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.)
© 2016, David Newhoff. All rights reserved.