Is Code Free Speech?

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On August 1, a chunk of code—an essay of 0s and 1s written in the language of computers—will become available to the public.

It might sound innocuous. Maybe even poetic. But download this code and feed it to a 3D printer, and you’ll be able to produce your very own deadly weapon. The information, soon available due to a landmark legal settlement that the United States Department of Justice made with plaintiff Cody Wilson two months ago, contains the computational language necessary to construct 3D-printed .38-caliber handguns and AR-15 assault rifles, among other lethal devices. Such weapons are untraceable; they don’t come with serial numbers, and no background check is required to make them.

Wilson, who founded the Texas-based nonprofit Defense Distributed, had filed a lawsuit against the U.S. government in 2015 on the grounds that, by prohibiting Wilson from posting his data, the State Department was violating not only his right to bear arms, but his right to free speech.

Is code, as an artificial language, subject to the same regulations as natural language?

But is computer code considered speech?

“I believe code should be considered speech,” said Laura Norén, a Moore-Sloan postdoctoral associate at New York University’s Center for Data Science. “It is certainly a form of expression used to communicate ideas. Additionally, it can be full of distinguishing characteristics. The code I write may obtain the same objectives as the code my colleague Chris writes, but that doesn’t mean we have produced exactly the same series of letters and symbols.”

But what about free speech?

“Whether code is covered by free speech is actually pretty settled. The answer is yes,” said Kendra Albert, a technology lawyer and affiliate at the Berkman Center for Internet and Society, as well as a clinical instructional fellow at the Cyberlaw Clinic at Harvard Law School.

In the 1990s, the Electronic Frontier Foundation—which, at the time, was a fairly new organization—took on a series of cases on behalf of a cryptographer named Daniel Bernstein, who argued that he had a right to make public certain cryptographic programs that he’d created. Bernstein wanted to publish an algorithm, a mathematical paper that explained the algorithm, and the source code for a computer program that incorporated it. But the government required Bernstein to apply for license to do all of this—and to submit his ideas for federal review.

Bernstein sued and eventually won the case. Software source code was deemed speech protected by the First Amendment.

But there was a catch: Bernstein’s encryption system, called “Snuffle,” was actually an attempt to bypass U.S. export restrictions on cryptography. Snuffle was, in effect, an instruction manual that showed how to use a cryptographic hash function, which was legal to export, as a strong encryption system (a system highly resistant to cryptanalysis), which was illegal to export, because the U.S. State Department classifies crypto software as munitions. Bernstein’s instructional code wasn’t the problem—it was the product that the code pointed to.

In this way, “nothing here is totally new,” Albert said. That is, Defense Distributed’s efforts to legalize publication of 3D-printed gun data is just another iteration of a decades-long debate.

Of course, code isn’t the only language that can point to the recipe for dangerous or illegal products. In 1979, a magazine called The Progressive filed a lawsuit against the United States Department of Energy because the latter wouldn’t allow the publication to run an article detailing the “secret” of the hydrogen bomb.

The difference is that today, society is still working on figuring out the role of the internet when it comes to things like 3D-printed blueprints and encryption code.

“The legal background of this case is incredibly wonky and complicated in a way that has made it hard for folks to parse what’s going on,” Albert said. “The way governments think about export controls is not necessarily well-aligned with how things work practically on the internet.”

Still, there are many circumstances under which the government can regulate speech. For example, local governments can dictate that you can’t make loud noises in a public park at midnight (though you might be surprised to hear that it’s not necessarily illegal to yell “fire” in a crowded theater). In certain contexts, code gets subject to regulation, too; the code written to encrypt movies and songs in order to protect artists’ copyright claims is one example of regulated code.

But “the idea that certain industries or groups may want to regulate who can use particular pieces of code does not negate the idea that code generally ought to be considered a mode of expression subject to protection under the First Amendment,” Nolén said.

In Cody Wilson’s case, the court never got around to evaluating the issue of the blueprints themselves—their functionality as opposed to their expressiveness—before settling.

George Moore, a developer for Hub City Media and frequent rap battler, says that how people use code—its functionality—can change its acceptability. He cites torrenting as an example.

“Torrenting in itself is not a bad thing,” he said. “It got a bad name because of how people used it.”

In simple terms, torrenting is a way to share large files over a network. “You have a file from a root source and multiple people download it,” Moore said. “Those people who download it are providing a redundancy so that if one of the sources goes down, you still have a bunch of people who will be able to provide that file for you.”

The word “torrenting” eventually took on negative connotations because people were using it to illegally share copyrighted content. But torrenting itself is, to many, a clever strategy—not an inherent evil.

So should you be worried about people making 3D-printed guns post-August 1?

Albert isn’t too worried. “Realistically, this information was already available online; three years ago, many people started making copies [of the blueprints].”

And the story isn’t over. “I think it seems unrealistic to paint this as a total victory for the Defense Distributed folks,” Albert said. “The government did not say, ‘We are wrong’; they said, ‘We’re just settling this, and you can now distribute these plans.’ Although Defense Distributed gets to do the thing that it set out to do when it filed the lawsuit, it doesn’t necessarily mean that this represents a sea change in the actual legal position they were in.”

Then there’s the fact that the 3D printers needed to make these so-called “ghost guns” can cost thousands or hundreds of thousands of dollars. And the quality of the plastic matters, as well. So while the courts are working out the kinks in their legal software (so to speak), this specific milestone might not change the facts on the ground very much. But the internet is just going to get more complex and more opaque—meaning the nature of free speech in the digital age is far from unsettled.