
Apple’s “Code = Speech” Mistake - gvb
https://www.technologyreview.com/s/600916/apples-code-speech-mistake/
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romeovs
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).

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studentrob
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](https://www.library.gatech.edu/security/virus.htm)

