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Maybe try google before making statements like that. The decision was Bernstein vs. US. Prior to that, export controls prevented PGP source code from being exp

by DennisP 2mo ago

Maybe try google before making statements like that. The decision was Bernstein vs. US. Prior to that, export controls prevented PGP source code from being exported from the US. Advocates printed it in books and exported those, which helped clarify the issue. Bernstein was a math student who made his own encryption software. The government tried to make him register as an arms dealer, and he sued in 1996, with the backing of the EFF. The result was a landmark decision that established source code as free speech and basically destroyed export controls on cryptography. In 2016, Apple cited the decision when the government tried to hack a suspect's phone, saying they couldn't be compelled to "speak" by writing code.

otterley 2mo ago
It is you who needs to do your research. That was not PGP. The Bernstein case was about Snuffle. In that very same case, the Ninth Circuit Court of Appeals said: "We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech."
- DennisP 2mo ago
  Yes, I mentioned that Bernstein made his own software. But that was in the context of a huge public controversy over encryption regulations, mostly focused on PGP, and after the Bernstein decision, the Clinton administration eased up on export restrictions and moved them to the Commerce department. Junger vs Daley strengthened the Bernstein decision, ruling that all source code is protected speech. https://en.wikipedia.org/wiki/Junger_v._Daley https://en.wikipedia.org/wiki/Junger_v._Daley
  - otterley 2mo ago
    Yes, Junger v. Daley held that source code is speech for the purpose of First Amendment analysis in the Sixth Circuit. (The question has not yet been presented to the Supreme Court.) But the inquiry doesn't stop there. First Amendment jurisprudence doesn't stop at asking the question "is this speech?". That's just a threshold question. If the answer is "no," then the case is analyzed one way. If the answer is "yes," then the case analyzed a different way. Think of it like a decision step in a flowchart. Code being treated as speech doesn't automatically mean that software developers can do whatever they want, just like it doesn't mean that people who write, draw, make music, etc. can do whatever they want. It's not the magic unassailable defense you claim it to be. Courts will apply a balancing test to determine whether the Government's interest in prohibiting the speech outweighs the Constitutional interest in protecting it. The answer comes out different ways depending on the facts and the law, which is complicated. For example, it's unlawful to make and distribute CSAM. It's unlawful to defame someone. It's unlawful to defraud someone. It's unlawful to violate others' copyrights. You have to label food and medicine a certain way. These are all forms of speech, but the courts have held that none of these restrictions (or requirements) violate the First Amendment. And I don't think we'd all be cheering someone on and claiming "code is speech" for someone who writes ransomware or software whose sole purpose is to drain your bank accounts or shut down power plants.
    - DennisP 2mo ago
      I didn't claim it's a magic unassailable defense. I claimed, contrary to the previous comment, that it's a valid defense. Maybe the courts will carve out a new exception for some particular type of code, maybe they won't, but what they certainly won't do is laugh at you for defending your code on free speech grounds. Just because a legislature passes a law doesn't mean the courts will agree that the law is valid under the Constitution. And the bar for compelling any particular speech is generally quite high. Apple could not be compelled to put a backdoor in an iPhone, even though the suspect was the San Bernardino shooter, and this did not result in Apple losing their ability to sell iPhones. The courts may well hold that you can't compel a Linux distro to implement a particular feature either.
busterarm 2mo ago
That wasn't PGP, it was Snuffle.

by DennisP 2mo ago

otterley 2mo ago

It is you who needs to do your research. That was not PGP. The Bernstein case was about Snuffle. In that very same case, the Ninth Circuit Court of Appeals said: "We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech."

DennisP 2mo ago
Yes, I mentioned that Bernstein made his own software. But that was in the context of a huge public controversy over encryption regulations, mostly focused on PGP, and after the Bernstein decision, the Clinton administration eased up on export restrictions and moved them to the Commerce department. Junger vs Daley strengthened the Bernstein decision, ruling that all source code is protected speech. https://en.wikipedia.org/wiki/Junger_v._Daley https://en.wikipedia.org/wiki/Junger_v._Daley
- otterley 2mo ago
  Yes, Junger v. Daley held that source code is speech for the purpose of First Amendment analysis in the Sixth Circuit. (The question has not yet been presented to the Supreme Court.) But the inquiry doesn't stop there. First Amendment jurisprudence doesn't stop at asking the question "is this speech?". That's just a threshold question. If the answer is "no," then the case is analyzed one way. If the answer is "yes," then the case analyzed a different way. Think of it like a decision step in a flowchart. Code being treated as speech doesn't automatically mean that software developers can do whatever they want, just like it doesn't mean that people who write, draw, make music, etc. can do whatever they want. It's not the magic unassailable defense you claim it to be. Courts will apply a balancing test to determine whether the Government's interest in prohibiting the speech outweighs the Constitutional interest in protecting it. The answer comes out different ways depending on the facts and the law, which is complicated. For example, it's unlawful to make and distribute CSAM. It's unlawful to defame someone. It's unlawful to defraud someone. It's unlawful to violate others' copyrights. You have to label food and medicine a certain way. These are all forms of speech, but the courts have held that none of these restrictions (or requirements) violate the First Amendment. And I don't think we'd all be cheering someone on and claiming "code is speech" for someone who writes ransomware or software whose sole purpose is to drain your bank accounts or shut down power plants.
  - DennisP 2mo ago
    I didn't claim it's a magic unassailable defense. I claimed, contrary to the previous comment, that it's a valid defense. Maybe the courts will carve out a new exception for some particular type of code, maybe they won't, but what they certainly won't do is laugh at you for defending your code on free speech grounds. Just because a legislature passes a law doesn't mean the courts will agree that the law is valid under the Constitution. And the bar for compelling any particular speech is generally quite high. Apple could not be compelled to put a backdoor in an iPhone, even though the suspect was the San Bernardino shooter, and this did not result in Apple losing their ability to sell iPhones. The courts may well hold that you can't compel a Linux distro to implement a particular feature either.

busterarm 2mo ago

That wasn't PGP, it was Snuffle.