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Comment by rkevingibson | Hacker News Reader

"Defendants appear to insist that the higher the utility value of speech the less like speech it is. An extension of that argument assumes that once language allows one to actually do something, like play music or make lasagne, the language is no longer speech. The logic of this proposition is dubious at best."

I love this - definitely not a side to the argument that I'd considered before, but I find it very compelling. Well written article all around.

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"Speech" is not about the medium, it's about whether something is being communicated. Courts have long recognized that functional things can be speech. Clothes are functional, but fashion can be speech if the point of wearing it is to communicate an idea to other people. Of course, fashion (and code), can be not speech too. Code in the context of instructing a computer to perform encryption is not speech. But publishing that code to communicate to other people how to peform encryption is surely speech.

Agreed, the test is instructing vs. making instructions available.

IANAL, but I think that argument about code-as-not-speech breaks down when you consider that this is code that, because of the digital signatures it includes, is intrinsically tied to Apple, and can be used to break any Apple phone. Perhaps a good analogy there would be that the FBI is asking Apple to write a speech that they disagree with, and then sign that speech, and then allow the FBI access to that speech, and the FBI is saying "don't worry, no one will see it, just us". And Apple is, quite rightly, saying "like hell, you can't even secure your personnel records - that speech is harmful to us and we will not be compelled to write it and sign it."

I think the argument that signing is an expressive act and thus protected is much stronger than the idea that the code for disabling the checks is speech and thus protected.

Just for the record, the FBI isn't saying "don't worry, no one will see it, just us." as they aren't requesting a copy of the signed code. They're just requesting that Apple use it to unlock the device.

So the FBI's ability to secure the code isn't currently relevant.

Considered in isolation, it isn't relevant. But the basis of this decision will serve as a precedent to get Apple to unlock a multitude of phones. And that's not Apple's business. Apple, or any other company, is not a branch of law enforcement, and cannot be conscripted to perform law enforcement's functions.

That's simply not true. Businesses of all stripes are conscripted all the time to gather data and turn it over to law enforcement. The government has very wide latitude in this area.

Gather data, which Apple already does and provides. Not write wholesale operating systems, sign them, and maintain them for only the government to use.

You make it sound like Apple is being asked to put a man on the moon. They're being asked to comment out a few lines of code and recompile. Apple's objections have nothing to do with the volume or difficulty of work.

It sounds like you aren't very familiar with the actual ask; that's not at all what they are tasked with doing.

The FBI wants them to create an operating system that would run entirely from RAM without touching any of the flash memory on the device.

That can easily be made to look ridiculous: Does it become speech again after I disassemble it to find out how it works? At what point wasn't it speech?

It's not speech if you're not communicating an idea with it. You build a sculpture out of bricks it's speech. You take it apart and build an outhouse, it's not speech. It's not the substance of the thing that makes it speech or not. It's whether a human is using it to communicate ideas with other humans.

Not trying to be pedantic, but doesn't an outhouse communicate messages? For instance "there's probably human waste here.", "Poop inside this rather than next to it" etc.

If you take a sculpture apart then it no longer conveys the same information.

The code cryptographers use to communicate ideas is the same code the computer can execute. Are you contending that the same information is speech sometimes but not other times? What if the thing you're going to do with the information hasn't even been decided yet at the time of dissemination?

All of the points in this thread which indicate a distinction between what is and is not speech are all based on the legal precedents up until this point. The US legal system finds precedents valuable, but there's always an opportunity to find some new distinction or test.

SCOTUS can make special distinction for encryption because implementations in practice are both a tool with independent utility and communicate an idea.

AnthonyMouse has already clarified: It's the same information. My question, to which you are not responsive was: At what point does the same information magically become not speech? You are relying on perception, not on reality. It's always the same information. But it's easier to perceive it being a cog or lever inside a computer. But we all know that code is code. Compiled, decompiled, encrypted, compressed, translated, etc. It's all code all the time, and it's all speech all the time. You are bordering on some kind of Deepak Chopra-esque quantum mysticism that says humans must perceive speech in order for it to be speech.

> You are bordering on some kind of Deepak Chopra-esque quantum mysticism that says humans must perceive speech in order for it to be speech.

Speech is a thing humans do, not a characteristic of bits or bricks or black armbands. The First Amendment doesn't protect particular types of things. It protects communications between humans. If one human isn't using a thing to communicate to other humans, it's not speech.

> If one human isn't using a thing to communicate to other humans, it's not speech.

Imagine a coder refusing an order from the FBI to create a tool. She is refusing to translate her thoughts into code. What is that other than refusing an attempt to compel speech?

There is only one human in this picture. But the code an FBI order is attempting to extract from her brain is still speech.

Putting your hands above your head can be speech:

http://c.fastcompany.net/multisite_files/fastcompany/imageca...

But law enforcement can still tell you to "Stop and put your hands above your head!"

The former is the communication of an idea. The latter is just a physical movement. Even though it's the exact same action.

So, under an All Writs order to produce a tool for the FBI, code becomes something like a "physical movement?"

Have you got an answer to what compelled coding is, other than compelled speech?

Commenting out some security code and recompiling isn't the communication of an idea. It's just the rote performance of a task.

Like raising your hands above your head when the cop tells you to.

> She is refusing to translate her thoughts into code.

You seem to be mixing up the standard for the fifth amendment and the first amendment. The fifth amendment says that the government can't compel you to testify against yourself, and that a physical action (like punching in a key code) can be testimonial if it involves accessing one's thoughts. The fifth amendment doesn't apply here because Apple is under no threat self-incrimination.

And "accessing your thoughts" is not the test under the first amendment. The test is whether the speaker is expressing an idea. Instructing a computer to do something is not expression, it's not communication with another human. It's a human acting on an inanimate object. The fact that the action involves accessing one's thoughts is irrelevant. E.g. the government can definitely compel a bank employee to punch in a key code to unlock a vault, even though that involves translating thoughts of the combination into a sequence of key presses.

NB: it's kind of interesting to be splitting hairs over what is and is not speech here. A court can compel you to come in and testify against someone, which is undoubtedly speech. Yet the power to compel testimony is one of the fundamental powers of a court, and has never been understood to be a violation of the first amendment.

You can be compelled to recite facts you may know, when there is some evidence that you know them. Not infrequently, witnesses claim not to have known, not to have a reliable account, or not being able to recall those facts.

This is substantially different from compelling coders to discover how to break their own secure implementation and implement a deliberately broken implementation. This is compelling a creative work, and a particularly perverse one.

"code in the context of instructing a computer to perform encryption is not speech." the decision cited from 1999 by the appellate court specifically considered this and found the opposite. As long as your phrase "Code in the context of instructing..." means source code, then they disagreed wholeheartedly with you. They found that people in the encryption field universally used source code to convey ideas and to communicate. They argued that utility of something doesn't revoke it as speech, as the parent to your comment noted. They did not take into consideration CD's with object compiled code on them nor easily scannable papers, which they note are a dubious prospect to begin with--being limited by the same export restrictions.

What the appellate court held was that just because source code may be used to instruct a computer does not mean that it's not speech when used "to convey ideas and to communicate." That does not mean that source code is speech when used to instruct a computer. It means that source code isn't not speech just because sometimes you use it to instruct a computer. Logically, those are two very different statements.

The court wasn't saying that the government can't regulate what you can and cannot program a computer to do. It was saying that the government cannot restrict sharing of source code between people, which is often used to communicate ideas.

What's dubious about it? It's saying that "no, you can't just reframe an act to focus on the speech (communicative aspect) and automatically inherit free speech protections".

Example: "What? What's the problem? All I did was the send the signal 100100111011110[...] to my computer. I have the right to say '1', don't I? I have the right to say '0', yeah? So I must have the right to say '100100111011110[...]'. The fact that this triggered a destruction of the evidence on my hard drive is totally irrelevant, because we established I have the right to say '100100...', don't infringe on that, man."

Ah, but the point of free speech is not that you are shielded from the consequences of the action of your speech.

In your example, giving instructions that destroys evidence can certainly make you guilty of obstruction of justice or some other similar crime. But the point is, the government cannot either compel you to give those instructions, or compel you to not give them. They don't have the right to do that - at least not until they've convicted you of a crime that allows them to restrict your rights. If you're a free citizen, you can give whatever instructions to your computer you damn well please - and then face the consequences, which may be to make you a criminal.

What the government ends up arguing in the Apple case, is they want to make you work to figure out what a "10101..." is that will break your own products and make you say it (to the right phone... and then the next phone, and the next). This, they want to do, even though you have not committed any crime. That is the issue at stake.

As a free, lawful person you have the right to decide for yourself whether you're going to say something that you disagree with ethically and commercially. The FBI wants to take away your right to make that decision. They want, without even having legislated on the topic, to force you to say what they want you to say "because terrorists".

the court decision cited only took up source code, and not compiled object code, precisely because source code is meant to be read by humans. Also, the right to normal "spoken" speech can be abrogated when it is a call to immediate action, and it may not be a stretch that issuing a command to destroy evidence--a crime-- would be an unprotected communication towards immediate action.

With regard to publishing the encryption algorithm, the court found that he wasn't "refram[ing] an act to focus on speech" as you say but was engaging in the standard way that cryptologists communicate ideas: source code.

Agreed. Best distillation of the free speech argument I've seen so far for this case.

It's actually especially interesting considering that speech lacking any utility can be defined as obscene and not protected.

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