Apple’s “Code = Speech” Mistake

It is to my understanding that Apple and its lawyers aren't claiming that the code they create is "speech".

They are claiming that forcing Apple to digitally sign the codebase (which would be necessary to make it installable on the iPhone) would be a violation of freedom of speech.

I think this is a much more reasonable claim (but I'm not a law professor, so don't look at me).

The author argues that some code should be protected by the first amendment whereas other code should not.

He argues that computer viruses should not be protected. His thesis is, "if we were to accept the fantasy that Code = Speech, we would be putting our ability to regulate our fast-changing digital society in peril". I could not disagree more.

The author is correct to point out there are limits to free speech. You can't yell fire in a crowded theater unless you really believe there is a fire. But the author is incorrect in drawing the conclusion that writing viruses should always be punishable.

Just like we should be allowed to run fire drills in our own homes, so too should security researchers be allowed to attempt breaking into their own computer systems without fear of being jailed. The Computer Fraud and Abuse Act already covers malicious actors and targets those who knowingly transmit malicious code [1].

The author suggests that since money being declared speech has turned out to be troublesome, saying code equals free speech would also cause problems. This is misleading. There is a big difference between money and code, and many similarities between code and text or speech. People cannot generate money as freely or easily as they can generate text, speech, or code. Money is in limited supply, whereas speech / text / code are unlimited.

The author's paragraph about the "narrow way in which the order sought by the FBI could be seen as a violation of the First Amendment" is exactly the manner in which Apple is describing a violation of their rights through digitally signing the codebase. Yet, the author presents it as if it is his own insight and claims Apple is not clear enough in its brief. Perhaps Apple could be more descriptive, though I disagree that it is a "narrow" argument.

The fact is, existing law already regulates malicious actions when dangerous code is distributed, so the author's concern about viruses is easily dispelled. The first amendment isn't a protection you apply for certain speech but not others. The act of speaking is only regulated where it can objectively cause harm, such as yelling fire in a theater or maliciously distributing a virus, and that is the only regulation needed.

[1] https://www.library.gatech.edu/security/virus.htm