Category: Free Speech

Is Code Free Speech?

I recently watched a documentary on Netflix called The Secret Rules of Modern Living: Algorithms, hosted by mathematician Marcus du Sautoy, and I would recommend this user-friendly guide for anyone who, like me, has basically sucked at math their whole lives.  In one segment, du Sautoy describes how a matching algorithm pairs compatible donor sets with patients who need kidney transplants—a problem of global complexity that could never be solved without the algorithm—and one that unquestionably saves lives. Suffice to say, code is certainly running nearly every important and trivial aspect of our lives today, so the question of whether or not code itself is speech is an acutely important one.

To cut to the chase, even that introductory paragraph suggests that code is not speech because, most of the time, we refer to code’s role as a predicate—namely in context to that which code runs.  Action is generally not protected speech but is in fact the threshold moment when various forms of “expression” can become potentially tortious behaviors.  And since, most of the time, code is a set of instructions telling a machine to perform a specific set of actions, this would seem to implicate the liability of the author or user of code for the consequences of those actions.

On his blog Uncomputing, Virginia Commonwealth University professor David Golumbia tackles the question of code as speech, placing the matter appropriately at the heart of our current political paradox in which we feel simultaneously frustrated by both corporate and government enterprise, especially when a principal responsibility of the latter is to protect us from the intemperances of the former.  Broadly, the danger inherent in the proposal that code is speech is that it too easily becomes a catch-all defense for the “automated” actions of any number of corporations, thus taking the notion of corporate personhood to a level way beyond the political-finance implications of the SCOTUS decision in Citizens United.  Golumbia writes …

“The cyberlibertarian understanding of “code is speech” contributes to a profoundly conservative assault on the rights of citizens, by depriving the state of the power to regulate and legislate against the corporations that exist only at the state’s pleasure in the first place. This is why “code is speech” has been so powerfully advocated for decades among crypto-anarchists and cypherpunks. Yet at least these groups are, for the most part, explicit about their desire to shrink governmental power and expand the power of capital. Today the view that “code is speech” is far more widespread, but it is no less noxious, than the explicit crypto-anarchist doctrine.” 

Golumbia makes it clear that he recognizes that code can have speech-like qualities and that it can, and should, be considered speech by courts when appropriate.  But he argues that the general proposition that code is fundamentally speech is “more wrong than right,” because code is more action than expression.  Where this question might get tricky for many people is with a case like Apple v FBI, in which a lot of the reportage (and Apple’s own PR) portrayed the story as one in which the corporation is protecting user privacy from government overreach.  Certainly, the privacy issue is part of the story; but as Golumbia points out, Apple presented a code-is-free-speech argument in its motion to vacate a court order this past Februrary. He explains why Apple’s position in this case was on shaky legal ground and further proposes why Apple’s argument is not only weak, but also particularly toxic to civil liberties.

Golumbia refutes Apple’s position in four parts, arguing that 1) The “code is speech” premise is not settled law as Apple asserted; 2) that even if code were speech as a settled matter, it is not true that the government can never pass laws restricting certain types of speech; 3) that code’s primary purpose is action while the First Amendment protects expression; and 4) Apple’s argument in this case is “enirely novel” with regard to its rejecting the right of the government to “compell speech” by way of ordering the company to write a code to provide access Sayed Farook’s iPhone. This last point is the part that can get clouded for some by the underlying privacy issue; but Golumbia is right, I believe, to sharply criticize the First Amendment defense posed by Apple.

Americans, especially those dismayed by Citizens United, will want to seriously consider what Golumbia is saying in this case.  Apple’s “compelled speech” defense asserts that the corporation not only has exactly the same free speech rights as the individual citizen; but in a code-driven world, the corporation may be shielded against any liability stemming from any number of actions. As Golumbia makes clear, the government historically compels corporations to “speak” all the time and also restricts corporate speech in a variety of ways that serve the public interest. A citizen is free to tell his friends on Facebook, “This soda cured my cold,” if he really wants to; but if Coke makes the same claim, they’re pretty screwed. And for good reason.

Of course, Apple’s argument remains hypothetical since the FBI did its own cracking, and the dispute between the computer-maker and the agency will no longer proceed through the courts.  But Golumbia is absolutely right when he writes, “The effect of embracing ‘code is speech’ is to say that governments cannot regulate what corporations do. That might seem like hyperbole, but it is 100% on board with the Silicon Valley view of the world, the overt anarcho-capitalism that many of its leaders embrace, and the covert cyberlibertarianism that so many more accept without fully understanding its consequences.”

With each step into the 21st century, more aspects of our lives become unavoidably dependent upon, or associated with, some form of code.  This underlying reality is the reason we should be critical of the view that organizations like the EFF promote when they perceive a million daily micro-aggressions against “speech” in cyberspace.  The idea that every transaction online is inherently speech—because code itself is speech—is most galling when it pretends to be a defense of individual civil liberties.  Because in practice, it is an argument that—to paraphrase Jaron Lanier—cannot help but cede political and economic power to the companies with the biggest computers.  As this would completely subvert the reason why freedom of speech is articulated in the First Amendment to begin with, it is a legal question of considerable magnitude.

ADDENDUM:  It is also worth noting that there is an extent to which words like code and algorithm become a means of separating the functions of computers from the decisions of human beings.  This rhetoric is often invoked when, for instance, OSPs seek to avoid responsibility for various actions resulting from their technologies.  Of course, if code is not an expression of human choice, then it is certainly not speech; but because it is an expression of human choice that usually has consequences in the physical world, then it is speech that implicates reasonable limits. (Thanks to a colleague for raising this point.)

Google v Hood Not Even a B-Movie Drama

For someone who clearly doesn’t like Hollywood, Emily Hong, policy wonk for New America’s Open Technology Institute*, is determined to pitch an over-the-top narrative about AG Hood v Google that is so divorced from reality that I don’t think Luis Buñel would know what to make of it.  Reposted on Slate, her title and basic plot, which portrays Google as underdog — fighting not only for itself but for the sanctity of the Internet — against the juggernaut of the MPAA in cahoots with states attorneys general, begs the audience to suspend not only disbelief, but the verifiable evidence that Google’s reach into government is greater by orders of magnitude than several other whole industries.  So much so, that when faced with indictment in 2011 by the DOJ for its role in illegal pharmaceutical trafficking, the corporate executives of Google were able to buy themselves a non-prosecutorial settlement for the meager sum of a half billion dollars.  Thus, the focus of AG Hood’s recent investigation had been to confirm whether or not Google was in compliance with that settlement — i.e. that the company was not still knowingly profiting from illegal trade.

That the MPAA would have an interest in this investigation is no surprise, even though copyright infringement was among the least of AG Hood’s concerns.  Still, ever since the release of emails leaked during the Sony hack, Google and its translucent PR network have attempted to spin the intent of Hood’s investigation — which 39 other AGs have now joined — into a conspiracy story in which the MPAA was effectively calling the shots and using the AG as a puppet to pursue the studios’ interests.  Meanwhile, it should be noted that Google does not deny that the company plays a role in mass infringement (and even monetizes it), but that any measures it might take to mitigate the problem would unavoidably lead to a “less open” Internet.  And so, like any good/bad movie plot of this nature, why do the conspiratorial MPAA want AG Hood to pursue Google?  To take over the world, of course.  Only in this case, it’s more like take over the Internet in order to censor it.  Thus, in an homage to B-movie villains everywhere, Hong writes:

“Beyond its melodrama, Google v. Hood also embodies a deeper ideological clash that persists between those who believe that Internet content must now be technologically and legally controlled and those who argue that it remain as open as possible in the service of free expression. Organizations like the MPAA and its analogue in the music industry, the Recording Industry Association of America, advocate for strict control, while technology companies (many of whom are the online intermediaries who would likely bear the costs of any control regime) and civil liberties activists want to preserve an unhindered atmosphere.”

Believe what you want about the players, their actions, and their motives.  The details and  misrepresentations are so out of proportion now, it’s futile to even go there.  For the sake of argument, then, let’s assume companies are companies, all morally or amorally equal, if you will.  Yes, the motion picture industry would like to curb piracy; and yes, Google would like to avoid taking responsibility (financial or otherwise) for its role in the problem.  That’s business.  We get that.  But the idea that the story of Hood v Google is an epic tale of good vs evil — about the forces of openness vs the forces of censorship — is preposterous.

When Google ponied up its half-billion-dollar settlement and, in theory, stopped advertising against illegal drug trafficking, did you feel a chill in your right of free speech?  Or when millions of Americans applauded Reddit for its recent ban of the racist subreddit CoonTown, did you sense so much as a cool breeze warning you not to speak your mind on Facebook or Twitter, or to search for some news item somewhere on the Web?  And while an “open Internet” sounds like a good thing, it should not be taken as gospel that whatever puts an onus on Google will “close” the Internet.  To the contrary, we have seen in recent months both litigation and policy decisions in the U.S. and abroad, which demonstrate that Google and others can be forced to mitigate harm or conform to anti-trust regulations without affecting our rights in the slightest.  In fact, for the moment, I feel entirely free to say that I believe this narrative Google and writers like Emily Hong keep spinning is complete bullshit.  And I have to wonder if that freedom is honestly best served by just letting Google do whatever it wants with complete immunity.

*As stated in the article this organization includes Google executive chairman Eric Schmidt on its board.

Free Speech III – Are Today’s Liberals Killing It?

Because there are laws against certain expressions of neo-Nazism in Germany, and because my history-buff son and I are slightly amused by the satire inherent in that otherwise understandable fact, we will jokingly conjure the image of some official kicking a would-be fascist and screaming, “You vill be tolerant!”  But if you really like your irony served thick and over-salted, consider the likelihood that if I made that same joke on an American college campus today, not only might it be utterly misunderstood, but it might get me into actual trouble — especially with anyone unfamiliar with the satire of Mel Brooks.  In fact, in a recent reply to my last post about free speech, the respondent suggested that I have made comments on this blog that would get me fired from American colleges today; and he or she is probably right. Because if this article by Kristen Powers for The Daily Beast is an accurate portrayal of today’s “liberal” college students, they really don’t get free speech at all.

In the context of this blog, I keep insisting that the Internet is not the greatest tool for free speech ever invented. But I should clarify.  The more accurate thing to say is that it doesn’t actually matter if the Internet is the greatest tool for free speech ever invented, if in fact a whole generation of American university students don’t understand free speech in the first place — why we have it, and the often painful experiences through which it has been preserved. “… the politically correct university is a world of land mines, where faculty and students have no idea what innocuous comment might be seen as an offense,” writes Powers.  She also cites an article from Atlantic in which attorney and free speech advocate Wendy Kaminer states, “The belief that free speech rights don’t include the right to speak offensively is now firmly entrenched on campuses and enforced by repressive speech or harassment codes. “

I don’t know if Powers is cherry-picking exceptions and making them sound like rules. She may be pointing to a phenomenon rather than a trend. The article references her book The Silencing:  How the Left is Killing Free Speech, and she identifies as a liberal, so I assume this is not just some Bill O’Reilly-style attack on liberals in general. Additionally, what she says does jibe with anecdotal evidence I hear through acquaintances and that I have read in some online commentary by contemporary college students. And if this is truly what is happening to the liberal tradition of socratic disciplines in higher education, then it is impossible not to sneer every time the heralds of Silicon Valley declare that freedom of speech is the motive behind whatever policy they seek to enact or destroy. I don’t want to suggest that these voices don’t ever mean what they say, or at least think they mean it, but rather how empty their gestures are in contrast to the censoring trends that their wonderful tools of speech have helped create.  After all, Powers’s description of the self-righteous mob shutting down ideas based solely on some hair-trigger offense at the speaker’s choice of words sounds a hell of a lot like life imitating social media to me.

So, let Google & Co. abuse the concept of “chilling” free speech by chucking every artist’s takedown request into the “Chilling Effects” database and tell the kids they’re standing up for the First Amendment.  Whatever.  If Powers’s article is a fair reflection, the kids don’t understand free speech anyway. It’s a lost cause. The irony, of course, is that what preserves both the right of speech and the intellectual rigor to use speech is the conscious choice to be Jacob and wrestle with the damned Angel, to welcome the confrontation and turn it into something new rather than to silence it or pretend it isn’t there. And isn’t it funny that this is exactly what artists do?  We’re just barely victorious over conservatives banning creative works or investigating artists for “obscenity” or some other offense to our half-Puritan nature. Are self-proclaimed liberals now going to write their own black lists and host their own Bradburyian bonfires?

Maybe not.  But Powers does quote comedian Chris Rock who says that playing colleges isn’t fun anymore because people are so easily offended.  And this is truly a sign of the intellectual apocalypse:  when we no longer have the mental fortitude or cultural literacy to be able to laugh at our own folly, to satirize our worst selves, we breed fanatics who would smother genius in a ball of coexist bumper stickers.  I have no idea what the ultimate solutions are to the new rise in racial tensions in this country, but understanding why Chris Rock is funny would probably be a step in the right direction.  It’s sad to think about the fact that Lenny Bruce was arrested for obscenity in the 1960s, that Richard Pryor had racially mixed audiences pissing their pants together by the 1970s, but that a legacy of those two comedians can’t get a smile out of college kids in 2015. I’m not sure that’s progress toward any kind tolerance at all.