a better 1A argument, that might actually have some merit against many of the real uses of, say, age verification laws; but “if I am doing this activity, I must either create or acquire and use software that has a specified function” is not, in general, a 1A violation.) [0] It's not really that other than metaphorically, either, any more than every regulation of any kind is an “in-kind tax”, but its far closer to that than “forced labor”.

cobbzilla 7mo ago

Bernstein v US says you’re right but let’s see if it gets there and hope they get legal reasoning right. One can hope the EFF and others are on this. Anyone know about any current challenges?

gzread 7mo ago

To about the same extent that food labeling is a 1A violation.

muyuu 7mo ago
I'm not American but it seems to me like both things are violations, which is troubling because you enter into the disturbing necessity to start carving exceptions obviously these regulations are very different, but both do compel speech
- gzread 7mo ago
  Yes. And yet nobody opposes food labelling except for fraudulent food companies. Sometimes people just think compelled speech is good.