- 960415.decision (1/1) US Federal Court Rules Crypto is "Speech"
Charlie Mingo
[NOTE: This file has some scanographical errors in it, but should be 99%
legible.]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DANIEL J. BERNSTEIN, | No. C-95-0582 MHP
|
Plaintiff, | OPINION
|
vs. |
|
UNITED STATES DEPARTMENT OF STATE |
et al., |
Defendants. |
____________________________________|
Plaintiff Daniel Bernstein brought this action against the Department of
State and the individually named defendants seeking declaratory and
injunctive relief from their enforcement of the Arms Export Control Act
("AECA"), 22 U.S.C. ¤ 2778, and the International Traffic in Arms
Regulations ("ITAR"), 22 C.F.R. Sections 120-30 (1994), on the grounds that
they are unconstitutional on their face and as applied to plaintiff. Now
before this court is defendants' motion to dismiss for lack of
justiciability.1
Having considered the parties' arguments and submissions, and for the
reason set forth below, the court enters the following memorandum and
order.
BACKGROUND 2
At the time this action was filed, plaintiff was a PhD candidate in
mathematics at University of California at Berkeley working in the field
of cryptography, an area of applied mathematics that seeks to develop
confidentiality in electronic communication.
A. Cryptography
Encryption basically involves running a readable message known as
"plaintext" through a computer program that translates the message
according to an equation or algorithm into unreadable "ciphertext."
Decryption is the translation back to plaintext when the message is
received by someone with an appropriate "key." The message is both
encrypted and decrypted by common keys. The uses of cryptography are
far-ranging in an electronic age, from protecting personal messages over
the Internet and transactions on bank ATMs to ensuring the of military
intelligence.
As a graduate student, Bernstein developed an encryption algorithm he
calls "Snuffle." He describes Snuffle as a zerodelay private-key
encryption system. Complaint Exh. A. Bernstein has articulated his
mathematical ideas in two ways: in an academic paper in English entitled
"The Snuffle Encryption System," and in "source code" written in "C", a
high-level computer programming language,3 detailing both the encryption
and decryption, which he calls "Snuffle.c" and
"Unsnuffle.c", respectively. Once source code is converted into "object
code," a binary system consisting of a series of 0s and 1s read by a
computer, the computer is capable of encrypting and decrypting data. 4
B. Statutory and Regulatory Background
The Arms Export Control Act authorizes the President to control the
import and export of defense articles and defense services by
designating such items to the United States Munitions List ("USML"). 22
U.S.C. ¤ 2778(a)(1). Once on the USML, and unless otherwise exempted, a
defense article or service requires a license before it can be imported
or exported. 22 U.S.C. ¤ 2778(b)(2).
The International Traffic in Arms Regulations, 22 C.F.R. Sections 120-30, were
promulgated by the Secretary of State, who was authorized by executive
order to implement the AECA. The ITAR is administered primarily within
the Department of State by the Director of the Office of Defense Trade
Controls ("ODTC"), Bureau of Politico-Military Affairs. The ITAR allows
for a "commodity jurisdiction procedure" by which the ODTC determines if
an article or service is covered by the USML when doubt exists about an
item. 22 C.F.R. ¤ 120.4(a).
Categories of items covered by the USNL are enumerated at section 121.1.
Category XIII, Auxiliary Military Equipment, includes "Cryptographic
(including key management) systems, equipment, assemblies, modules,
integrated circuits, components
or software with the capability of maintaining secrecy or
confidentiality of information or information systems .... __ _
¤ 121 XIII(b)(l). A number of applications of cryptography are excluded,
such as those used in automated teller machines and certain mass market
software products that use encryption. Id.
C. Plaintiff's Commodity Jurisdiction Determinations On June 30, 1992
Bernstein submitted a commodity jurisdiction ("CJ") request to the State
Department to determine whether three items were controlled by ITAR.
Those items were Snuffle.c and Unsnuffle.c (together referred to as
Snuffle 5.0), each submitted in C language source files, and his
academic paper describing the Snuffle system. Complaint Exh. A. On
August 20, 1992 the ODTC informed Bernstein that after consultation with
the Departments of Commerce and Defense it had determined that the
commodity Snuffle 5.0 was a defense article under Category XIII of the
ITAR and subject to licensing by the Department of State prior to
export. The ODTC identified the item as a "stand-alone cryptographic
algorithm which is not incorporated into a finished software product."
Complaint Exh. B. The ODTC further informed plaintiff that a commercial
software product incorporating Snuffle 5.0 may not be subject to State
Department control and should be submitted as a new commodity
jurisdiction request.
Plaintiff and ODTC exchanged copious and contentious correspondence
regarding the licensing requirements during the spring of 1993. Still
unsure if his academic paper had been included in the ODTC CJ
determination of August 20, 1992, Bernstein submitted a second CJ
request on July 15, 1993, asking for a separate determination for each
of five items. According to plaintiff these items were 1) the paper,
"The Snuffle Encryption System," 2) Snuffle.c, 3) Unsnuffle.c, 4) a
description in English of how to use Snuffle, and 5) instructions in
English for programming a computer to use Snuffle.5 On October 5, 1993
the ODTC notified Bernstein that all of the referenced items were
defense articles under Category XIII(b)(1). Complaint Exh. E; Defendant
Exh. 18. After plaintiff initiated this action, the ODTC wrote to
plaintiff to clarify that the CJ determinations pertained only to
Snuffle.c and Unsnuffle.c and not to the three items of explanatory
information, including the paper. Defendant Exh. 21. Bernstein appealed
the first commodity jurisdiction determination on September 22, 1993.
That appeal is still pending.
Plaintiff seeks to publish and communicate his ideas on cryptography.
Because "export" under the ITAR includes "[d]isclosing . . . technical
data to a foreign person, whether in the United States or abroad",
Bernstein asserts that he is not free to teach the Snuffle algorithm, to
disclose it at
academic conferences, or to publish it in journals or online discussion
groups without a license.
LEGAL STANDARD
A motion to dismiss will be denied unless it appears that the plaintiff
can prove no set of facts which would entitle him or her to relief.
Conlev v. Gibson, 355 U.S. 41, 45-46 (1957); Fidelity Financial Corp. v.
Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir.
1986), cert. denied, 479 U.S. 1064 (1987). All material allegations in
the complaint will be taken as true and construed in the light most
favorable to the plaintiff. NL Industries. Inc. v. Kaplan, 792 F.2d 896,
898 (9th Cir. 1986). Although the court is generally confined to
consideration of the allegations in the pleadings, when the complaint is
accompanied by attached documents, such documents are deemed part of the
complaint and may be considered in evaluating the merits of a Rule
12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th
Cir.), cert. denied sub. nom. Wyomina Community Dev. Auth. v. Durning,
484 U.S. 944 (1987).
DISCUSSION
Plaintiff makes a number of allegations of unconstitutionality with
respect to the AECA and ITAR. Specifically, plaintiff alleges that the
act and accompanying regulations, both facially and as applied, are a
content-based
infringement on speech, act as an unconstitutional prior restraint on
speech, are vague and overbroad, and infringe the rights of association
and equal protection. Bernstein also alleges that the CJ request and
registration processes as well as the licensing procedures are
unconstitutional, although he does not state the basis of their
unconstitutionality. Finally, plaintiff alleges that the actions of
defendants are arbitrary and capricious and constitute an abuse of
discretion under the Administrative Procedure Act, 5 U.S.C. Sections 701 et ~g
Defendants move to dismiss on the grounds that these issues are
nonjusticiable.
I. Justiciability The AECA plainly states:
The designation by the President (or by an official to whom the
President's functions under subsection (a) of this section have been
duly delegated), in regulations issued under this section, of items as
defense articles or defense services for purposes of this section shall
not be subject to judicial review. 22 U.S.C. ¤ 2778(h). Defendants
conclude that this language, as well as the Constitution, precludes
review of commodity jurisdiction determinations by this court. Plaintiff
does not dispute this assessment. Defendants characterize this action as
an attempt to obtain judicial review of their CJ determinations to place
plaintiff's cryptographic items on the USML; as such, they maintain the
action is precluded. However, this characterization does not comport
with either the complaint
itself or plaintiff's repeated assertions that he is not seeking
judicial review of defendants' CJ decision, but of the constitutionality
of the statute and its regulations.
It is well established under the political question doctrine that courts
do not have the expertise to examine sensitive political questions
reserved for the other branches of government. See Baker v. Carr, 369
U.S. 186 (1962). More to the point, as defendants note, the
determination of whether an item should be on the USML "possesses nearly
every trait that the Supreme Court has enumerated traditionally renders
a question 'political."' United States v. Martinez, 904 F.2d 601, 602
(llth Cir. 1990) (finding the CJ determination nonjusticiable without
deciding if the then recent amendment to the AECA precluding judicial
review applied to that case). However, a review of a particular CJ
decision is a distinctly different question from a constitutional
challenge to a statute. In Martinez, the Eleventh Circuit noted that
defendants had not alleged a constitutional violation.6 904 F.2d at 603.
With respect to constitutional questions, the judicial branch not only
possesses the requisite expertise to adjudicate these issues, it is also
the best and final interpreter of them. Furthermore, as plaintiff points
out, federal courts have consistently addressed constitutional issues in
the context of national security concerns. See. e.q., New York Times Co.
v. United States, 403 U.S. 713 (1971); Haia v. Aaee,
453 U.S. 280 (1981). Because the issues before this court do not
necessitate a factual inquiry into the CJ determination, but a legal one
into broader constitutional claims, the question is whether the
statutory preclusion of judicial review of CJ decisions also embraces
this court's review of the statute's constitutionality. 7
Defendants cite a number of Ninth Circuit cases that reject the
reviewability of commodity designations under the analogous Export
Administration Act, 50 U.S.C. App. Sections 2401 et seq., administered by the
Commerce Department. Because this court is not reviewing the CJ
determination itself, those cases miss the mark. Of those cases,
however, United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992), cert.
denied, 507 U.S. 917 (1993), is instructive.
In Bozarov the defendant was charged with exporting items on the
Commerce Control List ("CCL")--which is akin to the USML--without a
license in violation of the statute. The items, which were computer disk
manufacturing equipment, had been listed on the CCL for national
security reasons. Bozarov challenged the constitutionality of the Act's
preclusion of judicial review. In upholding the preclusion of review,
however, the court noted its decision was "bolstered by the fact that
certain limited types of judicial review are available under the EAA
despite the Act's seemingly absolute preclusion of review. First,
colorable constitutional claims may be reviewed by the courts even when
a statute otherwise
precludes judicial review." Id. at 1044 (citing Webster v. Doe, 486 U.S.
592, 602-05 (1988)). In fact, in order to reach the question of whether
it was constitutional to preclude judicial review, the Ninth Circuit had
to first find the issue justiciable. There, even the government conceded
that Bozarov's nondelegation challenge amounted to a colorable
constitutional claim. 974 F.2d at 1044 n.7. More definitive still is the
Supreme Court's decision in Webster_, where it addressed whether
employment decisions by the Director of the CIA were subject to judicial
review. In Webster, plaintiff Doe was discharged from the CIA after
informing the agency that he was a homosexual. He contested his
termination partly on constitutional grounds. The Court held that the
applicable statute bestowed so much discretion on the CIA Director in
terminating employees that judicial review of those decisions was
precluded under section 701(a)(2) of the APA. However, the Court made
clear that such a holding did not preclude review of constitutional
claims, noting that where Congress intends to preclude judicial review
of constitutional claims its intent to do so must be clear.... We
require this heightened showing in part to avoid the "serious
constitutional question" that would arise if a federal statute were
construed to deny any judicial forum for a colorable constitutional
claim. 486 U.S. at 603 (citations omitted). 8 In the instant case,
Congress has clearly precluded review of CJ determinations under the
AECA, 22 U.S.C. ¤ 2778(h). But it has just as clearly tailored the
preclusion of review to the designation by the President or his delegate
"of items as
I defense articles or defense services for the purposes of this
section." Id. Moreover, the language of section (h) indicates that it
pertains only to delegations of the President's "functions under
subsection (a) of this section." Those functions do not include
constitutional determinations.
As this court finds that the AECA does not preclude judicial review of
colorable constitutional claims, it must determine if plaintiff's claims
are colorable in order to decide the issue of justiciability.
II. Colorability of Plaintiff's Constitutional Claims
Defendants maintain that plaintiff has raised no colorable
constitutional claim because this case does not concern "speech"
protected by the First Amendment, and even if it does, the minimal
infringement is excusable under O'Brien v. United
U.S. 367 (1968). Defendant's further argue that plaintiff has not made a
colorable claim that the CJ determinations constitute a prior restraint
or that the AECA and ITAR are overbroad or vague.9 Plaintiff responds
that the items that were subject to CJ determinations are speech of the
most protected kind.
A. Analytical Framework
To determine if Bernstein states a "colorable constitutional claim," it
is helpful to know what standard obtains. Colorability, a concept often
employed by courts, is
rarely defined. Not surprisingly, discussions of colorability appear to
be highly specific to both the claim and context in which they arise.
The Ninth Circuit has adopted the proposition that a constitutional
claim is not colorable if it is clearly immaterial and made only for the
purposes of jurisdiction, or "is wholly insubstantial or frivolous."
Hoye v. Sullivan, 985 F.2d 990, 991-92 (9th Cir. 1993) (citing Boettcher
v. Secretary of HHS, 759 F.2d 719, 722 (9th Cir. 1985)).
On a number of occasions the Ninth Circuit has addressed whether
constitutional claims were colorable in the context of national security
decisions. These have been largely due process and equal protection
challenges to revocations of a security clearance. Dorfmont v. Brown,
913 F.2d 1399 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991); High
Tech Gays v. Defense Ind. Sec. Clearance Off., 895 F.2d 563 (9th Cir.),
reh'a denied, en banc, 909 F.2d 375 (1990); Dubbs v. CIA, 866 F.2d 1114
(9th Cir. 1989).
In Dorfmont the court held that there was no cognizable liberty or
property interest in a security clearance that could give rise to a due
process claim and therefore the claim was not colorable. The Dorfmont
court noted, however, that it had found equal protection challenges to
security clearance denials colorable in Hiah Tech Gays. 913 F.2d at
1403. In fact, in Hiah Tech Gays the court bypassed the issue of
colorability altogether and concluded on the merits that homosexuals
were
not a suspect or quasi-suspect class for purposes of heightened equal
protection scrutiny.10 Plaintiffs in High Tech Gays had also brought a
First Amendment claim based on freedom of association. The court found
that plaintiffs had failed to allege or show a security clearance had
been denied solely by reason of their membership in a gay organization
and, therefore, there was no case or controversy with respect to that
claim. In Dorfmont the court described its disposition of the First
Amendment claim in Hiah Tech Gays as failure "to allege sufficient facts
to raise a justiciable First Amendment claim." 913 F.2d at 1403 n.2. It
is unclear whether the court's discussion of justiciability in Dorfmont
applies to lack of colorabilty, and if so, what standard it implies. As
Hoye is the most recently and clearly articulated of the Ninth Circuit's
attempts to define colorability, its standard will govern the court's
analysis in this case.
B. Analysis
Neither party agrees on exactly which items are at issue in this case,
which confounds the analysis of whether subjecting them to a licensing
requirement raises a colorable First Amendment claim. Defendants claim
that only Snuffle.c and Unsnuffle.c are controlled by the USML and
subject to the I licensing requirement. This is based on the 1995 letter
the ODTC sent to plaintiff after he had filed suit in which it clarified
that the CJ determinations did not include any
explanatory information, including the paper. This clarification would
have been more appropriate in response to plaintiff's letter of July 15,
1993. Bernstein claims that his paper, "The Snuffle Encryption System,"
remains on the USML and that he has not been able to publish it without
a license. It seems evident from the correspondence between Bernstein
and the ODTC that the paper was indeed determined to be on the USML at
the latest by October 5, 1993, but that as of June 29, 1995, the ODTC
disavowed that decision. It is disquieting that an item defendants now
contend could not be subject to regulation was apparently categorized as
a defense article and subject to licensing for nearly two years, and was
only reclassified after plaintiff initiated this action. Nonetheless,
given defendants' reevaluation, the claims pertaining to the paper now
appear moot.12
1. Speech
The paper, an academic writing explaining plaintiff's scientific work in
the field of cryptography, is speech of the most protected kind. See
Sweezv v. New Hampshire, 354 U.S. 234, 249-50 (1957) (noting the
importance of protecting scholarship and academic inquiry). Nor do
defendants contest this. Rather, defendants contend that Snuffle.c and
Unsnuffle.c--the source code for the encryption program--are not speech
but conduct. Plaintiff argues that computer code inscribed on paper,
like any non-English language, is speech
protected by the First Amendment .13 Plaintiff further argues that even
functional software is treated as protectable expression under copyright
law. 14
Defendants urge this court to find the source code for Snuffle
unprotected conduct rather than speech. They cite Texas v. Johnson, 491
U.S. 397 (1989), for the proposition that conduct must be "'sufficiently
imbued with the elements of communication"' to fall within the
protections of the First Amendment. Id. at 404 (quoting Spence v.
Washington, 418 U.S. 405, 409 (1974)). In evaluating the communicative
aspects of burning a flag in Texas v. Johnson, the Court framed the
inquiry as whether the conduct entails an intent to convey a particular
message and the likelihood of that message being understood. Id.
According to defendants, the source code, as a functioning cryptographic
product, is not intended to convey a particular message. It cannot be
speech, they say, because its purpose is functional rather than
communicative.
However, the Court in both Johnson and Spence, the flag desecration case
upon which Johnson relies, inquired into the communicative nature of
conduct only after concluding that the act at issue was indeed conduct
and not speech. Both cases strongly imply that a court need only assess
the expressiveness of conduct in the absence of "the spoken or written
word." Johnson, 491 U.S. at 404; see Spence, 418 U.S. at 409 ("To be
sure, appellant did not choose to articulate his views through printed
or spoken words. It is therefore necessary to
determine whether his activity was sufficiently imbued with elements of
communication to fall within the scope of the First and Fourteenth
Amendments ...."). In the instant case, Bernstein's encryption system
is written, albeit in computer language rather than in English.
Furthermore, there is little about this functional writing to suggest it
is more like conduct than speech. A computer program is so unlike flag
burning and nude dancing that defendants' reliance on conduct cases is
misplaced. It would be convoluted indeed to characterize Snuffle as
conduct in order to determine how expressive it is when, at least
formally, it appears to be speech. Recently the Ninth Circuit addressed
the difference between speech and expressive conduct in assessing the
constitutionality of the English-only provision amended to Arizona's
constitution. Yniguez v. Arizonans for Official English, 69 F.3d 920,
934-36 (9th Cir. 1995) (en banc), cert. granted, 64 U.S.L.W. 3639 (U.S.
Mar. 25, 1996) (No. 95-974). Defendants in Yniguez, like defendants
here, sought to characterize one's choice of language as expressive
conduct. The court was similarly "unpersuaded by the comparison between
speaking languages other than English and burning flags." Id. at 934.
The court further concluded that language was speech by definition:
Of course, speech in any language consists of the ' expressive
conduct' of vibrating one's vocal chords, moving one's mouth and
thereby making sounds, or of putting pen to paper, or hand to
keyboard. Yet the fact 16 that such 'conduct' is shaped by
language--that is, a sophisticated and complex system of understood
meanings--is what makes it speech. Language is by definition
speech, and the regulation of any language is the regulation of
speech.
Id. at 934-35. Nor does the particular language one chooses change the
nature of language for First Amendment purposes. This court can find no
meaningful difference between computer language, particularly high-level
languages as defined above, and German or French. All participate in a
complex system of understood meanings within specific communities. Even
object code, which directly instructs the computer, operates as a
"language." When the source code is converted into the object code
"language," the object program still contains the text of the source
program. The expression of ideas, commands, objectives and other
contents of the source program are merely translated into
machine-readable code. 15
Whether source code and object code are functional is immaterial to the
analysis at this stage. Contrary to defendants' suggestion, the
functionality of a language does not make it any less like speech. The
Yniguez court noted that "the choice to use a given language may often
simply be based on a pragmatic desire to convey information to someone
so that they may understand it." Id. at 935. Thus, even if Snuffle
source code, which is easily compiled into object code for the computer
to read and easily used for encryption, is essentially functional, that
does not remove it from the realm of speech. Instructions,
do-it-yourself manuals, recipes, even technical information about
hydrogen bomb construction, see United States v. The Progressive. Inc.,
467 F. Supp. 990 (W.D. Wisc. 1979), are often purely functional; they
are also speech.
Music, for example, is speech protected under the First Amendment. See
Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). The music
inscribed in code on the roll of a player piano is no less protected for
being wholly functional. Like source code converted to object code, it
"communicates" to and directs the instrument itself, rather than the
musician, to produce the music. That does not mean it is not speech.
Like music and mathematical equations, computer language is just that,
language, and it communicates information either to a computer or to
those who can read it. 16
Defendants argue in their reply that a description of software in
English informs the intellect but source code actually allows someone to
encrypt data. 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. Its support in First
Amendment law is nonexistent.
By analogy, copyright law also supports the "expressiveness" of computer
programs. Computer software is subject to copyright protection as a
"literary work." 17 U.S.C. Sections 101, 102(a)(1); accord Johnson Controls v.
Phoenix Control Systems, 886 F.2d 1173, 1175 (9th Cir. 1989). For the
purposes of copyright, literary works "are works, other than audiovisual
works, expressed in words, numbers, or other verbal or numerical symbols
or indicia, regardless of the nature of the material objects, such as
books, periodicals, manuscripts, phonorecords, film, tapes, disks, or
cards, in which they are embodied." 17 U.S.C. Section 101.
A computer program is further defined under the copyright statute as "a
set of statements or instructions to be used directly or indirectly in a
computer in order to bring about a certain result." Id. (emphasis
added). Source code is essentially a set of instructions that is used
indirectly in a computer since it must first be translated into object
code to achieve the desired result. The statutory language, along with
the caselaw of numerous circuits, supports the conclusion that copyright
protection extends to both source code and object code. See NLFC. Inc.
v. Devcom Mid-America. Inc., 45 F.3d 231, 234-35 (7th Cir.), cert.
denied, 115 S.Ct. 2249 (1995) ("Both the source and object codes to
computer software are also individually subject to copyright
protection.") (citations omitted); Johnson Controls, 886 F.2d at 1175
("Source code and object code, the literal components of a program, are
consistently held protected by a copyright on the program.") (citations
omitted); Apple Computer. Inc. v. Franklin Computer Corp., 714 F.2d
1240, 1249 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984).
Copyright protection, designed to protect original expression, 17 U.S.C.
Section 102(a), supports the likeness of a computer program to speech as
defined by First Amendment law. The expression of an idea, a~ opposed to
the idea itself, which is not afforded copyright protection under 17
U.S.C. Section 102(b), connotes the "speaking" of an idea. An encryption
program expressed in source code communicates to other programmers and
ultimately to the computer itself how to make the encryption algorithm
(the idea) functional. Nor, under copyright law, does sheer
functionality diminish the expressive quality of a copyrightable work.
Apple Computer. Inc., 714 F.2d at 1252 (citing Mazer v. Stein, 347 U.S.
201, 218 (1954)); cf. Lotus Dev. Corp. v. Borland Int'l. Inc., 49 F.3d
807, 815 (lst Cir. 1995), judgment aff'd, 116 S.Ct. 804 (1996) (holding
that a text describing how to operate something is subject to copyright
protection while the method of operation itself is not). While copyright
and First Amendment law are by no means coextensive, and the analogy
between the two should not be stretched too far, copyright law does lend
support to the conclusion that source code is a means of original
expression.
For the purposes of First Amendment analysis, this court finds that
source code is speech. Having concluded that all the items at issue,
including Snuffle.c and Unsnuffle.c are speech, this court must now
briefly review the claims defendants contest for colorability.
2. O'Brien
Defendants, relying on a characterization of Snuffle as conduct, argue
that even if that conduct is expressive, the relatively mild O'Brien
test should be employed. United States v. O'Brien, 391 U.S. 367 (1968),
establishes the standard for assessing when a governmental regulation of
conduct may nonetheless run afoul of the First Amendment's speech
protections. Under O'Brien a regulation of conduct that incidentally
restricts speech will be valid if 1) it is within the power of the
government, 2) it furthers an important or substantial government
interest, 3) the government interest is unrelated to the suppression of
free expression and 4) the incidental restriction on speech is no
greater than is essential to further that interest. Id. at 377.
Given that Snuffle source code is speech and not conduct, O'Brien does
not appear to provide the appropriate standard under which to evaluate
plaintiff's claims.17 However, as the parties have not had an
opportunity to brief the issue of what First Amendment standard obtains,
the court will apply O'Brien for the limited purpose of determining
colorability. Defendants make a strong case that the AECA and ITAR
satisfy the first and second prongs of O'Brien--that they are within the
government's power and further the important interest of national
security. With respect to prongs three and four, however, this court
cannot say that plaintiff~s contentions are frivolous. Both the
technical data provision of the ITAR, 22 C.F.R. Section 120.10, and Category
XIII of the USML, 22 C.F.R. Section 121.1, regulating cryptographic software
appear to relate to the "suppression of free expression" and may reach
farther than is justifiable.
Defendants also argue that the Ninth Circuit's decision in United States
v. Edler Industries Inc., 579 F.2d 516 (9th Cir. 1978), precludes a
First Amendment attack under O'Brien on the AECA and its accompanying
regulations. In Edler the court reviewed a conviction under the
predecessor of the AECA for unlicensed exportation of technical data
relating to a defense article on the USML. The technical data at issue
in Edler related to a technique of tape wrapping with applications for
missile components. After finding that "an expansive interpretation of
technical data relating to items on the Munitions List could seriously
impede scientific research and publishing and international scientific
exchange," ~ at 519, the court went on to adopt a narrowing construction
to save the statute. 18 Defendants urge that if Edler allows the
government to legitimately restrict the export of technical data
relating to a defense article, it can certainly restrict the defense
article itself. Such an argument is an extension of Edler this court is
unwilling to adopt. The validity of the of the munitions list was simply
not at issue in that case. While Edler will be instructive to an
analysis of the AECA under the First Amendment, it is sufficiently
distinguishable on its facts that it cannot preclude plaintiff's
challenge at this stage.
While the court makes no judgment on the merits, it finds plaintiff
alleges facts sufficient to state a nonfrivolous First Amendment claim
and hence that claim is colorable.
3. Prior Restraint
Plaintiff alleges that the AECA and ITAR act as an administrative
licensing scheme for the publication of scientific papers, algorithms
and computer programs related to cryptography, since publishing could
release that information to foreign persons and would constitute
exportation under the ITAR. 22 C.F.R. Section 120.17 .19
Governmental licensing schemes, such as the AECA and ITAR, come with a
heavy presumption against their validity when they act as a prior
restraint on speech. See Nebraska Press Assoc. v. Stuart, 427 U.S. 539
(1976); New York Times Co. v. United States, 403 U.S. 713 (1971) (per
curiam); Near v. Minnesota, 283 U.S. 697 (1931). Prior restraints have
even been struck down in the face of national security concerns. See
e.a. New York Times, 403 U.S. at 714 (dissolving retraining order
against newspaper publication of Pentagon Papers that included
classified information). In New York Times the national security
asserted was too vague a justification for prior restraints. Id. at 719
(Black, J., concurring), 725-26 (Brennan, J., concurring). In his
concurrence to the per
curiam decision, Justice Stewart suggested a stringent test for
permissible prior restraints, allowing them only when "disclosure . . .
will surely result in direct, immediate, and irreparable damage to our
Nation or its people." Id. at 730 (Stewart J., concurring). In response
to the prior restraint claim, defendants rely on the argument rejected
above, that Snuffle is not speech and does not implicate the First
Amendment.
Since Snuffle is speech that is potentially subject to the prior
restraint of licensing, and under the AECA that restraint is
unreviewable, plaintiff's prior restraint claim is colorable. 20
4. Overbreadth
Plaintiff alleges that the AECA and ITAR are overbroad with respect to
their regulation of items with predominately civil applications, the
definition of export, Category XIII of the USNL, and the definition of
software.
Defendants rely extensively on Edler to argue that any overbreadth
challenge is foreclosed to plaintiff because the Ninth Circuit has
provided a limiting construction to the technical data provision. They
also cite the 1984 revisions to ITAR which they contend are even more
solicitous of speech because they provide for certain exemptions from
technical data for academic research and information in the "public
domain." Defendant Exh. lA. However, plaintiff's overbreadth claim goes
beyond the technical data provision and beyond those items classified as
technical data. The complaint makes clear that the challenge is
significantly broader than the scope of Edler and pertains to the
defense articles themselves.
Facial overbreadth is concededly "strong medicine" employed as a last
resort when a limiting construction cannot be applied to a statute.
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Defendants employ
Broadrick to propose that when conduct as well as speech is regulated,
the overbreadth must be substantial in relation to the statute's
legitimate sweep. Id. at 615. However, in a subsequent Supreme Court
decision relied upon by defendants, Members of the City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Court noted
that "where the statute unquestionably attaches sanctions to protected
conduct, the likelihood that the statute will deter that conduct is
ordinarily sufficiently great to justify an overbreadth attack." Id. at
801 n.l9 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205
(1975)). In Taxpayers for Vincent the Court clarified the application of
substantial facial overbreadth, saying there must be a "realistic danger
that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court ...." Id. at
801. Merely being able to conceive of "some impermissible applications
of a statute" is insufficient. Id. at 800.
As this court has noted above, cryptographic source code is speech. Even
if the statute aims at conduct as well as speech so as to invoke the
"substantial overbreadth" doctrine, the court at this stage of the
proceedings need only determine whether the claim is colorable. On the
record before it at this time, the court cannot say that plaintiff's
claim that enforcement of some provisions of the statute or regulations
could significantly compromise the protected speech of third parties is
frivolous.
5. Vagueness
Plaintiff alleges that a number of terms and provisions within the AECA
and ITAR are impermissibly vague in that they fail to give notice of the
conduct they regulate and have a chilling effect on speech. These
provisions include inter alia the meaning of software capable of
maintaining secrecy under Category XIII of the USML, the exemptions for
information taught in universities, the definition of public domain, and
the "willful" requirement for criminal penalties.
For a claim of facial vagueness to survive, the deterrent effect of the
statute on protected expression must be "real and substantial" and not
easily narrowed by a court. Young v. American Mini Theaters. Inc., 427
U.S. 50, 60 (1976). Defendants again rely heavily on Edler to argue that
the Ninth Circuit has already resolved the problems plaintiff
challenges. While this may be true of the technical data provision, it
leaves unaddressed numerous other areas of concern. Defendants also
conclude summarily that both the definition of cryptographic software
and the exemptions from this definition are clear to a person of
ordinary intelligence. This seems to be a bit of dissimulation, unless
it is a confession, since the ODTC itself mistakenly classified
Bernstein's academic paper as a defense article under Category XIII.
Finally, defendants contest plaintiff's vagueness challenge to the
"willful" requirement for criminal penalties, citing the Ninth Circuit's
clarification that under the AECA willfulness requires a "voluntary,
intentional violation of known legal duty ...." United States v.
Lizarraga-Lizarraga, 541 F.2d 826, 828 (1976) (construing the
predecessor to the AECA). According to Posters 'N' Things. Ltd. v.
United States, _ U.S. _ , 114 S. Ct. 1747, 1754 (1994), such a scienter
requirement helps to avoid the problem of vagueness a criminal statute
might otherwise allow.
With the exception of the claim against the willful standard for
criminal violations of the AECA, this court does not find plaintiff's
claims of vagueness frivolous.
It should be emphasized that with the exception of its conclusions that
source code is speech for the purposes of the First Amendment and that
this case is justiciable, the court makes no other substantive holdings.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that defendants'
motion to dismiss is DENIED.
IT IS SO ORDERED.
Dated: April 15, 1996 MARILYN HALL PATEL
United States District Judge
ENDNOTES
1. Defendants pose the justiciability issue as one of subject matter
jurisdiction. As those questions are distinct and defendants arguments
go to justiciability, this court addresses the motion as one pertaining
to justiciability alone. See Baker v. Carr, 369 U.S. 186, 198 (1962).
2. Except where noted, these facts come from undisputed portions of the
record.
3. Source code is the text of a source program and is generally written
in a high-level language that is two or more steps removed from machine
language which is a low-level language. High-level languages are closer
to natural language than lowlevel languages which direct the functioning
of the computer. Source code must be translated by way of a translating
program into machine language before it can be read by a computer. The
object code is the output of that translation. It is possible to write a
source program in high-level language without knowing about the actual
functions of the computer that carry out the program. Encyclopedia of
Computer Science 962, 1263-64 (Anthony Ralston & Edwin D. Reilly eds.,
3d ed. 1995)
4. The parties disagree about whether the computer code submitted by
plaintiff to the State Department is technically "software." Defendants
refer to the computer code as software even though it i8 not in object
code on a disk. Plaintiff contests this characterization. In any event,
in order to be software, which are instructions to the computer, the
instructions must be in a form that can be easily altered as
distinguished from firmware or hardware which cannot be readily altered,
if it can be altered at all.
The court notes that 22 CFR Section 121.8(f) defines "software" for the
purposes of the AECA. That definition is descriptive of content,
however, and does not define the actual format or physical form of the
software. At this stage the court need not resolve this issue since
whatever the program's form, the ODTC has subjected it to the licensing
requirements.
5. The CJ request of July 15, 1993, refers to the items as W BCJF-2, W
BCJF-3, DIBCJF-4, DJBCJF-5, and W BCJF-6 without distinguishing
information. Complaint Exh. D.
6. This statement appears to be contradicted by that court's own
reference to defendants' overbreadth claim on the preceding page of its
opinion. Martinez, 904 F.2d at 601. It is not clear whether the
overbreadth argument went to constitutionality or merely to statutory
interpretation.
7. Plaintiff argues that this court has power to review his cause of
action under a political question analysis. Even if that were so, he
fails to consider the effect of a clear statement by Congress precluding
judicial review in the context of the AECA. Furthermore, plaintiff
dedicates nearly ten pages of his brief in opposition to this motion to
arguing that review is proper under the Administrative Procedure Act
("APA"). However, as defendants note, to the extent judicial review is
precluded by statute, it is also precluded by the APA. 5 U.S.C. Section
701(a)(1) ("This chapter applies . . . except to the extent that--(l)
statutes preclude judicial review ...."). That does not necessarily
mean plaintiff's allegation that defendants exceeded their lawful
authority under the APA is unreviewable. Plaintiff is correct that U.S.
v. Bozarov allows courts to exercise review, in the face of statutory
preclusion, of "claims that the Secretary acted in excess of his
delegated authority under the EAA." 974 F.2d at 1045. Nonetheless,
defendants only argue nonjusticiability based on the First Amendment
claim. This court declines to rule on the colorability of every one of
plaintiff's claims without briefing on those issues. Currently before
the court is simply the issue of the justiciability of plaintiff's First
Amendment challenge.
8. The Court did not consider whether Doe presented a colorable
constitutional claim because that question was not properly before the
Court.
9. Defendants only argue in passing that plaintiff's claim that the CJ
determinations were made in excess of statutory authority is not
justiciable.
10. The discussion of Hiah Tech Gays in Dorfmont betrays the unusual
procedural posture the Ninth Circuit adopted in order to reach the
merits: "Without addressing whether the federal courts have jurisdiction
to hear these claims, we ruled in favor of defendants on the merits of
the equal protection attack." 913 F.2d at 1403 (emphasis added)
(citation omitted).
11. Reading "colorable" to mean sufficient to state a claim, or even
nonfrivolous, is supported by the Sixth Circuit's decision in Brooks v.
Seiter, 7-79 F.2d 1177, 1181 (6th Cir. 1985), in which the court, using
a frivolousness standard, held that plaintiff prisoners had alleged a
First Amendment violation when they complained that prison officials
withheld mail order publications. In the context of that holding, the
court said that the state interest in deferring to prison officials did
not bar courts from hearing a "colorable constitutional claim." Id.
12. If there is any uncertainty about this, defendants should state
their determination without equivocation so that the mootness issue can
be completely resolved as soon as possible.
13. Bernstein also contends that encryption software is important not
only as speech, but as a tool to protect private speech. Plaintiff
argues that cases protecting anonymous speech and prohibiting compelled
speech support this novel proposition. However, certainly at this stage,
the court need not reach the issue.
14. Plaintiff briefly argues that his encryption program, written in
source code on paper, is not functional at all. Given the ease with
which one can convert source code into object code, however, this
argument is specious. More to the point is plaintiff's contention that
source code and functioning software are both fully protected under the
First Amendment.
15. The court does not employ the word "translate" as art thereby
excluding the applicability of "compile", "interpret" or related terms.
16. Whether such "languages" as assembly language or low-level languages
constitute speech, or may sometimes constitute speech, need not be
addressed at this time in view of the court's ruling that the source
code provides the basis for a colorable claim.
17. Plaintiff cites Justice Department memoranda that question the
constitutionality of some of the ITAR provisions as well as the
propriety of an O'Brien analysis. Plaintiff Exh. A at 60007, 60090. A
1978 memo from the DOJ Office of Legal Counsel addressing the
constitutionality of the ITAR restrictions on public cryptography noted
that "even a cursory reading of the technical data provisions reveals
that those portions of the ITAR are directed at communication. A more
stringent constitutional analysis than the O'Brien test is therefore
mandated." Plaintiff Exh. A at 60084 n.16. While Snuffle was classified
as a munition rather than as technical data, Category XIII of the USML
also directly regulates public cryptography.
18. The court's narrowing construction mandates that the statute and
regulations only prohibit the export of technical data "significantly
and directly related to specific articles on the Munitions List. n 579
F.2d at 521.
19. Defendants continue to argue that plaintiff was mistaken about the
inclusion of the academic paper in the CJ determinations made by the
ODTC. As the court has noted, plaintiff had every reason to believe his
paper had been determined to be a defense article until defendants'
clarifying letter of June 29, 1995. Whether or not the prior restraint
that may have been applied to the paper is still relevant or
whether this confusion could happen again given the apparent
applicability of the public domain exception to work of this kind, 22
C.F.R. Section 120.11(a)(8), is a matter the court declines to address at this
time.
20. Defendants are correct that with respect to the two instructional
items included in the second CJ determination and which ODTC
subsequently identified as technical data, a prior restraint claim seems
foreclosed by Edler, 579 F.2d at 521 ("So confined, the statute and
regulations are not overbroad. For the same reasons the licensing
provisions of the Act are not an unconstitutional prior restraint on
speech.").
[end]
--- end of part 1 ---
David Sternlight
Thanks very much to Charlie Mingo for posting the decision. At the time I
checked the EFF site it was only available as gifs of separate pages,
quite inconvenient to obtain and read.
Having read it I can now discuss explicitly why my intuitive reaction is
that Patel is going to be reversed on appeal. She relies on:
"...'language--that is, a sophisticated and complex system of understood
meanings--is what makes it speech. Language is by definition
speech, and the regulation of any language is the regulation of
speech.
Id. at 934-35. Nor does the particular language one chooses change the
nature of language for First Amendment purposes. This court can find no
meaningful difference between computer language, particularly high-level
languages as defined above, and German or French. All participate in a
complex system of understood meanings within specific communities. Even
object code, which directly instructs the computer, operates as a
"language." When the source code is converted into the object code
"language," the object program still contains the text of the source
program. The expression of ideas, commands, objectives and other
contents of the source program are merely translated into
machine-readable code. 15 "
I think this smudges a semantic distinction caused by historical
convenience but not, as far as I know, part of settled law. That is--for
convenience many years ago we adopted the rubric "language" for
programming notation. It was convenient, easily communicatable, and had a
warm, fuzzy familiarity at a time when computers were new and we needed to
communicate what we were up to quickly and clearly to lay people. Webster,
following usage, has adopted that definition and I noted for the first
time to my glee that my Webster (Merriam-Webster's Collegiate Dictionary,
Tenth Edition) uses FORTRAN as an example. I was one of the members of the
FORTRAN group at IBM in the 1950s, and though maligned more recently, I'm
glad to see it still used as an exemplar.
(End of cut to commercial)
Having smudged the distinction between human language which naturally
evolved for direct communication between people, and notation which
amounts to functional instruction to devices, Patel then makes the leap to
'notation=language=speech'. From that she then concludes that there's a
colorable Constitutional claim here, and what's more, decides it. Make no
mistake about it, her ruling that source code is speech IS a
Constitutional determination as important as any subsequent determination
that might be then made that this particular speech is protected against
ITAR controls.
Patel is a judge of one Federal district, San Francisco. I don't see that
the government can fail to appeal this seminal finding to the Supreme
Court. On appeal, for reasons I've given above, I think she will be
reversed, with the Supreme Court making a much more careful distinction
between "language" as computer or other functional instructions to
devices, and "natural language" as speech between human beings. If they
don't use the concept "notation" in making the distinction, they will use
the concept "natural language".
David Sternlight
Los Angeles
4/19/96
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David Sternlight
by the Constitution. Let's suppose the decision stands.
Then she has placed us in a situation very like that we've been in with
respect to guns and gun control. That is--her decision creates a
Constitutional protection for source code. But unlike most speech, source
code when used as designed can cause direct consequential physical damage,
lock-stepped to the source code itself. The most obvious example is the
source code for a computer virus.
The government cannot ignore this situation, nor would most of us wish it
to. New laws against distribution and use of computer viruses would
follow, and we'd be in the same situation of turmoil that surrounds the
tension between the "right to keep and bear arms" and gun control
legislation. We'd be thrust into the same ideological dilemma between
public safety and Constitutional protections we are with guns.
Only the attorneys and lobbyists would benefit.
David
William Unruh
>Having smudged the distinction between human language which naturally
>evolved for direct communication between people, and notation which
>amounts to functional instruction to devices, Patel then makes the leap to
>'notation=language=speech'. From that she then concludes that there's a
No, she does not "SMUDGE" it. She argues that functionality is
irrelevant in deciding whether or not software is speech. She also
throws out the distinction between software on a disk or on a printed
page. It has been accepted by the gov't that software on a printed page
is speech. Ie, "Applied Crypto" or "Numerical Recipies 1st ed" are
protected speech even though they contain encryption software. The fact
that they may instead be on a disk is for her irrelevant. Thus we have a
number of possibilities. The Supreme court lets it stand. The supreme
court decides that software is not speech, no matter where it occurs.
Thus books, like Applied Crypto or Numerical Recipies, or many other
books contain large sections which are not speech. I somehow doubt that
they will come to that conclusion. Finally they could decide that speech
depends on the form in which it is exercised- if on printed pages it is
speech, but if on a disk or over the internet it is not speech. Given
that they have ruled that music or flag burning can be speech, it seems
hard to see them deciding that speech must use carbon black on organic
fibres, but not magnetic domains on rust ( when it can use flames on
organic fibres.)
Remember that she did not rule (but did discuss it) that object code was
speech, but that source code in a higher computer language was-
especially since the only purpose of higher languages is to communicate
with humans, to make the instructions to the computer understandable by
humans.
To make a long story short, I (as a non-lawyer with as much legal
training as David has) do not believe it will be reversed if
appealed. Furthermore, a failed appeal would be binding on the whole
of the USA. Not appealing would simply make it an ignorable precident on
all other districts. (Ie, her decision is not binding except in her
district). Given those choices, would you appeal?
The best line in the judgement for me was
" Defendants also
conclude summarily that both the definition of cryptographic software
and the exemptions from this definition are clear to a person of
ordinary intelligence. This seems to be a bit of dissimulation, unless
it is a confession, since the ODTC itself mistakenly classified
Bernstein's academic paper as a defense article under Category XIII."
Of course it need be neither dissimulation or a confession, it may
simply be a decision not to be bound by the rule of law unless forced
to do so in any specific case, knowing that most specific cases will not
go to court. )
--
Bill Unruh
un...@physics.ubc.ca
William Unruh
>Judge Patel has decided that source code is language is speech protected
>by the Constitution. Let's suppose the decision stands.
>Then she has placed us in a situation very like that we've been in with
>respect to guns and gun control. That is--her decision creates a
>Constitutional protection for source code. But unlike most speech, source
>code when used as designed can cause direct consequential physical damage,
>lock-stepped to the source code itself. The most obvious example is the
>source code for a computer virus.
So can all speech. Remember the famous example of shouting "Fire" in a
crowded theatre. Congress will then have to pass laws which are carefull
crafted to limit the damage done by unacceptable "speech" and not to be
so broad as to cover everything. They do it all the time- hate
laws, copyright laws, sedition, treason, slander and libel, .....
Besides, there is (as far as I know) no evidence that laws against computer
viruses are or will be effective. And laws which are simply there to
express unenforceable moral concern should not be passed.
>The government cannot ignore this situation, nor would most of us wish it
>to. New laws against distribution and use of computer viruses would
>follow, and we'd be in the same situation of turmoil that surrounds the
>tension between the "right to keep and bear arms" and gun control
>legislation. We'd be thrust into the same ideological dilemma between
>public safety and Constitutional protections we are with guns.
That dilemma is there with respect to the whole consitution. Anything
which places limits on the powers of governement can at times run into
conflict with "public safety". And the courts are perfectly willing to
resolve those tensions in favour of public safelty, as long as the danger
can be sufficiently exactly defined, and as long as the laws are
sufficiently narrow so as to encompass only the remedy for that danger.
Do you really want the situation in which the gov't can pass broad vague
laws regarding computers or software?
>Only the attorneys and lobbyists would benefit.
It could be argued with equal force that that is true of the whole constitution.
--
Bill Unruh
un...@physics.ubc.ca
Jim Ebright
be reversed' statement without having read the decision :)
Note that the decision is only that the case has sufficient merit not
to be dismissed... no determination of the actual merits were made.
Language is used to express ideas. Computer lagnuages are fairly precise
expressions of ideas. The syntax of computer lagnuages has less ambiguity
than English or French. That makes it more useful. For example, COBOL
was specifically designed to be a dialect of English which could be
understood by computers. Object code is an expression of the ideas
taylored to an even higher specificity. The expression of ideas is
speech...even if it is not spoken (ala the flag burning decision).
I'd say the Judge's decision that Snuffle is speech will stand.
The only hope Big Brother has is that the Judge will later rule the ITARs
fall under the incidential supression apparently allowed by the OBrian(?)
decision.
I thought it interesting Big Brother tried to tell the court it wasn't
allowed to rule on the Constitutionality of the Act because the Act says
administrative decisions under the Act can not be reviewed in court.
It's not over yet but Big Brother lost round 1! :)
--
A/~~\A Jim Ebright NET Security: http://www.coil.com/~ebright/security.html
((0 0))_______ mailto:ebr...@coil.com "I used to hunt elephants but I
\ / the \ don't do that anymore. There aren't enough of them" - Newt
(--)\ OSU | Gingrich to Andy Lodge, Theo.Roosevelt Cons. Award winner.
D. J. Bernstein
David Sternlight <da...@sternlight.com> wrote:
> Having smudged the distinction between human language which naturally
> evolved for direct communication between people, and notation which
> amounts to functional instruction to devices, Patel then makes the leap to
> 'notation=language=speech'.
A ``leap''? You conveniently omitted Judge Patel's careful analysis
of exactly this issue:
Contrary to defendants' suggestion, the functionality of a language
does not make it any less like speech... Instructions, do-it-yourself
manuals, recipes, even technical information about hydrogen bomb
construction ... are often purely functional; they are also speech.
...
Defendants argue in their reply that a description of software in
English informs the intellect but source code actually allows someone
to encrypt data. 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. Its support
in First Amendment law is nonexistent.
---Dan
Charles H Mingo
>
>The only hope Big Brother has is that the Judge will later rule the ITARs
>fall under the incidential supression apparently allowed by the OBrian(?)
>decision.
O'Brian involved expressive conduct, and gave the govenrment much more
latitide than in a case involving pure speech. The Court only
discussed O'Brian, because the parties had briefed it, and the court
wanted to show that the claims were colorable even under O'Brian.
Given the court's determination that software is speech, not expressive
conduct, the government will have to justify prior restrants under
the very strict Pentagon Papers standard.
D. J. Bernstein
David Sternlight <da...@sternlight.com> wrote:
> But unlike most speech, source
> code when used as designed can cause direct consequential physical damage,
So what? Do you think useful speech isn't speech? Do you understand the
difference between producing information and using it? Anyway, what
relevance does this have to encryption? Encryption is perfectly legal.
> The most obvious example is the source code for a computer virus.
A rather pathetic example. The unreasonable effectiveness of viruses is
a temporary phenomenon in the history of computing, with no place in a
world of open source code and security-conscious systems programmers.
Do you have any plausible arguments, or was that your best shot?
---Dan
Ken Bass
Bernstein case, note that there is a similar case in the
federal court for the District of Columbia, Karn v. Dept. of
State, where Judge Richey, while holding that a First
Amendemnt analysis was appropriate, went much further than
Judge Patel and reached the ultimate merits. He held that:
1) the proper Fist Amendment analysis is the less-protective
"O"Brien" speech/conduct test, not the more protective "New
York Times/clear-and-presentdanger" test;
2) barring exports of crypto source code on diskettes was
permissible under the O"Brien standard; and
3) State did not, in his view, make an unallowable
distinction in preventing export of cryptographic source code
on diskette while allowing export of the identical source
code in a book.
Both Karn and Bernstein raise important First Amendment
issues realting to crypto and export controls. Karn will,
however, reach the appellate level first. Judge Richie
dismissed Karn's suit, rendering a final, appealable order.
The Notice of Appeal was filed on April 19.
The full text of the decision, as well as more info on the
Karn case is available at:
Iolo Davidson
da...@sternlight.com "David Sternlight" writes:
> Judge Patel has decided that source code is language is speech
> protected by the Constitution. Let's suppose the decision stands.
Yes, lets.
> Then she has placed us in a situation very like that we've been
> in with respect to guns and gun control.
Are you in favour of the repeal of the constitutional right to
bear arms?
> That is--her decision creates a
> Constitutional protection for source code.
No, it simply acknowledges that source code is already protected,
by an existing constitutional provision of long standing.
> But unlike most speech, source code when used as designed can
> cause direct consequential physical damage, lock-stepped to the
> source code itself. The most obvious example is the source code
> for a computer virus.
Source code for computer viruses is readily available. So is the
executable code. Legitimate anti-virus researchers (of which I
am one) exchange such material all the time, between themselves
and with their customers. If the law prohibits them from doing
so (as the laws of Switzerland and Italy unwisely do), then they
are hampered in their work of providing remedies for newly
created viruses.
Laws against computer viruses usually don't mention the word
"virus" at all, but speak of "unauthorised modification", which
requires an overt act leading to a modification which the owner
of the computer does not authorise.
In the case of viruses, this act would usually involve covert
distribution of a virus infected executable. Distribution of the
source will not lead to an unauthorised modification. It might
be possible to support a case for incitement, but not of
unauthorised modification itself.
In Great Britain, Christopher Pile was convicted (10 counts)
under the "unauthorised modification" provision of the Computer
Misuse act and sentenced to 18 months in jail, for an act of
covert distribution of a computer virus. He was also convicted
of one count of incitement, for distributing a package of
software to make it easy for others to write viruses. The law
under which he was convicted does not prohibit the exchange of
research material between myself and my colleagues, nor the
ability of our customers to send us samples of suspect viruses
from the field.
> The government cannot ignore this situation, nor would most of us
> wish it to. New laws against distribution and use of computer
> viruses would follow, and we'd be in the same situation of
> turmoil that surrounds the tension between the "right to keep and
> bear arms" and gun control legislation. We'd be thrust into the
> same ideological dilemma between public safety and Constitutional
> protections we are with guns.
The USA already has laws that counter the deliberate spread of
computer viruses without affecting freedom of speech. They are
drafted in terms of "it is an offence to shoot people" rather
than "it is an offence to own a gun". That is how it should be
in a free society.
Visit http://www.ibmpcug.co.uk/~drsolly for the text of many laws
relating to computer viruses, USA state and Federal, Great
Britain, and other countries.
--
THE CANNONEERS USED TIN SHEARS
WITH HAIRY EARS UNTIL THEY FOUND
ON WIRY WHISKERS Burma-Shave
Jim Ebright
>As to the prognostications of appellate results in the
>Bernstein case, note that there is a similar case in the
>federal court for the District of Columbia, Karn v. Dept. of
>State, where Judge Richey, while holding that a First
>Amendemnt analysis was appropriate, went much further than
>Judge Patel and reached the ultimate merits. He held that:
>1) the proper Fist Amendment analysis is the less-protective
>"O"Brien" speech/conduct test, not the more protective "New
>York Times/clear-and-presentdanger" test;
>2) barring exports of crypto source code on diskettes was
>permissible under the O"Brien standard; and
>3) State did not, in his view, make an unallowable
>distinction in preventing export of cryptographic source code
>on diskette while allowing export of the identical source
>code in a book.
It is clear to me the courts are very likely to rule that source code
is protected speach...heck, COBOL is just a dialect of English designed
to be machine readible...
The crux of the case will be decided on weither the O'Brien restrictions
on free speech are permitted. I have extracted the relevant sections of
the two decisions so that you can see the conflict between the two judges.
Remember in the first case (Patel's decision) the Judge is only ruling on
weither there is something sufficiently meritorious to make a further
ruling...
Judge Patel says...
>Under O'Brien a regulation of conduct that incidentally
>restricts speech will be valid if 1) it is within the power of the
>government, 2) it furthers an important or substantial government
>interest, 3) the government interest is unrelated to the suppression of
>free expression and 4) the incidental restriction on speech is no
>greater than is essential to further that interest. Id. at 377.
>
>Given that Snuffle source code is speech and not conduct, O'Brien does
>not appear to provide the appropriate standard under which to evaluate
>plaintiff's claims. (Note 17) However, as the parties have not had an
...
>
>ENDNOTES
>
...
>17. Plaintiff cites Justice Department memoranda that question the
>constitutionality of some of the ITAR provisions as well as the
>propriety of an O'Brien analysis. Plaintiff Exh. A at 60007, 60090. A
>1978 memo from the DOJ Office of Legal Counsel addressing the
>constitutionality of the ITAR restrictions on public cryptography noted
>that "even a cursory reading of the technical data provisions reveals
>that those portions of the ITAR are directed at communication. A more
>stringent constitutional analysis than the O'Brien test is therefore
>mandated." Plaintiff Exh. A at 60084 n.16. While Snuffle was classified
>as a munition rather than as technical data, Category XIII of the USML
>also directly regulates public cryptography.
And Judge Richey said: (sorry, it's a pain with PICO to put the ">" in
front of the lines :) ...
As a threshold matter, for the purpose of addressing the dispositive issue
whether the regulation is justified and permissible, the Court will assume
that the protection of the First Amendment extends to the source code, 19
and the comments on the plaintiff's diskette. 20 The Supreme Court has
described the First Amendment right to free speech as that which
"generally prevents the government from proscribing speech because of
disapproval of the ideas expressed." R.A.V. v. city of St. Paul, ___ U.S.
___ 112 5. Ct. 253B, 2542 (citations omitted) . Assuming the source codes
and comments are within the arena of protected speech, the Court must then
determine the basis for the regulation at issue in this case.
The rationale for a regulation determines the level of scrutiny to be
applied to said regulation; if the regulation is content-based, the
regulation will be "presumptively invalid," whereas if the regulation is
content-neutral, then the government may justify the regulation if certain
other criteria are met. Id. at 2542-54. These additional criteria --
whether the regulation is (1) within the constitutional power of the
government, (2) ;furthers an important or substantial governmental
interest, and (3) is narrowly tailored to the governmental interest - -
have been referred to as the O'Brien test after the Supreme Court upheld
the government's prohibition against burning draft cards based on these
criteria in United States. v- O'Brien, 391 U.S. 367 (1968)
The plaintiff disputes this characterization of the law, arguing that the
nature of the matter regulated, (e.g., whether "conduct" or "pure
speech"), as opposed to the rationale for the regulation, actually
dictates the level of scrutiny to be applied. The plaintiff submits that
the O'Brien criteria are inapplicable because they apply only to the
regulation of "conduct", and that the Karn diskette is "pure speech", the
regulation of which should require strict scrutiny review. The Court
disagrees, as the plaintiff's argument places form over substance.
Pursuant to extensive First Amendment jurisprudence, the government's
rationale for the regulation controls, regardless of the form of the
speech or expression regulated. See Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) ("Time, place, and manner" restriction on music permitted
where, among other things, regulation was content-neutral); Clark v.
Community of Creative Non-Violence, 468 U.S. 288, 298 (1984) (Standard for
evaluating expressive conduct, including requirement that regulation be
content-neutral, "is little, if any, different from standard applied to
time, place, or manner restrictions"); O'Brien, 391 U.S. at 377
(Government prohibition against burning of draft cards sufficiently
justified if, among other things, "the governmental interest is unrelated
to the suppression of free expression"). Accordingly, it is unnecessary
for the Court to make any finding regarding the nature of the matter
contained on the Karn diskette.
The government regulation at issue here is clearly content- neutral. The
defendants' rationale for regulating the export of the diskette is that
"the proliferation of [cryptographic hardware and software] will make it
easier for foreign intelligence targets to deny the United States
Government access to information vital to national security interests."
Crowell Decl. at 3. The defendants are not regulating the export of the
diskette because of the expressive content of the comments and or source
code, but instead are regulating because of the belief that the
combination of encryption source code on machine readable media will make
it easier for foreign intelligence sources to encode their communications.
The government considers the cryptographic source code contained on
machine-readable media as cryptographic software and has chosen to
regulate it accordingly.
The plaintiff does not dispute this motive for regulating the export of
the diskette, but instead questions the logic of such a motive in light of
the plaintiff's allegations that, without compiling the source code and
without further programming, the Karn diskette does not perform a
cryptographic function, and that there is no actual danger to national
security because the source codes can be obtained abroad through the book
or on the Internet. Such issues are not material to the determination of
content neutrality. In this case, the plaintiff has not presented any
evidence to suggest the bad faith of the government, or that the
government's expressed motive is a pretense. Accordingly, the Court finds
that the rationale expressed by the government is content-neutral and the
regulation is subject to the standards set forth by the Supreme Court in
O'Brien.
2. The Regulation Of The Diskette Meets The O'Brien Test Because It Is
Within The Power Of The Government To Control The Export Of Defense
Articles, It Furthers The Significant Governmental Interest of preventing
The Proliferation Of Cryptographic Products, And It Is Narrowly Tailored
To Meet That Interest.
As stated previously, a content-neutral regulation is justified under the
O'Brien test if it is within the constitutional power of the government,
it "furthers an important or substantial governmental interest," and "the
incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest." O'Brien, 391 U.S.
at 377. The plaintiff does not dispute that regulating the export of
cryptographic software is within the constitutional power of government.21
Nor does the plaintiff expressly dispute the second requirement, that the
government has an important interest at stake. The defendants have
submitted evidence, which the plaintiff does not dispute, stating that the
interception of communication made by foreign intelligence targets is
"essential to the national defense, national security, and the conduct of
the foreign affairs of the United States." Crowell Decl. at 3. In the
context of this factual backdrop, the defendants have expressed the
following government interest for justifying the regulation of the
plaintiff's diskette: "the proliferation of cryptographic products will
make it easier for foreign intelligence targets to deny the United States
Government access to information vital to national security interests."
Crowell Decl. at 3.
The plaintiff argues instead that the third prong of the O'Brien test is
not satisfied because the cryptographic algorithms contained on the Karn
diskette are "already widely available in other countries (through the
Internet and other sources] or are so 'weak' that they can be broken by
the [National Security Agency]." 22 Plaint's Opp. 5-l6. Although the
plaintiff has labeled his argument as one concerning the "narrowly
tailored restriction" requirement of the O'Brien test, the plaintiff's
argument implicates the second O'Brien requirement by questioning whether
the government has a legitimate interest at stake. Indeed, the plaintiff
contends that his argument constitutes a factual dispute with the
defendants, making the plaintiff's First Amendment claim inappropriate for
summary judgment as a matter of law.
The Court does not agree. The plaintiff attempts to disguise a
disagreement with the foreign policy judgment of the President as a
factual dispute. By placing cryptographic products on the ITAR, the
President has determined that the proliferation of cryptographic products
will harm the United States. This policy judgment exists despite the
availability of cryptographic software through the Internet and the
National Security Agency's alleged ability to break certain codes. Even if
this were a factual dispute, it is not one into which this Court can or
will delve. The Court will not scrutinize the President's foreign policy
decision. As the Supreme Court stated in Chicago & Southern Air Lines
v. Waterman 55. Corn., 333 U.S. 103 (1948), such decisions: "are delicate,
complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare
they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility and which
has long been held to belong in the domain of political power not subject
to judicial intrusion or inquiry."
333 U.S. at 111. The plaintiff also suggests that the Court balance any
First Amendment harms created through regulation of the diskette against
the injury caused to national security if the export of the diskette were
not regulated. See Plaint's Opp. 16. However, unlike Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 508 (1969), where the
Supreme Court applied an 'ad hoc balancing test, such a test in the case
at bar would require the Court to scrutinize the actual injury to national
security. Again, the Court declines to do so. See United States v. Mandel,
914 F.2d 1215, 1223 (9th Cir. 1990) ("[W]hether the export of a given
commodity would make a significant contribution to the military potential
of other countries . . . is a political question not subject to review to
determine whether [it] had a basis in fact"); United States v. Martinez,
904 F.2d 601, 602 (11th Cir. 1990) ("The question whether a particular
item should have been placed on the Munitions List possesses nearly every
trait that the Supreme Court has enumerated traditionally renders a
question `political'"). Furthermore, the plaintiff cannot genuinely
dispute that, absent the restriction on the export of cryptographic
products and the plaintiff's diskette, the actual number of cryptographic
products 23 available to foreign intelligence sources will be greater.
Finally, the plaintiff has not advanced any argument that the regulation
is "substantially broader than necessary" to prevent the proliferation of
cryptographic products. City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 808 (1984). Nor has the plaintiff articulated any
present barrier to the spreading of information on cryptography "by any
other means" other than those containing encryption source code on
machine-readable media. See, 468 U.S. at 295. Therefore, the Court holds
that the regulation of the plaintiff's diskette is narrowly tailored to
the goal of limiting the proliferation of cryptographic products and that
the regulation is justified.
*** end of Judge Richey quote***
It is, of course, bullshit to maintain that widespread use of
cryptography will mean it is now available to foreign intelligence
agencies... It will just mean that average citizens will have it
available. So, it seems to me clear the second test of O'Brien fails.
(Unless spying on normal citizens is a vital interest of the government ;)
Oh well...
David Sternlight
> It is interesting (but irrelevant) that Sternlight made his 'she will
> be reversed' statement without having read the decision :)
Nothing like starting off with an attempted make-wrong, eh. I see your
style hasn't changed.
>
> Note that the decision is only that the case has sufficient merit not
> to be dismissed... no determination of the actual merits were made.
The decision is a major precedent that source code=speech.
>
> Language is used to express ideas. Computer lagnuages are fairly precise
> expressions of ideas. The syntax of computer lagnuages has less ambiguity
> than English or French. That makes it more useful. For example, COBOL
> was specifically designed to be a dialect of English which could be
> understood by computers. Object code is an expression of the ideas
> taylored to an even higher specificity. The expression of ideas is
> speech...even if it is not spoken (ala the flag burning decision).
>
> I'd say the Judge's decision that Snuffle is speech will stand.
You have your opinion and I have mine. We shall see.
David
David Sternlight
> In article <3178C0...@venable.com>, Ken Bass <KB...@venable.com> wrote:
> >As to the prognostications of appellate results in the
> >Bernstein case, note that there is a similar case in the
> >federal court for the District of Columbia, Karn v. Dept. of
> >State, where Judge Richey, while holding that a First
> >Amendemnt analysis was appropriate, went much further than
> >Judge Patel and reached the ultimate merits. He held that:
> >1) the proper Fist Amendment analysis is the less-protective
> >"O"Brien" speech/conduct test, not the more protective "New
> >York Times/clear-and-presentdanger" test;
> >2) barring exports of crypto source code on diskettes was
> >permissible under the O"Brien standard; and
> >3) State did not, in his view, make an unallowable
> >distinction in preventing export of cryptographic source code
> >on diskette while allowing export of the identical source
> >code in a book.
> ...
>
> It is clear to me the courts are very likely to rule that source code
> is protected speach...heck, COBOL is just a dialect of English designed
> to be machine readible...
No. COBOL is a dialect of machine notation designed to be English readable.
You have to look at the original intent.
> As a threshold matter, for the purpose of addressing the dispositive issue
> whether the regulation is justified and permissible, the Court will assume
> that the protection of the First Amendment extends to the source code, 19
> and the comments on the plaintiff's diskette.
I have no trouble with this one, as I did with Patel. Here "the court will
assume" and then he finds against Karn. I don't think "the court will
assume" establishes a precedent. Further, there's no harm to either party
from that assumption--the assumption is favorable to Karn and it didn't
help to defeat State's position. Thus I don't see that bit as appealable,
as I do Patel. In Patel's case she was ruling on a motion to dismiss, and
her ruling that source code=speech did make the difference in her ruling
on that motion.
>
> The Court does not agree. The plaintiff attempts to disguise a
> disagreement with the foreign policy judgment of the President as a
> factual dispute. By placing cryptographic products on the ITAR, the
> President has determined that the proliferation of cryptographic products
> will harm the United States. This policy judgment exists despite the
> availability of cryptographic software through the Internet and the
> National Security Agency's alleged ability to break certain codes. Even if
> this were a factual dispute, it is not one into which this Court can or
> will delve. The Court will not scrutinize the President's foreign policy
> decision. As the Supreme Court stated in Chicago & Southern Air Lines
> v. Waterman 55. Corn., 333 U.S. 103 (1948), such decisions: "are delicate,
> complex, and involve large elements of prophecy. They are and should be
> undertaken only by those directly responsible to the people whose welfare
> they advance or imperil. They are decisions of a kind for which the
> Judiciary has neither aptitude, facilities nor responsibility and which
> has long been held to belong in the domain of political power not subject
> to judicial intrusion or inquiry."
The above is a classic which should be engraved on the nose of every
poster who is not charged with making national policy decisions which may
advance or imperil the welfare of others. Such people speak only for
themselves and their friends, without any legal responsibility for the
welfare of the populace, nor any liability for the consequences if their
advocacy should lead to a diminution of public welfare. It seems nothing
but arrogance to assert that one knows more than the President and State
Department about what will imperil the general welfare, and what's worse,
accuse them of base and indirect motives when they make that call in a way
not to the liking of the speaker.
> See United States v. Mandel,
> 914 F.2d 1215, 1223 (9th Cir. 1990) ("[W]hether the export of a given
> commodity would make a significant contribution to the military potential
> of other countries . . . is a political question not subject to review to
> determine whether [it] had a basis in fact"); United States v. Martinez,
> 904 F.2d 601, 602 (11th Cir. 1990) ("The question whether a particular
> item should have been placed on the Munitions List possesses nearly every
> trait that the Supreme Court has enumerated traditionally renders a
> question `political'"). Furthermore, the plaintiff cannot genuinely
> dispute that, absent the restriction on the export of cryptographic
> products and the plaintiff's diskette, the actual number of cryptographic
> products 23 available to foreign intelligence sources will be greater.
This one speaks to the "cat is out of the bag" argument as well. As
readers will by now have concluded, I quite like this judge's reasoning.
>
> Finally, the plaintiff has not advanced any argument that the regulation
> is "substantially broader than necessary" to prevent the proliferation of
> cryptographic products. City Council of Los Angeles v. Taxpayers for
> Vincent, 466 U.S. 789, 808 (1984). Nor has the plaintiff articulated any
> present barrier to the spreading of information on cryptography "by any
> other means" other than those containing encryption source code on
> machine-readable media. See, 468 U.S. at 295. Therefore, the Court holds
> that the regulation of the plaintiff's diskette is narrowly tailored to
> the goal of limiting the proliferation of cryptographic products and that
> the regulation is justified.
>
> *** end of Judge Richey quote***
>
>
> It is, of course, bullshit to maintain that widespread use of
> cryptography will mean it is now available to foreign intelligence
> agencies...
It is, of course, bullshit to say that the above is what Judge Richey
relied on. Read it again. What part of "the actual number of cryptographic
products available to foreign intelligence sources will be greater" don't
you understand.
>It will just mean that average citizens will have it
> available. So, it seems to me clear the second test of O'Brien fails.
> (Unless spying on normal citizens is a vital interest of the government ;)
> Oh well...
This case has to do with exports, not domestic use of crypto. Thus I
assume that you mean "average citizens" overseas. But they already have
PGP available so your argument even there is nonsensical. The number
available to anyone would be greater.
Note also that the term of art "foreign intelligence sources" is used in
the Judge's reasoning. That term is far broader than you'd like to make
out, and includes the vast volume of traffic that's now plaintext and has
intelligence value.
David
Marc Thibault
> Constitutional protection for source code. But unlike most speech, source
> code when used as designed can cause direct consequential physical damage,
> lock-stepped to the source code itself. The most obvious example is the
> source code for a computer virus.
The only difference between a text description, mathematical
formula, pseudo-code, and source code is the ease with which
it is compiled into object code and run. For any unambiguous
description, a compiler either exists or can be constructed.
It seems to me that Patel has recognised this lack of
distinction between a concise textual description and "source
code".
Precise mathematical formulae and psuedo-code are normally
used to communicate ideas in a concise form. Most contemporary
programmers' resources bypass psuedo code and use a common
high-level language instead (the use of psuedo-code has always
been more of a political than a technical decision; when 'C'
became the dominant programming language, psuedo-code all but
disappeared). The only difference between psuedo-code and
source code is the temporary absence of a compiler for the
former. There are a variety of compilers for mathematical
formulae. In at least one case (APL) a mathematical notation
was so effective that a compiler was built for it.
You can't single out source code without snaring all
unambigous descriptions along with it. If I publish a
carefully-worded, unambiguous description of a high-security
algorithm, and someone later devises an interpreter that can
run my description, am I retroactively in violation of ITAR?
Is she?
On the other point - the source code for a virus isn't a
virus, any more than the plans for a bomb are a bomb. Both
have to be fed into a manufacturing process to be effective.
Some person has to do that.
The plans for a baseball bat, when used as designed, can cause
direct consequential physical damage. It is not the design,
but the use, that determines the consequences.
Cheers,
Marc
---
This is not a secure channel; Assume nothing.
Marc Thibault Information Systems Architect
http://www.synapse.net/~mthibault
Key fingerprint = 76 21 A3 B2 41 77 BC E8 C9 1C 74 02 80 48 A0 1A
Phil Karn
> A rather pathetic example. The unreasonable effectiveness of viruses is
> a temporary phenomenon in the history of computing, with no place in a
> world of open source code and security-conscious systems programmers.
Even here you can draw a big distinction between unleashing a virus and
merely publishing its contents as an educational tool. The difference is
exactly that which has long distinguished unprotected from protected speech --
i.e., whether the very act of "speaking" directly causes damage, or whether
the speech may merely enable someone who is so inclined to cause damage.
Phil
William Unruh
>Department about what will imperil the general welfare, and what's worse,
>accuse them of base and indirect motives when they make that call in a way
>not to the liking of the speaker.
David- I believe that it has been you who has been accusing them of
"base and indirectmotives" when you state that the reason for the
encryption licensing is commercial, while it is implimented under a law
that regulates defence articles.
--
Bill Unruh
un...@physics.ubc.ca
Ed Stone
well-established provisions for that small part of speech that "can
cause direct consequential physical damage", and those are
adequate, obviously, at equity, to providing remedy to the consequences
of harmful source code. The metaphor of "language" extended to the
syntax and context of a set of compiler-ready instructions, even if
excruciatingly weak, is irrelevant. Speech is a set of thoughts
expressed in a fashion so as to make them communicable. Thus, at various
times, it is found that setting afire cloth bearing stars and stripes is
speech (protected); putting a crucifix in urine is speech (protected).
No words, no writing, no sound, just a "symbollic expression". In this
arena, against that backdrop, the government will be hard pressed to
describe without arbitrariness, the criteria we may apply to determine
that source code is not speech, but a Maplethorpe photograph is. Until
civil liberties are further curtailed, this is a finding of some import.
David Sternlight wrote:
>That is--her decision creates a
> Constitutional protection for source code. But unlike most speech, source
> code when used as designed can cause direct consequential physical damage,
> lock-stepped to the source code itself. The most obvious example is the
> source code for a computer virus.
>
> The government cannot ignore this situation, nor would most of us wish it
> to. New laws against distribution and use of computer viruses would
> follow, and we'd be in the same situation of turmoil that surrounds the
> tension between the "right to keep and bear arms" and gun control
> legislation. We'd be thrust into the same ideological dilemma between
> public safety and Constitutional protections we are with guns.
>
> Only the attorneys and lobbyists would benefit.
>
> David
--
---------------------------------
Ed Stone
est...@synernet.com
---------------------------------
Bill Sommerfeld
David Sternlight <da...@sternlight.com> wrote:
>Having smudged the distinction between human language which naturally
>evolved for direct communication between people, and notation which
>amounts to functional instruction to devices, Patel then makes the leap to
>mistake about it, her ruling that source code is speech IS a
>Constitutional determination as important as any subsequent determination
>that might be then made that this particular speech is protected against
>ITAR controls.
David,
The following quotes document that for over ten years, some computer
scientists have considered source code to be a way for programmers to
communicate with each other -- much more than merely a way for a
programmer to tell a computer how to do something.
In my work as a software engineer working on very large systems, I
spend far more time reading source code written by others than writing
my own source code. In any non-trivial system, source code must be
written to be *read* by other programmers.
Knuth's "literate programming" predates this by quite some time as
well.
From Structure and Interpretation of Computer Programs
Harold Abelson and Gerald Jay Sussman, with Julie Sussman.
MIT Press, 1985
[I purchased my copy of the text in September 1984]
From the Preface:
"Our design of this introductory computer-science subject reflects two
major concerns. First, we want to establish the idea that a computer
language is not just a way of getting a computer to perform operations
but rather that it is a novel formal medium for expressing ideas about
methodology. Thus, programs must be written for people to read, and
only incidentally for machines to execute. ... "
From the Foreword, by Alan J. Perlis:
"To appreciate programming as an intellectual activity in its own
right you must turn to computer programming; you must read and write
computer programs -- many of them."
These two quotes clearly show that computer programs are not just
"devices", but rather, that they form a way for two or more
programmers to communicate.
- Bill
--
------------------ PGP.ZIP Part [023/713] -------------------
David Sternlight
> da...@sternlight.com (David Sternlight) writes:
>
> > Constitutional protection for source code. But unlike most speech, source
> > code when used as designed can cause direct consequential physical damage,
> > lock-stepped to the source code itself. The most obvious example is the
> > source code for a computer virus.
>
> The only difference between a text description, mathematical
> formula, pseudo-code, and source code is the ease with which
> it is compiled into object code and run. For any unambiguous
> description, a compiler either exists or can be constructed.
> It seems to me that Patel has recognised this lack of
> distinction between a concise textual description and "source
> code".
Some fancy begging the question here. The point isn't that source code can
also be used to communicate ideas. Of course it can. The point is that its
primary purpose is as a functional object, not language, to tailor a
machine (computer) to perform a set of operations. In that sense it is no
different than a black box that directly causes tick-tick-tick-boom.
That crucial distinction is what produced the flag-burning decision. There
it was the opposite situation--the primary purpose was to communicate
political expression, i.e. speech, and not to raise a piece of cloth to a
particular temperature. In contrast, the primary purpose of crypto source
code is to encrypt traffic, not to express political ideas.
Of course that's my analysis. Your mileage may vary, but not in California.
>
> Precise mathematical formulae and psuedo-code are normally
> used to communicate ideas in a concise form. Most contemporary
> programmers' resources bypass psuedo code and use a common
> high-level language instead (the use of psuedo-code has always
> been more of a political than a technical decision; when 'C'
> became the dominant programming language, psuedo-code all but
> disappeared). The only difference between psuedo-code and
> source code is the temporary absence of a compiler for the
> former. There are a variety of compilers for mathematical
> formulae. In at least one case (APL) a mathematical notation
> was so effective that a compiler was built for it.
>
> You can't single out source code without snaring all
> unambigous descriptions along with it.
Sure you can. A technical paper (that doesn't contain source code) cannot
be fed into a computer to encrypt traffic. It is primarily a means of
expressing ideas. Source code can. It is primarily a process engine.
> If I publish a
> carefully-worded, unambiguous description of a high-security
> algorithm, and someone later devises an interpreter that can
> run my description, am I retroactively in violation of ITAR?
> Is she?
How many angels can dance on the head of a pin? Not relevant to the
current discussion. If my Grandmother had (Exoned) she'd have been my
Grandfather.
>
> On the other point - the source code for a virus isn't a
> virus, any more than the plans for a bomb are a bomb. Both
> have to be fed into a manufacturing process to be effective.
> Some person has to do that.
The difference is that the source code automatically produces the virus
which does it's virus thing when fed to the right machine. In effect the
source code IS the virus, lacking only the machine to execute it. The
plans for a bomb don't go boom, no matter how many times you feed them to
an OCR device. They are plans, not a bomb.
This is an important distinction. The map is not the territory. The plans
are not the bomb. But the source code IS, for all practical purposes, the
virus. In fact if a machine executed source code (there are such machines)
--it would suffer the damage from the virus coded as source code.
In contrast, there's no such thing as a machine executing the plans (paper
documents) for a bomb and blowing itself up. You have to physically
convert the plans into a bomb.
Let me put it another way: in today's practical world the plans for a bomb
have to be processed via human intelligence to produce a bomb, which then
must be planted and triggered. The source code works automatically. Read
it into an interpreter and it wipes your hard disk.
So we're down to the distinction between interpreters and compilers and I
think that to be a distinction without a difference for the purposes of
whether source code is speech or a functional object.
>
> The plans for a baseball bat, when used as designed, can cause
> direct consequential physical damage.
No. Someone has to make and then swing the bat. Source code is different.
See above.
> It is not the design,
> but the use, that determines the consequences.
Nope. That's the same failed and brain-dead slogan the gun folks use--guns
don't kill people, people do. Nevertheless we regulate guns under the law,
and with good Constitutional reason. Same for source code. Make no
mistake--source code in machine readable form for a virus IS a gun, not
the plan for a gun. And in these days of OCR, any source code on paper is
machine readable.
Again, you may not agree with my set of distinctions, but that's where I
am on this issue. You're entitled to your own views, and eventually the
courts will make it an IS by either letting Patel's decision stand or
overruling her. I've said what I think; others have argued their views. No
need to turn this into another interminable thread, eh?
David
John Nagle
>> It is clear to me the courts are very likely to rule that source code
>> is protected speach...heck, COBOL is just a dialect of English designed
>> to be machine readible...
Re source code as speech:
Previous cases have established that, for first amendment
purposes, phonograph records, movies, video tapes, music, and piano rolls
are to be treated as speech. The judge says it best:
Defendants argue in their reply that a description of software in
English informs the intellect but source code actually allows someone
to encrypt data. 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. Its support
in First Amendment law is nonexistent.
This really is the dream case on export controls; the plaintiff is
trying to publish something and is being restrained under threat of
criminal prosecution. That's a pure first amendment issue.
And there are few distracting issues here; the plaintiff owns the
material in question, the intent is publication, no classified-material
issue obtains, the publication is not incidental to the export of
a tangible item, and administrative remedies have already been exhausted.
So this one will have to be decided squarely on constitutional grounds.
John Nagle
Marc Thibault
> >
> > The plans for a baseball bat, when used as designed, can cause
> > direct consequential physical damage.
>
> No. Someone has to make and then swing the bat. Source code is different.
> See above.
That's precisely the point. Someone has to feed the source
code to an interpreter. That's easier than making a bat, but
not materially different. If the bat design is on a piece-part
tape and I feed it to an NC mill, it will interpret the design
and output a bat-object in as heavy a material as you'd like.
Neither becomes dangerous until put into practice by a
person.
Source code can be used to create a running program. It is
also used to communicate ideas (pick up a copy of DDJ).
Although it is clear that source code on diskette is intended
to be interpreted (or compiled - the difference is and has
always been irrelevant), it is silly to outlaw the diskette
and allow the paper when the conversion from one to the other
is trivial.
Lulu of the lotus-eaters
: In article <4l9qkr$5...@bronze.coil.com>, ebr...@coil.com (Jim Ebright) wrote:
: > It is interesting (but irrelevant) that Sternlight made his 'she will
: > be reversed' statement without having read the decision :)
: > to be dismissed... no determination of the actual merits were made.
: The decision is a major precedent that source code=speech.
Well, the Sternlight-bot is almost up to the Turing-test (they *do* have
some mighty fine programmers at the NSA). But he's still mighty confused
about the meaning of precedent. While it's unfortunately quite possible
that the 9th Circuit or the Supremes will someday decide that sourcee
code isn't speech, the mere ruling that Bernstein's case has sufficient
merits not to dismiss is hardly binding upon the substantative rulings of
even the 9th Circuit. In other words, as much as I agree with Judge
Patel's belief about source code, it's NOT precedent.
Yours, Lulu...
--
quilty@ _/_/_/_/_/_/_/ THIS MESSAGE WAS BROUGHT TO YOU BY:_/_/_/_/ v i
philos. _/_/ Postmodern Enterprises _/_/ s r
umass. _/_/ MAKERS OF CHAOS.... _/_/ i u
edu _/_/_/_/_/ LOOK FOR IT IN A NEIGHBORHOOD NEAR YOU_/_/_/_/_/ g s
Vernon Schryver
> ...
>And Judge Richey said: (sorry, it's a pain with PICO to put the ">" in
>front of the lines :) ...
> ...
>The rationale for a regulation determines the level of scrutiny to be
>applied to said regulation; if the regulation is content-based, the
>regulation will be "presumptively invalid," whereas if the regulation is
>content-neutral, then the government may justify the regulation if certain
>other criteria are met. Id. at 2542-54. These additional criteria --
> ...
How does the court determine whether regulations are "content-netural"
or "content-based"? If a regulation allows the export of other diskettes,
for example blank diskettes or diskettes containing the collected works
of W.Shakespear, but not the export of the Karn diskette, how are they
not "content-based"? What about FTP and other electronic forms of
distribution? If a regulation allows some some FTP sites to contain,
say archives of Usenet political grous, how can it not allow FTP sites
to contain cryptographic source?
Vernon Schryver v...@rhyolite.com
Charlie Mingo
the lotus-eaters) wrote:
> the mere ruling that Bernstein's case has sufficient
> merits not to dismiss is hardly binding upon the substantative rulings of
> even the 9th Circuit. In other words, as much as I agree with Judge
> Patel's belief about source code, it's NOT precedent.
The decision does contain a substantive holding that source code is speech
for first amendment purposes, and it is binding on other federal district
courts in the Northern District of California, so it is indeed a
precedent.
> ...the mere ruling that Bernstein's case has sufficient
> merits not to dismiss...
It's not as "mere" as you think. In a case where there are very few facts
in dispute, the outcome will be largely determined by the choice of which
legal standard to apply.
In this case, Judge Patel has left the government with the task up
defending export controls as a prior restraint, under the impossibly
strict standards of the Pentagon Papers case. As a practical matter, the
government has already lost at the district court level.
Charlie Mingo
(Vernon Schryver) wrote:
> How does the court determine whether regulations are "content-netural"
> or "content-based"? If a regulation allows the export of other diskettes,
> for example blank diskettes or diskettes containing the collected works
> of W.Shakespear, but not the export of the Karn diskette, how are they
> not "content-based"?
I think Judge Richie got confused, and thought it was a case about the
export of encrypted text, instead of a case about the export of a
particular text that could be used to encrypt.
: Pursuant to extensive First Amendment jurisprudence, the government's
: rationale for the regulation controls, regardless of the form of the
: speech or expression regulated. ....Accordingly, it is unnecessary
: for the Court to make any finding regarding the nature of the matter
: contained on the Karn diskette.
Since the government's intent was to prevent the spread of encryption
technology overseas (which he deems to be "content neutral"), Judge Richie
seems to believe that any action taken to achieve that goal is inherently
insulated from First Amendment analysis.
As there are no cases to support this remarkable position, he is reduced
to citing cases involving "reasonable time, place and manner restrictions"
on speech, although this case involves an absolute ban and is
content-based.
Under his rationale, the government could also ban any public discussion
of crypto within the US, so it appears he has simply read the First
Amendment out of the constitution. It seems to be a rather careless
opinion.
Charlie Mingo
(David Sternlight) wrote:
> Some fancy begging the question here. The point isn't that source code can
> also be used to communicate ideas. Of course it can. The point is that its
> primary purpose is as a functional object, not language, to tailor a
> machine (computer) to perform a set of operations.
If source code can be used to communicate ideas, then it is "speech." The
fact that it might also be used for some other purpose doesn't render it
any less speech.
> That crucial distinction is what produced the flag-burning decision. There
> it was the opposite situation--the primary purpose was to communicate
> political expression, i.e. speech, and not to raise a piece of cloth to a
> particular temperature.
I don't think you read that decision. The crucial fact to the Court was
that the government was only banning the burning of Old Glory, not any
piece of fabric. That meant that the law against flag-burning was not
content-neutral, because the government was trying to suppress (what it
percieved to be) the expression of a certain idea.
The distinction is important, because it means the government cannot ban
flag-desecration, even where there is apparently no political motivation
by the speaker (eg, company makes flag boxer-shorts to make money,
customer wears flag shorts where no one can see them). This is in
contrast to the freedom of religion cases, where the government only has
to respect "sincere" religious beliefs.
> In contrast, the primary purpose of crypto source
> code is to encrypt traffic, not to express political ideas.
You mean the author's purpose? Don't you have to ASK the author to decide
what his purpose is? If the author is a mathematician who studies
crypto, his purpose may well be to show a neat new way he has discovered
to perform encryption.
Of course, the author's purpose is irrelevent if the government's purpose
is not content-neutral (as with flag burning and crypto).
> A technical paper (that doesn't contain source code) cannot
> be fed into a computer to encrypt traffic. It is primarily a means of
> expressing ideas. Source code can. It is primarily a process engine.
A semantic argument. Suppose I publish source code which contains minor
typographical errors. That can't be fed into a machine either without
being editied by a human.
> The difference is that the source code automatically produces the virus
> which does it's virus thing when fed to the right machine. In effect the
> source code IS the virus, lacking only the machine to execute it.
The source code for a virus does not execute itself when fed into "the
right machine". Some human has to compile it, and then some human has to
introduce it to another machine not under his control for there to be an
illegal act.
> This is an important distinction. The map is not the territory. The plans
> are not the bomb. But the source code IS, for all practical purposes, the
> virus.
The plans for a bomb must be turned into a bomb by the intervention of a
human, and source code must be turned into object code by the intervention
of a human.
You could just as easily argue that the plans for a bomb were a bomb, and
that possession of plans was equivalent to possessing a bomb, and try to
outlaw bomb manuals. But the courts have already rejected such puerile
attmepts to smudge the speech/act dictinction (eg, The Progressive, Inc vs
US).
> In contrast, there's no such thing as a machine executing the plans (paper
> documents) for a bomb and blowing itself up.
No one has bothered to build one, but they aren't technically impossible.
It seems that your speech/act distinction is rather heavily dependnent on
extraneous and irrelevent considerations.
> Let me put it another way: in today's practical world the plans for a bomb
> have to be processed via human intelligence to produce a bomb, which then
> must be planted and triggered.
What about the planting and triggering of a computer virus? You are just
ignoring the human activity required to develop computer software.
One has to buy a computer, set it up, buy a compiler, insert the
source-code disk, analyze and edit the source code to make it usable by
your compiler, and then compile it.
> The source code works automatically. Read
> it into an interpreter and it wipes your hard disk.
The second sentence describes an act performed by a human, which
contradicts the first sentence's use of "automatically".
Roger Espel Llima
David Sternlight <da...@sternlight.com> wrote:
>In article <0P4omD...@tanda.on.ca>, ma...@tanda.on.ca (Marc Thibault) wrote:
>
>> da...@sternlight.com (David Sternlight) writes:
>>
>> > Constitutional protection for source code. But unlike most speech, source
>> > code when used as designed can cause direct consequential physical damage,
>> > lock-stepped to the source code itself. The most obvious example is the
>> > source code for a computer virus.
>>
>> The only difference between a text description, mathematical
>> formula, pseudo-code, and source code is the ease with which
>> it is compiled into object code and run. For any unambiguous
>> description, a compiler either exists or can be constructed.
>> It seems to me that Patel has recognised this lack of
>> distinction between a concise textual description and "source
>> code".
>
>Some fancy begging the question here. The point isn't that source code can
>also be used to communicate ideas. Of course it can. The point is that its
>primary purpose is as a functional object, not language, to tailor a
>machine (computer) to perform a set of operations. In that sense it is no
>different than a black box that directly causes tick-tick-tick-boom.
So, you're telling us that this might not be speech?
<< -quote-
First, we'll ask the user for the key. Then ask for the plaintext. We
call delta the value 38. Then we store the 1st element of the
key into k0, put the second element of the key in k1, put the 3rd
element of the key into k2, and put the fourth element of the key into
k3. Now, let i be 1, and let l be the length of the plaintext.
>> -end quote-
Well, here's a quick shot at a compiler for it, which runs that little
piece of speech automatically on a computer, without more human
intervention than it takes to run your average binary:
-----------------------------------------------------------------------
#!/usr/local/bin/perl
# Plain English Compiler - Roger Espel Llima (21st Apr 1996)
# This program is in the Public Domain.
# Description:
#
# Takes a description of an algorithm in a _very specific restricted_
# sub-language of plain English which is still readable and means the same
# to the human than it does to the compiler, compiles it into intermediary
# perl code and evaluates it.
# This is *extremely* primitive, was put out in a few hours of hacking,
# and lacks the most basic support for data scopes, expressions, param
# passing, error handling, etc... but it achieves the goal of being
# *expressive* (i.e just about any algorithm *can* be translated into it,
# in a more or less convoluted and awkward way) and *readable* and meaningful
# in English. The key point being, it's the *same* English words that you
# understand when reading something written for this compiler that the
# compiler is understanding too, in a simplified way, but basically with
# the same semantics.
# The sole intent of this is to prove in practice that there *cannot* be
# a formal distinction between software and speech. Between OCR and (a
# better version of) this, a perfectly readable but carefully crafted
# written paper describing an algorithm can be evaluated on a computer
# without more human intervention than it takes to execute traditional
# compiled code from magnetic media. In particular, this applies to
# cryptographic algorithms.
# Note that the compiler itself is general-purpose and knows *nothing*
# of cryptography specifically. Certain common cryptographic algorithms
# would be hard (although still possible) to write for this compiler because
# they need support for long integers. It would be relatively easy to
# directly add general supoprt for these in the compiler, without changing
# anything to the concept of it.
# An example of "source code" the compiler would understand:
# (actually the beginning of the description of the TEA cryptographic
# algorithm ; I haven't included the functional parts of it to avoid
# export problems).
# ------------------ begin understood 'source' code -------------------
# First, we'll ask the user for the key. Then ask for the plaintext. We
# call delta the value 2654435769. Then we store the 1st element of the
# key into k0, put the second element of the key in k1, put the 3rd
# element of the key into k2, and put the fourth element of the key into
# k3. Now, let i be 1, and let l be the length of the plaintext. As long
# as i isn't greater than l, put the element of the plaintext indexed by i
# in y, add 1 to i, put the element of the plaintext indexed by i in z,
# add 1 to i again, and then do one encryption step, print out y and
# print out z.
#
# To do one encryption step, we first set n to 32, and set sum to 0. Then,
# as long as n is greater than 0, we substract 1 from n, add delta to
# sum, set t1 to be z shifted to the left by 4 bits, and then ...
# [ rest snipped ]
# -------------------- 'end understood source code' -------------------
# Description of the recognized language:
# The algorithm is to be described in a set of English sentences constructed
# with the following structure:
#
# . a number of adverbs like 'now', 'again', 'finally', 'too', can be
# inserted wherever a verb would be expected, for readability. they
# are ignored by the parser.
#
# . a sentence stops at a period, and is made of one or more statement
# separated by commas or semicolons.
#
# . a statement starts with a verb, optionally preceded by "we" or
# "we'll" for readability.
#
# . for conditionals and loops, the implicit block ranges from the ","
# after the conditional expression to the end of the sentence. nested
# blocks are not supported, use procedures for this.
#
# . the first sentences up to a declaration starting with 'to' are the
# main program; they are optionally followed by a number of explanations
# (procedure declarations) defined by the 'to' statement:
# to <procedure name, possibly more than one word>, <description>
# the implicit end of a procedure is the end of the source or the
# next encountered procedure definition. this is consistent with
# the intuitive meaning of the sentences.
# . a procedure is called by starting a sentence with 'do', and the
# procedure name is the rest of the statement.
# . a <name> is any string that is not a common word; starts with a letter.
# . a <number> is a number in decimal notation.
# . a <value> is a <name> or a <number>
# . an <ordinal> is either "first", "second", "third", "fourth" or a
# number followed by 'st', 'nd', 'rd, or 'th'.
# . a <term> is either a <value> or one of :
# <value> shifted [to the] left|right by <n> [bits]
# the <ordinal> element of <name>
# the element of <name> indexed by <value>
# the length of <name>
# . a <condition> is one of:
# <value> is|isn't greater|smaller than <value>
# <value> is|isn't equal to <value>
# <value> equals <value>
# <value> doesn't equal <value>
# the recognized statement forms are:
# ask [the user] for [the value(s) [of]] <name>
# (it expects a list of numbers separated by commas, which goes
# into an array, to be retrived with the 'indexed by' constructions)
# call <name> [the value [of]] <term>
# store|put <term> into <name>
# let <name> be <term>
# set <name> to be <term>
# as long as <condition>, blah, blah, blah.
# while <condition>, blah, blah, blah.
# if <condition> blah, blah, blah.
# add <value> to <name>
# substract <value> from <name>
# multiply <name> by <value>
# divide <name> by <value>
# take <name> modulo <value>
# xor <name> by <value>
# binary and <name> by <value>
# binary or <name> by <value>
# print out <value>
# do <procedure>
# to <procedure> blah blah blah...
# ------------------------------------------------------------------------
# warning - there are probably bugs left.
# the compiler:
# if we were given a -d, run in debug mode -> show the compiled code
# instead of evaluating it
$ARGV[0] eq '-d' and $debug=1;
# read the text, separate words, ignore some
undef $/;
chomp($s = <STDIN>);
$/ = "\n";
$s = " ".$s;
$s =~ tr/A-Z;/a-z,/;
$s =~ s/([.,])/ $1 /sg;
$s =~ tr/#//d;
$s =~ s/\band\b/ , /sg;
$s =~ s/(\bwe\'ll\b)|(\bwe\b)|(\bthen\b)|(\bfinally\b)|(\bnow\b)/ /sg;
$s =~ s/(\bagain\b)|(\btoo\b)/ /sg;
$s =~ s/( ,)+/ ,/sg;
$s =~ s/\s+/ /sg;
$s .= " ";
# error handling is beyond primitive, but it wasn't really the point
# of it all.
sub abort {
my $n = shift;
print "I don't understand '$n'\n";
exit 0;
}
# a few handy parsing routines
sub parse_name {
my $n = shift;
return $n if $n =~ /^\w\S*$/;
abort;
}
sub parse_val {
my $n = shift;
return $n if $n =~ /^[-.\d]+$/;
return '$'.$n if $n =~ /^\w\S*$/;
abort;
}
sub parse_ordinal {
my $n = shift;
return 1 if $n eq 'first';
return 2 if $n eq 'second';
return 3 if $n eq 'third';
return 4 if $n eq 'fourth';
# could add a few more
if ($n =~ /^\d+/) {
return $& if $' eq 'st' || $' eq 'nd' || $' eq 'rd' || $' eq 'th';
}
abort;
}
# reads a <term>
sub parse_term {
my $n = shift;
$n =~ s/^the //;
return parse_val($n) unless $n =~ /element / || $n =~ /^length / ||
$n =~ /shifted / || $n =~ /indexed/;
return '(' . &parse_val($1) . '<<' . &parse_val($2) . ')'
if $n =~ /^(\S+) shifted (?:to the )?left by (\S+)(?: bits)\s*$/;
return '(' . &parse_val($1) . '>>' . &parse_val($2) . ')'
if $n =~ /^(\S+) shifted (?:to the )?right by (\S+)(?: bits)\s*$/;
return '$#'.&parse_name($1) if $n =~ /^length of (?:the )?(\S+)\s*$/;
return '$#'.&parse_name($1) if $n =~ /^length of (?:the )?(\S+)\s*$/;
return '$' . $2 . '[' . &parse_ordinal($1) . ']'
if $n =~ /^(\S+) element of (?:the )?(\S+)\s*$/;
return '$' . $1 . '[' . &parse_val($2) . ']'
if $n =~ /^element of (?:the )?(\S+) indexed by (?:the )?(\S+)\s*$/;
abort;
}
# reads a <conditional>
sub parse_cond {
my $s = shift;
$s =~ s/^the //;
return &parse_val($1) . ">" . &parse_val($2)
if $s =~ /^(\S+) is greater than (\S+) $/;
return &parse_val($1) . "<=" . &parse_val($2)
if $s =~ /^(\S+) isn\'t greater than (\S+) $/;
return &parse_val($1) . "<" . &parse_val($2)
if $s =~ /^(\S+) is smaller than (\S+) $/;
return &parse_val($1) . ">=" . &parse_val($2)
if $s =~ /^(\S+) isn\'t smaller than (\S+) $/;
return &parse_val($1) . "==" . &parse_val($2)
if $s =~ /^(\S+) equals (\S+) $/ ||
$s =~ /^(\S+) is equal to (\S+) $/;
return &parse_val($1) . "!=" . &parse_val($2)
if $s =~ /^(\S+) doesn\'t equal (\S+) $/ ||
$s =~ /^(\S+) isn't equal to (\S+) $/;
abort;
}
# define &input in the compiled code, so it knows how to input
# lists of numbers
$code = 'sub input {
$_ = <STDIN>;
s/\,/ /g;
s/^ +//;
my (@s) = (0, split(/ +/, $_));
return @s;
}
';
# compile a statement
sub parse_statement {
$s =~ s/^ +//;
1 while $s =~ s/^\, // || $s =~ s/^\. // || $s =~ s/^first //;
if
($s =~ /^ask (?:the )?(?:user )?for (?:the )?(?:value )?(?:of )?(\S+) /)
{
$s = $';
my ($n) = &parse_name($1);
$code .= "print '$n? '; \@". $n . "=&input;\n";
} elsif
($s =~ /^call (\S+) (?:the )?(?:value (?:of )?)?([^.,]+) / ||
$s =~ /^set (\S+) to (?:be )?(?:the )?(?:value (?:of )?)?([^.,]+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '=' . &parse_term($2).";\n";
} elsif
($s =~ /^store (?:the )?(?:value (?:of )?)?([^.,]+) in(?:to)? (\S+) / ||
$s =~ /^put (?:the )?(?:value (?:of )?)?([^.,]+) in(?:to)? (\S+) /)
{
$s = $';
$code .= '$'.&parse_name($2) . '=' . &parse_term($1).";\n";
} elsif ($s =~ /^let (\S+) be (?:the )?(?:value (?:of )?)?([^.,]+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '=' . &parse_term($2).";\n";
} elsif ($s =~ /^add (?:the )?(?:value (?:of )?)?(\S+) to (\S+) /) {
$s = $';
$code .= '$'.&parse_name($2) . '+=' . &parse_val($1).";\n";
} elsif ($s =~ /^substract (?:the )?(?:value (?:of )?)?(\S+) from (\S+) /) {
$s = $';
$code .= '$'.&parse_name($2) . '-=' . &parse_val($1).";\n";
} elsif ($s =~ /^multiply (\S+) by (?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '*=' . &parse_val($2).";\n";
} elsif ($s =~ /^divide (\S+) by (?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '/=' . &parse_val($2).";\n";
} elsif ($s =~ /^take (\S+) modulo (?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '%=' . &parse_val($2).";\n";
} elsif ($s =~ /^xor (\S+) by (?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '^=' . &parse_val($2).";\n";
} elsif ($s =~ /^binary or (\S+) by (?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '|=' . &parse_val($2).";\n";
} elsif ($s =~ /^binary \, (\S+) by (?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= '$'.&parse_name($1) . '&=' . &parse_val($2).";\n";
} elsif ($s =~ /^print (?:out )?(?:the )?(?:value (?:of )?)?(\S+) /) {
$s = $';
$code .= 'print ' . &parse_val($1) . ', "\n";' . "\n";
} elsif ($s =~ /^if ([^,.]+)\, /) {
$s = ", ".$';
abort("nested blocks") if $inblock;
$inblock = 1;
$code .= 'if (' . &parse_cond($1) . ") {\n";
} elsif ($s =~ /^while ([^,.]+)\, / ||
$s =~ /^as long as ([^,.]+)\, /) {
$s = ", ".$';
abort("nested blocks") if $inblock;
$inblock = 1;
$code .= 'while (' . &parse_cond($1) . ") {\n";
} elsif ($s =~ /^do ([^,.]+)/) {
$s = $';
my ($p) = $1;
$p =~ s/\s//g;
$code .= '&' . $p . ";\n";
} elsif ($s =~ /^to (?:do )?([^,.]+)/) {
$s = $';
my ($p) = $1;
$p =~ s/\s//g;
$code .= "}\n" if $insub;
$code .= "sub $p {\n";
$insub = 1;
}
if ($s =~ s/^\. // || $s =~ /^\s*$/) {
$code .= "}\n", $inblock = '' if $inblock;
} elsif ($s !~ s/^\, //) {
abort($s);
}
}
# main loop: parse statements until we're done.
while ($s ne '') {
parse_statement;
}
# close a sub if we were in one.
$code .= "}\n" if $insub;
if ($debug) {
print $code, "\n";
} else {
# do it
eval $code;
# and complain if something went wrong.
print "error evaluating code.\n" if $@;
}
__END__
-Roger
--
#!/usr/local/bin/perl # e-mail: roger.es...@ens.fr
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,s^$^&E["+0,/0%&- [y*-y&\$+!=Pt:S=QtUSQM%11-RGG444F"##F,/\$Gz)2"/&zz,+F%1*)=^,
s@$@Q SF=QSUUt=PSF:t=OSJ>=NSL>PN/,\$"/F"0-")F))&*yX"+0F#/=NtUUGNtUUG=OtGPtG=@,
y,= :-|"-9,\n "-|, ,s,&,\\"\\,g,s,;,/"/,g,s,",===,g,s,(\d),' 'x$1,eg,print $_;
Adam J. Thornton
ask it in these two public fora as well, and anyone who desires may feel
free to jump in:
How do you feel about the as-yet unchallenged legality of exporting the
paper book _PGP: Internals_ (or whatever it's actually called--you know,
the big one from MIT Press). All this book is is the PGP 2.6.2 source code
and an introduction that describes which scanner+OCR packages will
transform it from a paper to an electrical medium.
This book is pretty clearly source code--is it speech? It's only
marginally less machine-readable than the same book represented in ASCII
text files called, for example, MD5.C, RSAGEN.C, and so on. And yet, no
challenge has been mounted to this book's export apparently--as far as I
can tell--solely because it's on paper.
Do you find this a reasonable distinction to make? Or should the courts in
fact rule that this book is nonexportable, as it is clearly designed for
easy rendition into machine-readable form and thenceforth for compilation
into executable programs which encrypt data?
Adam
--
ad...@phoenix.princeton.edu | Viva HEGGA! | Save the choad! | 64,928 | Fnord
"Double integral is also the shape of lovers curled asleep":Pynchon | Linux
Thanks for letting me rearrange the chemicals in your head. | Team OS/2
You can have my PGP passphrase when you pry it from my cold, dead brain.
William Unruh
>How does the court determine whether regulations are "content-netural"
>or "content-based"? If a regulation allows the export of other diskettes,
I think it is decision by blatant assertion. I sure cannot figure out
how a regulation which singles out a single class of programs can be
content neutral either.
--
Bill Unruh
un...@physics.ubc.ca
David Sternlight
Sommerfeld) wrote:
> In article <david-19049...@nntp.netcom.com>,
> David Sternlight <da...@sternlight.com> wrote:
> >Having smudged the distinction between human language which naturally
> >evolved for direct communication between people, and notation which
> >amounts to functional instruction to devices, Patel then makes the leap to
> >'notation=language=speech'. From that she then concludes that there's a
> >colorable Constitutional claim here, and what's more, decides it. Make no
> >mistake about it, her ruling that source code is speech IS a
> >Constitutional determination as important as any subsequent determination
> >that might be then made that this particular speech is protected against
> >ITAR controls.
>
> David,
>
> The following quotes document that for over ten years, some computer
> scientists have considered source code to be a way for programmers to
> communicate with each other -- much more than merely a way for a
> programmer to tell a computer how to do something.
Sure, and examining hardware is a way for hardware engineers to
communication. That still doesn't make hardware natural language. Same for
electronic circuit diagrams. You can read articles every day in the IEEE
publications with circuit diagrams. They're still notation, not speech.
>
> In my work as a software engineer working on very large systems, I
> spend far more time reading source code written by others than writing
> my own source code. In any non-trivial system, source code must be
> written to be *read* by other programmers.
And carpenters spend a lot of time looking at plans.
Doctors spend a lot of time looking at x-rays.
etc. etc.
You are also smearing distinctions--you are confusing "communication" as
it is generally understood, with "speech" as it is understood by the law
in the Constitution.
In this environment, distinctions are everything. Without precise
distinctions, we'd drown.
In the eskimo's environment there are over 80 words for snow, including
one for the yellow kind you shouldn't eat. We have about three.
David
David Sternlight
> da...@sternlight.com (David Sternlight) writes:
> > >
> > > The plans for a baseball bat, when used as designed, can cause
> > > direct consequential physical damage.
> >
> > No. Someone has to make and then swing the bat. Source code is different.
> > See above.
>
> That's precisely the point. Someone has to feed the source
> code to an interpreter. That's easier than making a bat, but
> not materially different. If the bat design is on a piece-part
> tape and I feed it to an NC mill, it will interpret the design
> and output a bat-object in as heavy a material as you'd like.
> Neither becomes dangerous until put into practice by a
> person.
>
> Source code can be used to create a running program. It is
> also used to communicate ideas (pick up a copy of DDJ).
> Although it is clear that source code on diskette is intended
> to be interpreted (or compiled - the difference is and has
> always been irrelevant), it is silly to outlaw the diskette
> and allow the paper when the conversion from one to the other
> is trivial.
>
For the purposes of the immediate sub-discussion (writing something vs.
using it), he's not being refused a license for the source code but for
its export.
For the purposes of the wider discussion, you fail to recognize the nature
of the general-purpose computer. In the case of a baseball bat, the plans
are used by a human to perform actions to make a bat which is used by a
human to hit someone. In the case of source code for a virus it is used
directly by a computer-interpreter to erase your hard disk. Thus it is
more directly an element of the instrument of destruction than the plans
for the bat. In fact, it is more comparable to the bat than the plans.
Don't let "physicalness" confuse you in a world of general purpose
computers.
Putting it another way, if you give a human the plans, he can't use them
to hit you over the head (well, unless they're pretty big and rolled up).
He can only use them to make a bat, which itself just sits there. But if
you load the code, the computer _can_ use it to erase your hard disk.
In the metaphor of tool-making and tool-using, writing the code is tool
making. The code is the tool. The computer uses the code to commit the
act.
Writing the plans for the baseball bat is one step further removed. The
baseball bat is the tool. A person uses the baseball bat to commit the
act. Thus the code is, in the above analogy, comparable to the baseball
bat, not the plans for the baseball bat. In this case the medium is NOT
the message.
Again, that's my analysis. Others may construct different analyses. When
it comes to logic, I'll respond. When it comes to opinion, yours is as
valid as mine until a court rules further or doesn't.
David
William Unruh
>some mighty fine programmers at the NSA). But he's still mighty confused
>about the meaning of precedent. While it's unfortunately quite possible
>that the 9th Circuit or the Supremes will someday decide that sourcee
>even the 9th Circuit. In other words, as much as I agree with Judge
>Patel's belief about source code, it's NOT precedent.
OK, I clearly need some legal education here. The judge specifically
stated that there were only two substantive findings that she made. One
was that the case could be heard, and the other that source code is
speech. Now you say that while the first is binding, the second is not.
I just wonder what the legal status is of this second substand\tive
finding, and why it is not of the same status as her first finding,
which I assume IS binding on the courts. Note that the issue is not a
random issue, but was part of the substance of the claim that the issue
was not hearable. It would seem to me that her finding of law crucial to
her decision is a precedent, and is binding to the 9th circuit. Please
educate me.
--
Bill Unruh
un...@physics.ubc.ca
William Unruh
>Sure, and examining hardware is a way for hardware engineers to
>communication. That still doesn't make hardware natural language. Same for
>electronic circuit diagrams. You can read articles every day in the IEEE
>publications with circuit diagrams. They're still notation, not speech.
For first ammendment purposes they apparently are speech. Remember that
Piano rolls (which I sure could not "read") are apparently "speech", as
are mathematical formula which you probably could not read.
>And carpenters spend a lot of time looking at plans.
>Doctors spend a lot of time looking at x-rays.
And please cite a case where these were declared not to be speech by the
courts. As a legal arguement, you not only have to present analogies to
software, but also show that in these analogous situations, the courts
declared tehm not to be speech. I will for the sake of arguement accept
your analogies. But where is the crucial second step? Or is it "I
cannot imagine calling them "speech" and thus the courts could not do
so."
--
Bill Unruh
un...@physics.ubc.ca
William Unruh
>Again, that's my analysis. Others may construct different analyses. When
>it comes to logic, I'll respond. When it comes to opinion, yours is as
>valid as mine until a court rules further or doesn't.
A court has ruled further. A court has ruled that software=speech for
First ammendmant purposes. Until that decision is repealed by a higher
court, that in your language is the law of the land (at least in Calif)
and your opinion is irrelevant and false. It is you who has been
erecting hypotheticals (the decision will be overturned, the decision
will cause Congress to erect terrible laws in an effort to control
viruses, ...). It is you who has been parading his opinions before us in
direct contrast to the decision by the court.
--
Bill Unruh
un...@physics.ubc.ca
Irclark
> Source code can be used to create a running program. It is
> also used to communicate ideas (pick up a copy of DDJ).
> Although it is clear that source code on diskette is intended
> to be interpreted (or compiled - the difference is and has
> always been irrelevant), it is silly to outlaw the diskette
> and allow the paper when the conversion from one to the other
> is trivial.
>
The original post Marc is replying to has not reached my server, but
I believe Marc has captured the heart of the arguments. In the high
profile cases we have seen so far (The Karn Case, the lack of a case
regrading MIT's PGP book, and the current case) the government seems to
be saying that speech is not speech when it's on a machine readable
medium.
This seems to be a particularly weak argument when the opposition
is making a First Amendment case. If indeed national security is at
stake, I hope the government comes up with a winning argument. The
current position is silly. It also makes it appear that the government
doesn't care what means is used to enforce ITAR as long as they
are successful.
Hopefully, the government will now have a chance to present arguments that
ITAR is constitutional. If they are successful, then we'll get to keep ITAR
and our First Amendment rights.
Isaac
William Unruh
>Hopefully, the government will now have a chance to present arguments that
>ITAR is constitutional. If they are successful, then we'll get to keep ITAR
>and our First Amendment rights.
There is no question that ITAR is constitutional. Noone is disputing
that. The queston is whether or not certain small sections of ITAR are
costitutional. It is clear that even those sections could be written so
as to be clearly constitutional even if source code is upheld as speech.
HOwever it would have to be much more tightly written. The current
situation in which speech is licensable or not depending on whether it
is in the form of carbon black on plant fibres or rust on plastic is
silly. That the current broad, vague form of certain sections of ITAR
should be struck down is I believe no bad thing. If the government
really believes that there is some compelling National Security reason
to restrict the export of crypto (while leaving it freely available
inside the country), then they should write the law to address
specifically that compelling reason. Remember ITAR as it stands
regarding crypto was written at a time when the only crypto was Gov't
crypto, and when most crypto was secret.
--
Bill Unruh
un...@physics.ubc.ca
Bill Sommerfeld
> The following quotes document that for over ten years, some computer
> scientists have considered source code to be a way for programmers to
> communicate with each other -- much more than merely a way for a
> programmer to tell a computer how to do something.
Sure, and examining hardware is a way for hardware engineers to
communication[sic]. That still doesn't make hardware natural
language. Same for electronic circuit diagrams. You can read
articles every day in the IEEE publications with circuit
diagrams. They're still notation, not speech.
You seem to be assuming that "constitutionally protected speech"
implies "natural language", when Patel's ruling cites a number of
examples indicating otherwise (sheet music, piano rolls, films, etc.).
.
I repeat the crucial part of the quote from "Structure and
Interpretation of Computer Programs":
"... a computer language is not just a way of getting a computer to
perform operations, but rather [is] a novel formal medium for
expressing ideas about methodology".
(from the preface of "Structure and Interpretation of Computer
Programs," by Harold Abelson & Gerald Jay Sussman, with Julie
Sussman; MIT Press 1985, ISBN 0-262-01077-1)
And, by the way, what makes you think that circuit diagrams wouldn't
be considered a form of speech in the right circumstances? They are
substantially more communicative that other non-verbal actions whch
courts have ruled contain elements of protected speech, such as exotic
dancing, flag burning, and cross burning. They certainly can be
copyrighted...
- Bill
--
"When an honest man has to retain a legal professional to remain in
compliance with the law, an injustice has taken place".
- attributed to Harold Feld
--
"When an honest man has to retain a legal professional to remain in
compliance with the law, an injustice has taken place".
- attributed to Harold Feld
Bill Sommerfeld
In contrast, the primary purpose of crypto source
code is to encrypt traffic, not to express political ideas.
I recall reading an interview with Phil Zimmerman in which he stated
that he wrote PGP in order to make a political protest. Specifically,
he wrote PGP 1.x in direct response to the original, failed "sense of
congress resolution" regarding wiretap access back a few years ago.
This sounds like the expression of political ideas; the very act of
creating PGP is a political statement in the context of the current
policy debade over cryptography.
Indeed, I'd say that very the act of *using* PGP is also a political
statement in the context of the current policy debate over
cryptography.
Peter Lipp
> The best line in the judgement for me was
Right. Congratulations that you have such intelligent, humourous
judges. At least there is hope now.
Peter
Peter Lipp, Dept. Of Applied Information Processing
University of Technology Graz, Austria
pl...@iaik.tu-graz.ac.at --- +43 316 873 5513
http://www.iaik.tu-graz.ac.at
Christopher Davis
DS> Some fancy begging the question here. The point isn't that source
DS> code can also be used to communicate ideas. Of course it can. The
DS> point is that its primary purpose is as a functional object, not
DS> language, to tailor a machine (computer) to perform a set of
DS> operations. In that sense it is no different than a black box that
DS> directly causes tick-tick-tick-boom.
Judge Patel directly mentions player piano rolls, which are functional
objects (when combined with a player piano, of course ;-) that tailor a
machine to perform a set of operations.
I certainly can't read player piano object code (heck, I can't even read
enough music to understand the source code :-) but at least one judge
finds it, *quite unequivocally*, to be speech.
Too bad the Cauzin SoftStrip (an old Apple II gimmick) is no longer
around; I'd love to see the adjudication on a case that involved shipping
the equivalent of the PGP source code book with Cauzin strips printed on
every page.
--
Christopher Davis * <c...@kei.com> * <URL: http://www.kei.com/homepages/ckd/ >
"As this court has noted above, cryptographic source code is speech."
--Judge Marilyn Patel, U.S. District Court, Northern District of California
(in Bernstein v. U.S. Department of State)
David Sternlight
(Adam J. Thornton) wrote:
> I have a question for David Sternlight, but it's an open one, and so I'll
> ask it in these two public fora as well, and anyone who desires may feel
> free to jump in:
>
> How do you feel about the as-yet unchallenged legality of exporting the
> paper book _PGP: Internals_ (or whatever it's actually called--you know,
> the big one from MIT Press). All this book is is the PGP 2.6.2 source code
> and an introduction that describes which scanner+OCR packages will
> transform it from a paper to an electrical medium.
>
> This book is pretty clearly source code--is it speech? It's only
> marginally less machine-readable than the same book represented in ASCII
> text files called, for example, MD5.C, RSAGEN.C, and so on. And yet, no
> challenge has been mounted to this book's export apparently--as far as I
> can tell--solely because it's on paper.
>
> Do you find this a reasonable distinction to make? Or should the courts in
> fact rule that this book is nonexportable, as it is clearly designed for
> easy rendition into machine-readable form and thenceforth for compilation
> into executable programs which encrypt data?
Since it's sub judice, there's little point in commenting. Obviously in
the age of OCR, it's machine-readable source code.
Is it speech as well. I don't think so; others may, and the courts will decide.
David
Phil Karn
> >Some fancy begging the question here. The point isn't that source code can
> >also be used to communicate ideas. Of course it can. The point is that its
> >primary purpose is as a functional object, not language, to tailor a
> >machine (computer) to perform a set of operations. In that sense it is no
> >different than a black box that directly causes tick-tick-tick-boom.
This was the government's contention in both my case and Bernstein's, and it's
precisely this contention that Patel rejects in some of the clearest reasoning
I've recently seen in a judicial opinion (not that I've seen a lot of that lately!)
Here's the relevant part of the opinion:
Defendants argue in their reply that a description of software in
English informs the intellect but source code actually allows someone to
encrypt data. 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. Its support in First
Amendment law is nonexistent.
Couldn't have said it better myself.
Phil
Iolo Davidson
da...@sternlight.com "David Sternlight" writes:
> Since it's sub judice, there's little point in commenting.
This is the guy who declared (in alt.security.pgp) that OJ
Simpson was guilty before the defence had even presented
their case.
Maybe that taught him something?
--
THE CANNONEERS USED TIN SHEARS
WITH HAIRY EARS UNTIL THEY FOUND
ON WIRY WHISKERS Burma-Shave
David Sternlight
somme...@orchard.medford.ma.us (Bill Sommerfeld) wrote:
> In article <david-21049...@nntp.netcom.com> da...@sternlight.com
(David Sternlight) writes:
>
> > The following quotes document that for over ten years, some computer
> > scientists have considered source code to be a way for programmers to
> > communicate with each other -- much more than merely a way for a
> > programmer to tell a computer how to do something.
>
> Sure, and examining hardware is a way for hardware engineers to
> communication[sic]. That still doesn't make hardware natural
> language. Same for electronic circuit diagrams. You can read
> articles every day in the IEEE publications with circuit
> diagrams. They're still notation, not speech.
>
> You seem to be assuming that "constitutionally protected speech"
> implies "natural language", when Patel's ruling cites a number of
> examples indicating otherwise (sheet music, piano rolls, films, etc.).
Sheet music, piano rolls, films, etc. aren't Constitutionally protected
speech, generally speaking. It depends on whether you have permission to
do the speaking, under Article I Section 8 just after "post offices". In
fact in that sense, no form of "fixing" of ideas is Constitutionally
protected speech unless you are the first to fix.
>
> I repeat the crucial part of the quote from "Structure and
> Interpretation of Computer Programs":
>
> "... a computer language is not just a way of getting a computer to
> perform operations, but rather [is] a novel formal medium for
> expressing ideas about methodology".
>
> (from the preface of "Structure and Interpretation of Computer
> Programs," by Harold Abelson & Gerald Jay Sussman, with Julie
> Sussman; MIT Press 1985, ISBN 0-262-01077-1)
Right. Which court is that? I can vamp philosophically, too, but it has no
legal standing. And it won't be the first time I've disagreed with Hal
Abelson--in this case for his use of "rather" rather than "and". By the
way, if you want a citation that's not only a lot better and more general
than Abelson, but also is closely and axiomatically reasoned rather than
using proof by assertion, try "Laws of Form" by G. Spencer Brown, Julian
Press, 1972. It, too, has no legal standing. :-)
David
> - Bill
> --
> "When an honest man has to retain a legal professional to remain in
> compliance with the law, an injustice has taken place".
> - attributed to Harold Feld
> --
> "When an honest man has to retain a legal professional to remain in
> compliance with the law, an injustice has taken place".
> - attributed to Harold Feld
When an honest man has to repeat a three-line sig twice, careless editing
has taken place.
- attributed to Alfred E. Neuman
David Sternlight
Llima) wrote:
> >Some fancy begging the question here. The point isn't that source code can
> >also be used to communicate ideas. Of course it can. The point is that its
> >primary purpose is as a functional object, not language, to tailor a
> >machine (computer) to perform a set of operations. In that sense it is no
> >different than a black box that directly causes tick-tick-tick-boom.
>
>
> So, you're telling us that this might not be speech?
>
<example of English-language description of a crypto algorithm, followed
by a compiler for it, omitted>
That's a separate issue. The English-language description might be
exportable or it might not. Part of that question is being taken up with
respect to Phil Z's PGP source code textbook.
There are lots of possible outcomes. Congress could make a law regarding
that kind of speech, whose primary purpose was to communicate matter
classified as defense articles.
Before you rush to quote "Congress shall make no law ..." Congress has
made plenty of laws concerning what is generally thought to be speech,
under other powers in the Constitution, the Copyright laws for a start.
It takes more than a clever exception to upset a law. Laws aren't
syllogisms, and exceptions are what specific trials are for. You could
just as easily have argued that one might make a mathematical notation
compiler, cum OCR with a bit of AI thrown in, and thus the RSA
professional paper's export was a "refutation" of ITAR. The law has no
difficulty making operational distinctions and it had made one (until
Patel) between source code, and "speech" of a kind that's Constitutionally
protected.
As I've said in an earlier message in this news-reading session, we're
verging on pilpul (Talmudic disptation) here so this is a good point to
stop. You may have the last word.
(Clever work on the compiler, by the way. Needs work, though, before it
can take in the Accounting Principles Board regs and come out with a
bookkeeping program.)
David
Paul Rubin
David Sternlight <da...@sternlight.com> wrote:
>In article <4le5uv$m...@cnn.Princeton.EDU>, ad...@flagstaff.princeton.edu
>(Adam J. Thornton) wrote:
>> How do you feel about the as-yet unchallenged legality of exporting the
>> paper book _PGP: Internals_ (or whatever it's actually called--you know,
>> the big one from MIT Press). All this book is is the PGP 2.6.2 source code
>> and an introduction that describes which scanner+OCR packages will
>> transform it from a paper to an electrical medium.
>>
>> This book is pretty clearly source code--is it speech? It's only
>> marginally less machine-readable than the same book represented in ASCII
>> text files called, for example, MD5.C, RSAGEN.C, and so on. And yet, no
>> challenge has been mounted to this book's export apparently--as far as I
>> can tell--solely because it's on paper.
>
>the age of OCR, it's machine-readable source code.
>
>Is it speech as well. I don't think so; others may, and the courts will decide.
There is litigation going on about the PGP book? Is any more
info available?
Applied Cryptography also contains OCR-able source code listings, but
the State Dept. ruled that the book was not subject to their
jurisdiction since it is in the public domain under the ITAR definition.
Why is the PGP book different?
Jim Ebright
David Sternlight <da...@sternlight.com> wrote:
>
>Sheet music, piano rolls, films, etc. aren't Constitutionally protected
>speech, generally speaking. It depends on whether you have permission to
>do the speaking, under Article I Section 8 just after "post offices". In
>fact in that sense, no form of "fixing" of ideas is Constitutionally
>protected speech unless you are the first to fix.
Judge Patel's decision would seem to argue that she thinks otherwise.
(Since she is not only a lawyer but a sitting Federal Judge, argument
from authority, which some posters seem to love, would dictate
we listen to her and not you. ;) (Sorry folks, I couldn't resist.)
In reality, there is a whole wealth of First Admendment law concerning
films. Some of the cases are relatively recent...some dating from the
advent of the media. The same applies to a number of other media. And
now computer media is getting litigated... it's a natural process under
which the law develops.
--
A/~~\A Jim Ebright NET Security: http://www.coil.com/~ebright/security.html
((0 0))_______ mailto:ebr...@coil.com "I used to hunt elephants but I
\ / the \ don't do that anymore. There aren't enough of them" - Newt
(--)\ OSU | Gingrich to Andy Lodge, Theo.Roosevelt Cons. Award winner.
Jim Ebright
David Sternlight <da...@sternlight.com> wrote:
>
>Since it's sub judice, there's little point in commenting. Obviously in
>the age of OCR, it's machine-readable source code.
>
>Is it speech as well. I don't think so; others may, and the courts will decide.
I notice in reading the decisions, there seems to be an underlying current
that the First Admendment should be protected.
Censoring an otherwise legal book just because Big Brother doesn't like
its font would seem to run counter to this current.
But, as I understand it, the MIT Press book has had no legal action taken
against it. Is this correct?
Mark Eckenwiler
>
>Sheet music, piano rolls, films, etc. aren't Constitutionally protected
>speech, generally speaking.
This is an astonishing -- and verifiably false -- assertion.
The Supreme Court decision in _Erznoznik_ would be a good place for
you to start educating yourself, David.
--
Wovon man nicht sprechen kann, darueber muss man schreiben.
Mark Eckenwiler e...@panix.com
David Sternlight
<ka...@unix.ka9q.ampr.org> wrote:
> > David Sternlight <da...@sternlight.com> wrote:
>
> > >Some fancy begging the question here. The point isn't that source code can
> > >also be used to communicate ideas. Of course it can. The point is that its
> > >primary purpose is as a functional object, not language, to tailor a
> > >machine (computer) to perform a set of operations. In that sense it is no
> > >different than a black box that directly causes tick-tick-tick-boom.
>
> This was the government's contention in both my case and Bernstein's, and it's
> precisely this contention that Patel rejects in some of the clearest reasoning
> I've recently seen in a judicial opinion (not that I've seen a lot of
that lately!)
>
> Here's the relevant part of the opinion:
>
> Defendants argue in their reply that a description of software in
> English informs the intellect but source code actually allows
someone to
> encrypt data. 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. Its support in First
> Amendment law is nonexistent.
>
> Couldn't have said it better myself.
I don't agree with her logic, particularly her use of the undefined notion
of "utility value" to equate "value" with "notation" or "instructions to a
computer", etc. It's semantic gibberish and, I think, illogic.
Leaving that aside, she's left the door open to sustain ITAR with her
music analogy. If music is speech, then the copyright law clearly violates
"Congress shall make no law....". It is justified because elsewhere in the
Constitution and sequentially BEFORE the First Amendment (which puts paid
to another argument that latest counts when prior is not explicitly
repealed), Congress is told to protect the arts and sciences via patents
and copyrights.
Well, if the prior clause:
"To promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their
respective writings and discoveries;"
in Article I Section 8 can override:
"Congress shall make no law .... abridging the freedom of speech, or of
the press;"
(just try to use your free speech to utter a coypright work without
permission, or your free press to publish same), then there's no reason
that other aspects of Article I Section 8 can also override the First
Amendment, including:
"To regulate commerce with foreign nations, and among the several states...;"
and
"To ... provide for the common defence and general welfare of the United
States ..."
David
David Sternlight
somme...@orchard.medford.ma.us (Bill Sommerfeld) wrote:
> In article <david-20049...@nntp.netcom.com> da...@sternlight.com
(David Sternlight) writes:
> In contrast, the primary purpose of crypto source
> code is to encrypt traffic, not to express political ideas.
>
> I recall reading an interview with Phil Zimmerman in which he stated
> that he wrote PGP in order to make a political protest. Specifically,
> he wrote PGP 1.x in direct response to the original, failed "sense of
> congress resolution" regarding wiretap access back a few years ago.
>
> This sounds like the expression of political ideas; the very act of
> creating PGP is a political statement in the context of the current
> policy debade over cryptography.
>
> Indeed, I'd say that very the act of *using* PGP is also a political
> statement in the context of the current policy debate over
> cryptography.
Asserting that the Oklahoma City bombing, or the Unabombing was a
"political protest" doesn't make it Constitutionally protected.
David
David Sternlight
(Charlie Mingo) wrote:
> In article <david-20049...@nntp.netcom.com>, da...@sternlight.com
> (David Sternlight) wrote:
>
> > Some fancy begging the question here. The point isn't that source code can
> > also be used to communicate ideas. Of course it can. The point is that its
> > primary purpose is as a functional object, not language, to tailor a
> > machine (computer) to perform a set of operations.
>
> If source code can be used to communicate ideas, then it is "speech." The
> fact that it might also be used for some other purpose doesn't render it
> any less speech.
Please cite a legal precedent for the view that anything that can
communicate ideas is "speech". How about a nuclear weapon, which
communicates the idea "you are going away". Rational people don't shoot
guns at each other for no reason. They are usually trying to communicate
some idea, in the most definitive way. In fact by your definition almost
any human act or artifact is "speech". You are mixing up Heidegger with
the Founding Fathers here. That's not what they had in mind.
>
> > That crucial distinction is what produced the flag-burning decision.
I read it's citation and "explanation" by Patel for this discussion. I
don't think her logic will withstand appeal. We'll see. Let's not argue
about what will soon be facts--you have your view and I have mine. We're
not talking logical error here.
>
> You mean the author's purpose? Don't you have to ASK the author to decide
> what his purpose is? If the author is a mathematician who studies
> crypto, his purpose may well be to show a neat new way he has discovered
> to perform encryption.
That can be done with code extracts or even mathematical notation, not
working software. Your argument is thus disingenuous in that you would
have him hiding a whole behind a part for which the whole is unnecessary.
We're straying here into a separate subject, which I've treated
elsewhere--namely that even if it IS speech, certain classes of speech are
the Constitutional subject of legislation, First Amendment or not,
"Congress shall make NO law" or not. I refer, of course, to the copyright
laws, derived from Article I Section 8 (as are the crypto export
provisions of the munitions laws). Although the First Amendment came after
I-8, it did not explicitly repeal anything in it, and thus we have
copyright laws and, I suggest, a sustainable ITAR.
>
> Of course, the author's purpose is irrelevent if the government's purpose
> is not content-neutral (as with flag burning and crypto).
>
> > A technical paper (that doesn't contain source code) cannot
> > be fed into a computer to encrypt traffic. It is primarily a means of
> > expressing ideas. Source code can. It is primarily a process engine.
>
> A semantic argument.
Tee hee. Mine is a "semantic argument" and yours isn't?
> Suppose I publish source code which contains minor
> typographical errors. That can't be fed into a machine either without
> being editied by a human.
Now that's clearly a quibble. Might as well argue we shouldn't pass speed
laws, in case someone's speedometer is in error.
>
> > The difference is that the source code automatically produces the virus
> > which does it's virus thing when fed to the right machine. In effect the
> > source code IS the virus, lacking only the machine to execute it.
>
> The source code for a virus does not execute itself when fed into "the
> right machine".
It does if the machine is interpreter- rather than compiler-driven. For
legal purposes, the interpreter is part of the machine system. (See the
patent law if you feel like "semantic quibbling" about this point instead
of using the law's idea of "systems".) If you still want to quibble,
consider a machine with the source code interpreter hard-wired in (there
have been quite a few such over the history of computers).
> Some human has to compile it, and then some human has to
> introduce it to another machine not under his control for there to be an
> illegal act.
See above. Compiling isn't necessary, in principle.
>
> > This is an important distinction. The map is not the territory. The plans
> > are not the bomb. But the source code IS, for all practical purposes, the
> > virus.
>
> The plans for a bomb must be turned into a bomb by the intervention of a
> human, and source code must be turned into object code by the intervention
> of a human.
>
> You could just as easily argue that the plans for a bomb were a bomb, and
> that possession of plans was equivalent to possessing a bomb, and try to
> outlaw bomb manuals.
You could just as easily read what I wrote instead of responding to
something else.
> But the courts have already rejected such puerile
> attmepts to smudge the speech/act dictinction (eg, The Progressive, Inc vs
> US).
Smudging is what you just did. I cited a set of distinctions, between
plans for a device to do something illegal when the device is used
intentionally by human agency for that purpose, and notation that
automatically causes a device not intended by its operators for an illegal
purpose to perform illegal acts.
I think Patel, at a fundamental level, doesn't understand the nature of
computers and software. If the source code were a bomb, she'd understand
it. If it were a piece of hardware you could plug into a computer when
nobody was looking that would cause the computer to destroy itself, she'd
understand it. Because it's software (source code for a virus which is
read and executed by an interpreter) which can cause the computer to
destroy the contents of its hard disk, she doesn't understand it.
>
> > In contrast, there's no such thing as a machine executing the plans (paper
> > documents) for a bomb and blowing itself up.
>
> No one has bothered to build one, but they aren't technically impossible.
> It seems that your speech/act distinction is rather heavily dependnent on
> extraneous and irrelevent considerations.
Now you hand-wave the essential distinctions away as "extraneous and
irrelevant". Not too impressive. Might as well argue that if someone
invented mind-reading at a distance it would invalidate ITAR, so ITAR is
just based on extraneous and irrelevant considerations.
>
> > Let me put it another way: in today's practical world the plans for a bomb
> > have to be processed via human intelligence to produce a bomb, which then
> > must be planted and triggered.
>
> What about the planting and triggering of a computer virus? You are just
> ignoring the human activity required to develop computer software.
Here you make my point (probably inadvertently because you haven't been
following the reasoning closely). The plans for a bomb are, of course
produced by human activity just as is the computer software. That just
escalates each side of the argument up one level, but still does not
refute that the bomb plans side has one more necessary level of human
intervention and action before something explodes than does the software
source code virus side.
>
> One has to buy a computer, set it up, buy a compiler, insert the
> source-code disk, analyze and edit the source code to make it usable by
> your compiler, and then compile it.
Same point. You have to make the steel to make the bomb, etc. You're just
obfuscating here (I have no doubt unintentionally).
>
> > The source code works automatically. Read
> > it into an interpreter and it wipes your hard disk.
>
> The second sentence describes an act performed by a human, which
> contradicts the first sentence's use of "automatically".
Nope. The parallel here is carrying the bomb somewhere and lighting it.
We're still one level different on the two sides.
It's clear at this point that we're getting into a semantic morass (you
accuse me of doing that and I accuse you of the same so let's leave it at
the joint "we"--no blame), and now that Goldberg has tried to bring the
language folks into it, it's going to get worse. That kind of pilpul*
isn't useful in the present context. I've given my views and reasoning on
the matter, pointed out a few logical flaws in attempted refutations,
others have done what they think the same to me, and this is as good a
point to get off the train as any. We'll soon know what the outcome is and
there's no point in further arguing about what will soon be facts, nor in
producing yet another interminable Usenet thread.
Best;
David
---
*Pilpul: Talmudic disputation.
David Sternlight
> In article <4ldhvt$4...@calcite.rhyolite.com>, v...@calcite.rhyolite.com
> (Vernon Schryver) wrote:
>
> > How does the court determine whether regulations are "content-netural"
> > or "content-based"? If a regulation allows the export of other diskettes,
> > for example blank diskettes or diskettes containing the collected works
> > of W.Shakespear, but not the export of the Karn diskette, how are they
> > not "content-based"?
>
> I think Judge Richie got confused, and thought it was a case about the
> export of encrypted text, instead of a case about the export of a
> particular text that could be used to encrypt.
>
> : Pursuant to extensive First Amendment jurisprudence, the government's
> : rationale for the regulation controls, regardless of the form of the
> : speech or expression regulated. ....Accordingly, it is unnecessary
> : for the Court to make any finding regarding the nature of the matter
> : contained on the Karn diskette.
>
> Since the government's intent was to prevent the spread of encryption
> technology overseas (which he deems to be "content neutral"), Judge Richie
> seems to believe that any action taken to achieve that goal is inherently
> insulated from First Amendment analysis.
>
> As there are no cases to support this remarkable position, he is reduced
> to citing cases involving "reasonable time, place and manner restrictions"
> on speech, although this case involves an absolute ban and is
> content-based.
>
> Under his rationale, the government could also ban any public discussion
> of crypto within the US, so it appears he has simply read the First
> Amendment out of the constitution. It seems to be a rather careless
> opinion.
I got it. You don't like "Richie" so he "got confused", but you like
"Patel" so she's done a marvel of analysis.
:-)
No need to reply--it's just a wry remark, not an invitation to justify yourself.
David
Andrew Spring
> it is silly to outlaw the diskette
> and allow the paper when the conversion from one to the other
> is trivial.
>
Agreed. However, I think Richey's decision in the Karn case was that the
silliness was a political issue, and outside the jurisdiction of the
court.
--
...computers in the future may have only 1,000 vacuum tubes and weigh
only 1/2 tons. -- Popular Mechanics, March 1949
++++ PGP Public Key URL ++++++
<http://swissnet.ai.mit.edu:11371/pks/lookup?op=get&search=0x78068A41>
Brent Marshall
>In article <4ldhp8$a...@nic.umass.edu>, qui...@twain.oit.umass.edu (Lulu of
>the lotus-eaters) wrote:
>
>> the mere ruling that Bernstein's case has sufficient
>> merits not to dismiss is hardly binding upon the substantative rulings of
>> even the 9th Circuit. In other words, as much as I agree with Judge
>> Patel's belief about source code, it's NOT precedent.
>
>The decision does contain a substantive holding that source code is speech
>for first amendment purposes, and it is binding on other federal district
>courts in the Northern District of California, so it is indeed a
>precedent.
Is it a published opinion (given its length and the context of the
case, I would imagine so)? If so, it is precedent. It is not binding
on other District Courts, but if they find its reasoning persuasive,
they would be likely to cite it as precedent. Now, if the decision
were overruled by the court of appeals, then it would no longer be
precedent.
-----
Brent Marshall
bmar...@us.net
Ed Gallup
>somme...@orchard.medford.ma.us (Bill Sommerfeld) wrote:
>
>
>Sheet music, piano rolls, films, etc. aren't Constitutionally protected
Really? ... and burning the flag, trespassing to demonstrate
against a private business, painting pictures of someone peeing in the mouth
of Christ, etc, is free speech? ... something wrong here.
Ed
John Wingate
sci.crypt deleted from the Followup-To line.]
David Sternlight (da...@sternlight.com) wrote:
: In article <4le5uv$m...@cnn.Princeton.EDU>, ad...@flagstaff.princeton.edu
: (Adam J. Thornton) wrote:
: > How do you feel about the as-yet unchallenged legality of exporting the
: > paper book _PGP: Internals_ (or whatever it's actually called--you know,
: > the big one from MIT Press). All this book is is the PGP 2.6.2 source code
: > and an introduction that describes which scanner+OCR packages will
: > transform it from a paper to an electrical medium.
:
: Since it's sub judice, there's little point in commenting. Obviously in
: the age of OCR, it's machine-readable source code.
David Sternlight's interpretation of "machine-readable" is broader than
that of the State Department and Judge Richey (and even Phil Karn) in the
Karn case. Judge Richey writes:
... the regulation of the plaintiff's diskette as cryptographic
software is rational, even when considered in conjunction with the
defendants' decision not to subject the book Applied Cryptography to
the ITAR. As stated by the plaintiff in his commodity jurisdiction
application for Applied Cryptography, the book contains no
machine-readable media," while the diskette is precisely that. See
Lowell Decl., Tab 4. Although Part Five of the book could be placed on
machine readable media through the use of optical character
recognition technology or through direct typing, the plaintiff
concedes that using the source code in part Five of Applied
Cryptography Applied Cryptography to encode material takes greater
effort and time than using the Karn diskette. Karn Decl. śś 10-12.
Accordingly, treating the book and diskette differently is not in
violation of the plaintiff's substantive due process rights.
Current OCR software may require a little help, but technical advances
may render printed books routinely machine-readable. Can we then look
forward to the day when some future edition of "Applied Cryptography"
will require an export license?
Should that happen, would the government allow cryptographic source
code to be read aloud in international phone calls without an export
license? And when machine recognition of speech becomes routine, what
then?
________________________________________________________________________
John Wingate win...@clark.net
William Unruh
>I don't agree with her logic, particularly her use of the undefined notion
>of "utility value" to equate "value" with "notation" or "instructions to a
>computer", etc. It's semantic gibberish and, I think, illogic.
No, she does not equate "value " with notation. She states that computer programs
are a means of communication between people just as any language is. She is
responding to the aruement that the defense (and you) have made that computer
programs have a high utilitarian value as well (they can be used to tell a
computer to perform certain operations) She then says that just because speech
has a utilitarian value, it does not become less speech as far as the First is
concerned. Ie, the emphasis on the utilitarian value of computer source code is
misplaced and irrelevant to the First ammendmant.
>Leaving that aside, she's left the door open to sustain ITAR with her
>music analogy. If music is speech, then the copyright law clearly violates
>"Congress shall make no law....". It is justified because elsewhere in the
>Constitution and sequentially BEFORE the First Amendment (which puts paid
>to another argument that latest counts when prior is not explicitly
>repealed), Congress is told to protect the arts and sciences via patents
>and copyrights.
Of course. . This judgement is far from the final word. However, if it is speech
then the limits that the gov't can place on speech are very strict and narrow.
They must I believe show that allowing the speech would cause immediate and
irreperable harm, and that the law is sufficiently narrow so as to limit only
that immediate harm. The right to free speech is not unlimited, and everyone
knows that. Sedition, "Fire", copyright, libel, ... are all limits on free speech.
I do not know why you are fighting a straw man that only you seem to have
erected.
It is entirely possible that the court would find that ITAR was fine, and that
Bernstein could publish his code, snuffle.c freely and in any form ( including on
the internet), and that export required that the person accused of exporting it
had to personally take an active part in exporting the code to be accused of
exporting it. I believe that all of these would be consistant with her ruling.
That this would make the ITAR software rules totally ineffective would be a
problem then for Congress to solve, taking into account the fact that source code
is potentially protected speech.
--
Bill Unruh
un...@physics.ubc.ca
William Unruh
>Please cite a legal precedent for the view that anything that can
>communicate ideas is "speech". How about a nuclear weapon, which
>communicates the idea "you are going away". Rational people don't shoot
>guns at each other for no reason. They are usually trying to communicate
>some idea, in the most definitive way. In fact by your definition almost
>any human act or artifact is "speech". You are mixing up Heidegger with
>the Founding Fathers here. That's not what they had in mind.
Well, it is what the courts have decided they had in mind. Any action used to
communicate an idea is speech. There are certainly grey areas, and some speech is
so destructive that limits to that speech are necessary. The courts have long
recognised this. Almost any human act or artifact can be speech under the right
circumstances. The courts will not spell out hypothetical circumstances however,
but only rule on specific cases.
--
Bill Unruh
un...@physics.ubc.ca
David Sternlight
Wingate) wrote:
Yes.
>
> Should that happen, would the government allow cryptographic source
> code to be read aloud in international phone calls without an export
> license?
Yes, until:
> And when machine recognition of speech becomes routine, what
> then?
At that point one won't be able to read it aloud. Note that this is not
all that far-fetched. The plaintiff in "Patel" is already claiming his
freedom to teach is restricted by the ITAR since he has to insure there
are no foreign nationals in his classroom before covering certain topics.
Note also that that's where my analysis leads--it's not an advocacy. It
could also happen that when the Supreme Court makes the trade-off between
Article I Section 8 and Amendment I, they decide that Amendment I is more
important and throw out ITAR insofar as software is concerned. And I think
you would agree with me that whatever the Court decides is going to the
strongly affected by the mix of liberal and conservative Justices sitting
at the time.
Thus there's no axiomatic "truth" here--there's only a tradeoff between
conflicting (in this case) provisions in the Constitution. If this were a
matter of a syllogism, the courts wouldn't have to be dealing with it now.
It would be an open-and-shut slam dunk. Instead we're treated to the
spectacle of two sitting Federal Judges, Richey and Patel, in two
different circuits, holding differently about what Constitutional law is
on "speech". It's guaranteed that this is going to come up on appeal, if
only in the Karn case.
Finally, since we've gone about as far as we can in this conversation
without its becoming both repetitive and tiresome, I'm trying to extricate
myself from it. I respond to you because you asked direct questions. Let's
leave it here and watch the main event in the courtroom to see what
happens.
David
Aquiles Luna-Rodriguez
: This really is the dream case on export controls; the plaintiff is
: trying to publish something and is being restrained under threat of
: criminal prosecution. That's a pure first amendment issue.
: And there are few distracting issues here; the plaintiff owns the
: material in question, the intent is publication, no classified-material
: issue obtains, the publication is not incidental to the export of
: a tangible item, and administrative remedies have already been exhausted.
: So this one will have to be decided squarely on constitutional grounds.
For all foreigners that have followed the O.J.Simpson trial, such faith
on the justice of american law is naive, at best.
However, whatever crypto software is legal or not is utterly irrelevant,
because there's no way to enforce laws against it. Take example from
France: it is forbidden for *any* reasons the use of cryptography, but
most french don't know it or simply ignore the matter.
*********************************************************************
* Aquiles Luna-Rodriguez //I've found it! here's the bg! *
* Universitaet Hamburg, Germany //Nobody expects... *
* pz4...@rrz.uni-hamburg.de //..the Spanish Inquisition! *
*********************************************************************
Bill Sommerfeld
do the speaking, under Article I Section 8 just after "post offices". In
fact in that sense, no form of "fixing" of ideas is Constitutionally
protected speech unless you are the first to fix.
This is irrelevant tangent. We're talking about regulation of speech,
not copyright/patent. Art I section 8 enumerates the limited powers
of the U.S. Federal congress, which include:
> 8. To promote the progress of science and useful arts, by
> securing for limited times to authors and inventors the exclusive right to
> their respective writings and discoveries.
It does *not* authorize the congress to prevent authors and inventors
from distributing their own works and discoveries. Indeed, as Patel
writes:
"By analogy, copyright law also supports the `expressiveness' of
computer programs. Computer software is subject to copyright
protection as a `literary work' 17. U.S.C. sections 101, 102(a)(1)".
Anyhow, with respect to the quote from SICP:
Right. Which court is that? I can vamp philosophically, too, but it has no
legal standing. And it won't be the first time I've disagreed with Hal
Abelson--in this case for his use of "rather" rather than "and".
I'm not sure whether Hal Abelson or Gerry Sussman wrote that; I'll
have to ask Hal the next time I see him. In any event, the quote is
merely evidence that some significant workers in the field see source
code as a means of communication between programmers. You keep
harping on the artificial distinction between "natural language" and
"notation"; I see little difference between invented programming
languages and invented "natural" languages like Esperanto.
Are works in artificial notations like Esperanto not protected by the
First Amendment?
My experience working on very large software systems underscores this;
programmers who write functional, but incomprehensible software are a
liability, not an asset..
- Bill
Iolo Davidson
da...@sternlight.com "David Sternlight" writes:
> No need to reply--it's just a wry remark, not an invitation
> to justify yourself.
Concise Oxford:
Wry - Distorted, turned to one side, skew
Iolo Davidson
> I think Patel, at a fundamental level, doesn't understand the nature of
> computers and software. If the source code were a bomb, she'd understand
> it. If it were a piece of hardware you could plug into a computer when
> nobody was looking that would cause the computer to destroy itself, she'd
> understand it. Because it's software (source code for a virus which is
> read and executed by an interpreter) which can cause the computer to
> destroy the contents of its hard disk, she doesn't understand it.
Sternlight has not taken on board my post about the law as it
relates to computer viruses. This may be because he hasn't seen
it. He has willfully blinded himself to the contributions of
many who post here (alt.security.pgp), about 21 at last count,
and it appears that he is still can't see them.
Mark Eckenwiler
[re Judge Patel's decision in the Bernstein case that software source
code is protectible speech]
>
>Leaving that aside, she's left the door open to sustain ITAR with her
>music analogy. If music is speech, then the copyright law clearly violates
>"Congress shall make no law....". It is justified because elsewhere in the
>Constitution and sequentially BEFORE the First Amendment (which puts paid
>to another argument that latest counts when prior is not explicitly
>repealed), Congress is told to protect the arts and sciences via patents
>and copyrights.
This is arrant nonsense. *Speech* is speech (and, FYI, music is also
First Amendment "speech"), but the copyright law has never been held
to violate the First Amendment.
Moreover, the phrase "no law" has never been read literally. One can
come up with any number of examples -- including treason, disclosure
of national security information, conspiracy, or obscenity -- in which
Congress has made laws restricting certain types of speech.
And as for whether or not the later-in-time Amendments override
clauses in the Constitution itself -- or, for that matter, whether the
14th amendment controls in any conflict with the 11th -- I think the
decision late last month in _Seminole Tribe_ supplies a decisive
answer. (Held: the Indian Commerce Clause cannot serve as the basis
for Congressional abrogation of 11th Amendment immunity.)
Robert I. Eachus
> Please cite a legal precedent for the view that anything that can
> communicate ideas is "speech". How about a nuclear weapon, which
> communicates the idea "you are going away". Rational people don't
> shoot guns at each other for no reason. They are usually trying to
> communicate some idea, in the most definitive way. In fact by your
> definition almost any human act or artifact is "speech". You are
> mixing up Heidegger with the Founding Fathers here. That's not
> what they had in mind.
David, occasionally you deliver a straight line I can't
resist. You have heard of the Progressive case right? All about
nuclear weapons, free speech, and prior censorship. And for that
matter the "Pentagon Papers" case, and many, many cases about Fourth
of July fireworks. Why do you think that towns and cities all around
the country have fireworks displays? Courts early on decided, quite
correctly, that municipalities could regulate such displays, but
banning fireworks entirely was unconstitutional. (Actually a lot of
these cases involved Chinese New Year's celebrations as well, and the
granddaddy of them all, the Mummer's Parade in Philadelphia.)
But of course, the case you MUST understand is the case of William
Penn's hat. Pennsylvania was GIVEN to William Penn by the Crown in
part as compensation for how he and other Quakers were treated in that
case. (And one of those Quakers was named Robert Eachus.) My
ancestors, and I suspect some of yours, fought hard to get that
precedent enshrined in the Constitution, and the result was in part
the First and Fifth Amendments. So I assure you David, that very much
was what the Founding Fathers had in mind.
And by the way, your prattling about copyright law, is getting
obnoxious. You have heard of "fair use" doctrine, and you realize
that copyright law does not conflict with the First Amendment don't
you? If I violate your copyright, that creates a civil tort, it is
not a crime. In court, I can, as many defendents have, defend my
actions as an exercise of free speech. Your only defense in that case
is to go to commercial speech--if I violated your copyright for
commercial gain, that gain is not protected speech. But, and this is
the key point, the only way I could be convicted of a crime would be
if I violated an injunction against publishing, and was charged with
contempt of court. (Of course, showing that the injunction is
unconstitutional, if it is, is a perfect defense.)
--
Robert I. Eachus
with Standard_Disclaimer;
use Standard_Disclaimer;
function Message (Text: in Clever_Ideas) return Better_Ideas is...
Ed Stone
> (just try to use your free speech to utter a coypright work without
> permission, or your free press to publish same), then there's no reason
> David
Sure, just try, and you will find that you actually can utter copyright
work or publish same without interference from governmental authority --
until AFTER you've done it. To do otherwise is "prior restraint", and a
troubling point for those who would assert from ignorance that various
speech such as source code, or pictures of crucifixes in urine, or
flaming stars and stripes cloth and other "protected speech" is
frivolously subject to prior restraint.
Or, picture a court that says, "That photo of a bullwhip handle inserted
into ..... is protected speech, and taxpayers shall be required under
penalty of law to assist financially in its publication, but that
'#!/bin/perl -sp0777i<X+d*lMLa^*lN%0]dsXx++lMlN/dsM0<j]dsj
$/=unpack('H*',$_);$_=`echo 16dio\U$k"SK$/SM$n\EsN0p[lN*1
lK[d2%Sa2/d0$^Ixp"|dc`;s/\W//g;$_=pack('H*',/((..)*)$/)' is not
protected speech, and I enjoin you from saying it under threat of fine,
deprivation of liberty, and confiscation of your other personal and real
property!"
That, when expressed in simple terms, would be a real head-scratcher for
about 99.99999% of the possible juries, don't you think?
See Pentagon Papers, and more than abundant other precedents.
--
---------------------------------
Ed Stone
est...@synernet.com
---------------------------------
Roger Ivie
> Then she has placed us in a situation very like that we've been in with
> respect to guns and gun control. That is--her decision creates a
> Constitutional protection for source code. But unlike most speech, source
> code when used as designed can cause direct consequential physical damage,
> lock-stepped to the source code itself. The most obvious example is the
> source code for a computer virus.
Ah, but computer viruses are "hate speech". :-) :-) :-)
--
-------------------------+---------------------------------------------
Roger Ivie | "Evil has been rousted and the babysitter
iv...@cc.usu.edu | paid. Our work here is done."
http://cc.usu.edu/~ivie/ | -- The Tick
David Sternlight
eac...@spectre.mitre.org (Robert I. Eachus) wrote:
> In article <david-22049...@nntp.netcom.com> da...@sternlight.com
(David Sternlight) writes:
>
> > Please cite a legal precedent for the view that anything that can
> > communicate ideas is "speech". How about a nuclear weapon, which
> > communicates the idea "you are going away". Rational people don't
> > shoot guns at each other for no reason. They are usually trying to
> > communicate some idea, in the most definitive way. In fact by your
> > definition almost any human act or artifact is "speech". You are
> > mixing up Heidegger with the Founding Fathers here. That's not
> > what they had in mind.
>
> David, occasionally you deliver a straight line I can't
> resist. You have heard of the Progressive case right? All about
> nuclear weapons, free speech, and prior censorship.
The "Progressive" case wasn't about nuclear weapons. It was about plans
for nuclear weapons, published domestically. As such, it is easily
distinguishable from "Patel". You can publish strong crypto source code
domestically all you want.
You can even "Schneier" export it in book form, though in an age of OCR
that one troubles me. Arguing, as the government did successfully, that a
disk is somehow "easier" to copy widely (everyone with a computer has a
disk drive, pretty much) than the OCR of a text (only a minority have
those), is unsatisfying. As readers know I like clear, crisp distinctions
hopefully robust over time, and that isn't one of them. But I digress.
> And for that
> matter the "Pentagon Papers" case,
Same deal. Domestic publication, not munitions exports.
> and many, many cases about Fourth
> of July fireworks. Why do you think that towns and cities all around
> the country have fireworks displays? Courts early on decided, quite
> correctly, that municipalities could regulate such displays, but
> banning fireworks entirely was unconstitutional. (Actually a lot of
> these cases involved Chinese New Year's celebrations as well, and the
> granddaddy of them all, the Mummer's Parade in Philadelphia.)
You're getting weird on me again, Eachus. This wasn't an export case.
>
> But of course, the case you MUST understand is the case of William
> Penn's hat. Pennsylvania was GIVEN to William Penn by the Crown in
> part as compensation for how he and other Quakers were treated in that
> case. (And one of those Quakers was named Robert Eachus.) My
> ancestors, and I suspect some of yours, fought hard to get that
> precedent enshrined in the Constitution, and the result was in part
> the First and Fifth Amendments. So I assure you David, that very much
> was what the Founding Fathers had in mind.
Nice story, though irrelevant. I didn't know that about your family. The
closest I've ever come to Quakers is going to a meeting or so in my youth.
Very inspiring. I'd love to be able to say that some of my best Friends
are Quakers, but that would be reaching.
>
> And by the way, your prattling about copyright law, is getting
> obnoxious. You have heard of "fair use" doctrine, and you realize
> that copyright law does not conflict with the First Amendment don't
> you?
Sure it does. Congress made a law regarding speech. I can't speak "Eleanor
Rigby" without permission of the copyright holder. That the law has
exceptions (fair use, permission), is irrelevant. What part of "NO law"
don't you understand? It's a clear contradiction to several arguments, and
establishes by example:
1. "No law" doesn't really mean "no" law when other provisions of the
Constitution are involved.
2. That an amendment comes after a provision does not automatically make
it senior to that provision. The provision must be explicitly repealed or
modified to make that so.
> If I violate your copyright, that creates a civil tort, it is
> not a crime.
The Constitution doesn't say "Congress may make no criminal law regarding
speech" but "NO law." It does not say "Congress may not make speech a
crime" but "shall make NO LAW"!!!!! I hate to shout but in communicating
with the near-deaf...
> In court, I can, as many defendents have, defend my
> actions as an exercise of free speech. Your only defense in that case
> is to go to commercial speech--if I violated your copyright for
> commercial gain, that gain is not protected speech. But, and this is
> the key point, the only way I could be convicted of a crime would be
> if I violated an injunction against publishing, and was charged with
> contempt of court. (Of course, showing that the injunction is
> unconstitutional, if it is, is a perfect defense.)
Incoherent. Illogical. Contradicted by the words of the Constitution,
which doesn't, for the fiftieth time, say "convicted of a crime" but "make
no law".
Time to stop.
David
Carl Schott
[...deleted...]
:
: Leaving that aside, she's left the door open to sustain ITAR with her
: music analogy. If music is speech, then the copyright law clearly violates
: "Congress shall make no law....". It is justified because elsewhere in the
: Constitution and sequentially BEFORE the First Amendment (which puts paid
: to another argument that latest counts when prior is not explicitly
: repealed), Congress is told to protect the arts and sciences via patents
: and copyrights.
[...deleted...]
This is about the dumbest thing I've ever seen from Sternlight (and
that's saying a lot, especially in this thread!). This argument is
begging to be shot down from so many different perspectives that it's
hard to know where to start--so I'll just make the simplest, most
obvious point. If one wishes to construct an absurd argument that
copyright law violates the First Amendment, one doesn't have to rely
on a premise that "music is speech".
Perhaps David had just "forgotten" that books, magazines, newspapers,
movies, videotapes, TV shows, etc. are also "speech" and copyrighted.
Carl Schott
Carl Schott
: In <david-22049...@nntp.netcom.com>, da...@sternlight.com sez:
: >
: >Sheet music, piano rolls, films, etc. aren't Constitutionally protected
: >speech, generally speaking.
:
: This is an astonishing -- and verifiably false -- assertion.
:
: The Supreme Court decision in _Erznoznik_ would be a good place for
: you to start educating yourself, David.
Yes, and I think it's another candidate for "dumbest thing Sternlight
has ever posted". :)
On a slightly different tack, which I think sheds some light on this
discussion--can anyone think of an example of something which is
copyrightable, but NOT afforded protection as "speech" under the First?
(Other than computer source/object code, of course, since it's in
dispute here.)
Carl Schott
Charles R. Smith
>In article <4le4j9$p...@nef.ens.fr>, es...@bireme.ens.fr (Roger Espel
>Llima) wrote:
>> >Some fancy begging the question here. The point isn't that source code can
>> >also be used to communicate ideas. Of course it can. The point is that its
>> >primary purpose is as a functional object, not language, to tailor a
>> >machine (computer) to perform a set of operations. In that sense it is no
>> >different than a black box that directly causes tick-tick-tick-boom.
>>
>>
>> So, you're telling us that this might not be speech?
>>
><example of English-language description of a crypto algorithm, followed
>by a compiler for it, omitted>
>That's a separate issue. The English-language description might be
>exportable or it might not. Part of that question is being taken up with
>respect to Phil Z's PGP source code textbook.
Backpeddling already? Last fall you stated flatly that any data in
electronic format (disk, tape, CD, etc...) can be censored. To which
I challanged your "goose-stepping logic" by calling you a book burner.
Today, it "might be"? Aw, come on, David, at least show that you have
a position other than CYA.
>There are lots of possible outcomes. Congress could make a law regarding
>that kind of speech, whose primary purpose was to communicate matter
>classified as defense articles.
It is already covered under the "clear and present danger" ruling of
the Supreme Court. In fact, the whole argument against export of
encryption is based on that argument. Of course, you forget to
mention that a 16 year old can now encrypt messages that the combined
budgets of the NSA could never de-code. At what point does the danger
argument fall away and become nothing but a straw man?
>Before you rush to quote "Congress shall make no law ..." Congress has
>made plenty of laws concerning what is generally thought to be speech,
>under other powers in the Constitution, the Copyright laws for a start.
Yep, and they have stuck to the three execeptions to free speech:
Libel or slander.
Threats to the President.
Speech of a clear and present danger.
You have stuck to the bottom of my shoe. Me thinks it is time to
scrape you off. Quit doging the issue. Source code is now considered
part of speech and may (note the MAY) be covered under the First
Amendment. Therefore, book burners might have to skip the computer
source code section. Too bad, David, you were ready to torch the
whole lot.
>It takes more than a clever exception to upset a law. Laws aren't
>syllogisms, and exceptions are what specific trials are for.
I cannot post code (freely) without being threatened by a felony. I
cannot post too precise details lest I gain the same charge from some
overzelous government bureaucrat. I cannot post shareware. Because
to do so would be considered "illegal export of a weapon". But I can
go down to the local library, check out several nice books on history
and cryptography. My product is available in retail form. My product
is based on public domain documents. Anyone can walk in, buy it and
put it in a diplomatic bag bound for who knows where. I can sell it
to a minor or a convicted felon - as long as they are U.S. citizens.
Gee, what a great law! See how it is protecting us from those evil
foreign terrorists! What a crock.
Don't you think it's time for some common sense in the law?
1 if by land, 2 if by sea. Paul Revere - Encryption 1775
Charles R. Smith
SOFTWAR Richmond, VA http://ally.ios.com/~softwa19
PCYPHER signature:
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601D141C6516051C061976462B382C294542435F19665B2B316E174955445C56
5A506675180400041F030A001472657A6A1201191C0E0003784FCCE47ACB9531
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D5C6BDAECA57F968898F345920D5804CF5832D70534F5C66230AF099F68CAECD
David Sternlight
If it's dumb you want, your reply will do fine. it simply emphasizes my
point--which is that aspects of Article I Section 8 are in contradiction
to the First Amendment's absolute "no law" and yet stand as valid law.
So how was it, again, that you were going to shoot down the argument? By
assertion or with logic? So far you've reinforced my argument.
David
Marc Thibault
>
> Putting it another way, if you give a human the plans, he can't use them
> to hit you over the head (well, unless they're pretty big and rolled up).
> He can only use them to make a bat, which itself just sits there. But if
> you load the code, the computer _can_ use it to erase your hard disk.
You neglected to "put it the other way" all the way. If you
give a human the source code, he can't use it to erase your
hard disks. He can only use it to make an executable virus,
which itself just sits there until the code is _run_, not
merely _loaded_.
I'm in possession of a quantity of virus code as well as
high-security encryption code. My computer is in no danger of
being infected, nor are my files in any danger of turning into
unreadable random noise. Nothing happens until the executable
is manufactured and the result is activated. Neither of these
things is automatic. In fact, I need some expensive and
complex tools to make them happen. Not so the bat against
someone's head.
> it comes to logic, I'll respond. When it comes to opinion, yours is as
> valid as mine until a court rules further or doesn't.
What makes the court's opinion any more valid than yours? You
probably have a great deal more experience on this topic than
any judge who will rule on it.
Marc Thibault
> > it is silly to outlaw the diskette
> > and allow the paper when the conversion from one to the other
> > is trivial.
> >
>
> Agreed. However, I think Richey's decision in the Karn case was that the
> silliness was a political issue, and outside the jurisdiction of the
> court.
Now _that_ makes sense. In more ways than one.
John Nagle
>John Nagle (na...@netcom.com) wrote:
>: This really is the dream case on export controls; the plaintiff is
>: trying to publish something and is being restrained under threat of
>: criminal prosecution. That's a pure first amendment issue.
>: And there are few distracting issues here; the plaintiff owns the
>: material in question, the intent is publication, no classified-material
>: issue obtains, the publication is not incidental to the export of
>: a tangible item, and administrative remedies have already been exhausted.
>: So this one will have to be decided squarely on constitutional grounds.
>For all foreigners that have followed the O.J.Simpson trial, such faith
>on the justice of american law is naive, at best.
No, that's not the point I'm making. U.S. courts will generally
not address a broad constitutional issue unless they absolutely have to.
But in this case, they'll probably have to address it, because there
are so few other issues. For example, if administrative appeals hadn't
been exhausted, the court could rule that the plaintiff had to go through
that process first. But he's done that. If the issue were, say, that
the material in question was the manual for a tangible thing being
exported, it could be argued that the first amendment issue is
incidental to the export control issue. But that's not the case.
And there's no argument over the facts (in the legal sense); it's a
pure issue of law. So the court has to address the big issue.
How they'll decide it is something else.
It's also worth noticing that regardless of how the district
court decides the case, it's already been narrowed down to a
constitutional issue. So if it goes to appeal, it will be on those
grounds.
John Nagle
Carl M. Kadie
no law". Second, details on the standard that replaced "clear and
present danger".
[Aside: The first doesn't mention copyright, but I would agree with
David that copyright law regulates speech. While courts have not found
that the First Amendment forbids copyright law, they have said that
First Amendment requires Fair Use exceptions to copyright-granted
monopolies. - Carl]
=== Excerpt ACLU Briefing Paper Number 10 "Freedom of Expression" =====
=====ftp://ftp.eff.org/pub/CAF/civil-liberty/freedom-of-expression.aclu ===
[...]
---
Are any forms of expression not protected by the First Amendment?
---
The Supreme Court has established several limited exceptions to the First
Amendment's protections:
FIGHTING WORDS: In the 1942 case of _Chaplinsky v. New Hampshire_, the
Supreme Court held that so-called "fighting words...which by their very
utterance inflict injury or tend to incite an immediate breach of the
peace" are not protected by the First Amendment and can be punished. The
Court based its decision on the concept that such utterances are of
"slight social value as a step to truth."
LIBEL: In the 1964 case of _New York Times Co. v. Sullivan_, the Supreme
Court held, in a groundbreaking decision, that defamatory falsehoods
published about public officials are not protected by the First Amendment
and can be punished if the offended official can prove that his/her
accuser published the falsehoods with "actual malice" -- that is, with the
"knowledge that the statement was false or with reckless disregard of
whether it was false or not." While the Court's decision addressed a
particular type of common law libel, other kinds of "libelous statements"
are also punishable.
COMMERCIAL SPEECH: In the 1976 case of _Virginia Pharmacy Board v.
Virginia Citizens Consumer Council_, the Supreme Court struck down a state
ban on prescription drug advertising on First Amendment grounds. However,
commercial speech -- which includes advertising, financial and credit
reports, and the like -- still has far less First Amendment protection
than other speech. Generally, it can be banned if it is, on the whole,
misleading or takes undue advantage of its audience.
OBSCENITY: "Obscene" material has historically been excluded from First
Amendment protection, which has led to the official banning of such
classics as James Joyce's _Ulysses_ and D.H. Lawrence's _Lady Chatterly's
Lover_, as well as the criminal prosecution of countless publishers, book
distributors, storekeepers, film distributors and artists. But in the
1973 case of _Miller v. California_, the Court re-examined the issue and
established a standard for determining whether material is obscene. The
Court ruled that material is legally obscene if: (1) the average person,
applying contemporary community standards, would conclude that the work,
taken as a whole, appeals to prurient interests; (2) it depicts sexually
explicit conduct, specifically defined by law, in a patently offensive
manner; and (3) it lacks serious literary, artistic, political or
scientific value. The _Miller_ test is still the law today.
Unfortunately, the Supreme Court's long-standing unwillingness to strike
down all obscenity laws as unconstitutional infringements on freedom of
expression has allowed censorship to flourish at various times in our
history because of public officials' tendency to apply the Court's narrow
limits in overbroad ways. This remains a problem with all of the limited
exceptions to the First Amendment.
[...]
============= ftp://ftp.eff.org/pub/CAF/law/brandenburg-v-ohio =====
Is there a right to speech that advocates illegal acts or violence?
(My response is based on U.S. law. It is a summary of the ACLU's Bill
of Rights Briefing Paper #10: Freedom of Expression.)
In 1919 the Court said no. Indeed, it said that any speech that had a
'tendency' to cause a volation of the law could be punished. This
principle was used to convict a Socialist for mailing antiwar
leaflets.
In 1925 the Court established stronger speech protections, stating
that speech could not be punished unless it presented 'a clear a
present danger' of imminent harm. In 1931, this was used to overturn a
conviction based on a California law. That law make it illegal to
publically salute a red flag -- the symbol of (violent) revolution.
In 1950's during the second Red Scare, the Court backtracked saying
that the clear-and-present-danger principle did not apply to speakers
who advocated overthorwing the government, no matter how remote the
danger of such an occurrence might be. (This paved the way for jailing
policitial activists, loyalty oaths, etc).
In the 1969 case of Brandenberg v. Ohio, the Supreme Court struck down
the conviction of a Ku Klux Klan member under a criminal syndicalism
law and established a new standard: Speech may not be suppressed or
punished unless it is intended to produce 'imminent lawless action'
and it is 'likely to produce such action.' Otherwise, the First
Amendment protects even speech that advocates violence. The
Brandenberg test is the law today.
Here's what Alan Dershowitz writes about the distinction between advocacy
and incitement (_The Best Defence_ p. 222):
"Advocacy is the communication of ideas; it is directed at intellect;
it affords the listener an opportunity to reflect on it. Incitement,
on the other hand, ... is a spur to automatic action, intended to
bypass the rational thought processes. It is against this
oversimplified background that the classic case of shouting fire in a
crowded theater can best be understood. Shouting the word "fire" is
not the communication of an idea designed for reflective thought; it
is precisely the same as if a fire *bell* were intentionally rung. It
is intended to spur an automatic series of responses."
--
Carl Kadie -- ka...@cs.uiuc.edu -- University of Illinois at Urbana-Champaign
-------------------
--
Carl Kadie -- I do not represent any organization or employer; this is just me.
= Email: ka...@cs.uiuc.edu =
= URL: <ftp://ftp.cs.uiuc.edu/pub/kadie/>
William Unruh
>1. "No law" doesn't really mean "no" law when other provisions of the
>Constitution are involved.
Yes, you have got it. What apparently it does mean that if a law is
passed regarding speech, there must be a compelling case for that law,
that the courts will treat as a strong presumption that that law should
not have been passed and the onus is on the gov't to justify tht law.
--
Bill Unruh
un...@physics.ubc.ca
William Unruh
>David Sternlight wrote:
>> (just try to use your free speech to utter a coypright work without
>> permission, or your free press to publish same), then there's no reason
>> David
>Sure, just try, and you will find that you actually can utter copyright
>work or publish same without interference from governmental authority --
>until AFTER you've done it. To do otherwise is "prior restraint", and a
>troubling point for those who would assert from ignorance that various
>speech such as source code, or pictures of crucifixes in urine, or
>flaming stars and stripes cloth and other "protected speech" is
>frivolously subject to prior restraint.
I am sorry, but then all restraint is not prior restraint. After all,
unless the gov't actually gags you physically, you can always say
anything you want. All the gov't can do is punish you afterwards. It is
the existence of laws which would punish you for speaking certain
things which are prior restraint, or else the term has no meaning.
--
Bill Unruh
un...@physics.ubc.ca
Hal
>>v. Edler Industries Inc., 579 F.2d 516 (9th Cir. 1978), precludes a
>>First Amendment attack under O'Brien on the AECA and its accompanying
>>regulations. In Edler the court reviewed a conviction under the
>>predecessor of the AECA for unlicensed exportation of technical data
>>relating to a defense article on the USML. The technical data at issue
>>in Edler related to a technique of tape wrapping with applications for
>>missile components. After finding that "an expansive interpretation of
>>technical data relating to items on the Munitions List could seriously
>>impede scientific research and publishing and international scientific
>>exchange," ~ at 519, the court went on to adopt a narrowing construction
>>to save the statute. 18 Defendants urge that if Edler allows the
>>government to legitimately restrict the export of technical data
>>relating to a defense article, it can certainly restrict the defense
>>article itself. Such an argument is an extension of Edler this court is
>>unwilling to adopt. The validity of the of the munitions list was simply
>>not at issue in that case. While Edler will be instructive to an
>>analysis of the AECA under the First Amendment, it is sufficiently
>>distinguishable on its facts that it cannot preclude plaintiff's
>>challenge at this stage.
I think this is going to be the killer issue. There is already
precedent that forbidding the export of a technical manual which
described a munition device does not violate the First Amendment. This
technical manual was published by the U.S. government and made
available by the Freedom of Information Act! It was a book, written in
the English language, not containing any classified data. Surely that
would have at least as much First Amendment protection as snuffle.c.
Yet the court found that it was within the government's power to forbid
its export, despite the First Amendment.
The case is U.S. v Posey, 864 F2d 1487. The situation was slightly
different because the export was to South Africa, where there were
special restrictions due to its apartheid policies. But for the First
Amendment analysis the issues should be the same.
Here is the part of the decision where they discuss the First Amendment:
VII. FIRST AMENDMENT
Appellant's final argument is that the First Amendment bars the
government from restricting the export of information that is already
available to the public. He insists that the data he sent abroad
was available under the Freedom of Information Act, and therefore
could be legally obtained by virtually everyone in the world. He contends
that the First Amendment prohibits the application of the AECA and
CAAA to the export of such publicly available information.
Our Court has already considered and rejected this argument. In
United States v. Edler Industries, 579 F2d 516 (9th Cir. 1978), we
rejected an essentially identical challenge to the predecessor of the
AECA. The defendant was convicted of exporting certain manufacturing
designs that were on the Munitions List but were not classified. He
challenged his conviction on First Amendment grounds, arguing that the
government could not constitutionally prohibit the export of techno-
logical data that was widely distributed within the United States. In
rejecting that claim, we explained that even assuming that the First
Amendment offers some protection to the dissemination of technical data,
the government has a strong interest in regulating the export of
military information:
The federal government undeniably possesses the power to regulate the
international arms traffic.... As a necessary incident to the power
to control arms export, the President is empowered to control the
flow of information concerning the production and use of arms. The
authority to regulate arms traffic would be of negligible practical
value if it encompassed only the exportation of particular military
equipment but not the exportation of blueprints specifying the
construction of the very same equipment.
579 F2d at 520. We accordingly concluded that the government could
permissibly restrict the flow abroad of data included in the Munitions
List. 579 F2d at 521. Finally, we held that the government's power
to issue such restrictions was not affected by the domestic availability
of the regulated data:
Given the unquestionable legitimacy of the national interest in
restricting the dissemination of military information, the claim of
public availability in the United States is not a defense recognized
by the Constitution.
579 F2d at 522.
Appellant attempts to distinguish Edler from the present case by pointing
out that the exported data in Edler was "cutting edge" technology and
was not widely used in this country. [Citation]. Whether or
not this was factually true of the technology at issue in Edler, however,
the Edler decision clearly assumed for purposes of its decision that
the material was extensively available in the United States. See 579
F2d at 518, 522.
Moreover, we believe Edler should not be read as permitting the govern-
ment to restrict the export of only that information which is not
widely available domestically. Under appellant's reading of Edler,
if the government wished to prevent technical data from being sent to
foreign powers, it would be required to suppress the information alto-
gether, at home as well as abroad. This outcome would blur the fact
that national security concerns may be more sharply implicated by the
export abroad of military data than by the domestic disclosure of such
data. Technical data that is relatively harmless and even socially val-
uable when available domestically may, when sent abroad, pose unique
threats to national security. It would hardly serve First Amendment
values to compel the government to purge the public libraries of every
scrap of data whose export abroad it deemed for security reasons
necessary to prohibit. We conclude that appellant's conviction does
not violate the First Amendment.
Now in the Bernstein case the judge is, for the purpose of this
preliminary decision, distinguishing this case because what Bernstein
wants to export is actual munitions, while the earlier Posey and Edler
cases involved technical data. It seems to me that if anything it ought
to be easier to export technical data than munitions themselves, since
presumably the munitions are a greater threat than mere ancillary data
about them. So given that the First Amendment doesn't even protect
technical data it is hard to see how it could protect munitions.
Hal Finney
Charlie Mingo
> > David, occasionally you deliver a straight line I can't
> > resist. You have heard of the Progressive case right? All about
> > nuclear weapons, free speech, and prior censorship.
>
> The "Progressive" case wasn't about nuclear weapons. It was about plans
> for nuclear weapons, published domestically. As such, it is easily
> distinguishable from "Patel".
You're the one claiming that plans are the same thing as the completed
object. You claim that "source code == object code == the action coded
for". This is how you support your claim that source code is "action" and
not "speech."
> You can publish strong crypto source code domestically all you want.
That is irrelevent for constitutional purposes. The Progressive decision
held that the United States could not impose a prior restraint on
publication of the plans. Licensing requirements for crypto source code
are also a form of prior restraint.
> You can even "Schneier" export it in book form, though in an age of OCR
> that one troubles me.
Only because you define of "speech" to mean "something understandable only
by humans". No court has ever endorsed a negatively-defined concept of
"speech." Rather, they define "speech" in terms of what it IS, not what
it isn't.
> > And for that
> > matter the "Pentagon Papers" case,
>
> Same deal. Domestic publication, not munitions exports.
The jurisprudence concerning prior restraint makes no distinction between
domestic publication and international publication. Indeed, the Pentagon
Papers case clearly encompassed the issue of international publication,
since the government claimed it wanted to prevent the North Vietnamese
from reading the book.
You can't distinguish cases using theories that the courts have never
mentioned. Rather, you would have to find something in the cases that
distinguish "Patel" from the Pentagon Papers, etc, not something you have
made up after the fact.
> You're getting weird on me again, Eachus. This wasn't an export case.
The jurisprudence is that of prior restraint and the First Amendment.
Charlie Mingo
> If I violate your copyright, that creates a civil tort, it is
> not a crime.
Copyright infringement can be criminally punishable (if done "for material
gain"). See below. Non-profit infringement is still only a civil tort.
> But, and this is
> the key point, the only way I could be convicted of a crime would be
> if I violated an injunction against publishing, and was charged with
> contempt of court.
No injunction is required as a predicate for a prosecution under 17 USC 506(a).
§ 506. Criminal offenses
(a) Criminal Infringement. - Any person who infringes a copyright
willfully and for purposes of commercial advantage or private
financial gain shall be punished as provided in section 2319 of
title 18.
Carl Schott
: In article <DqCIt...@psu.edu>, cgsc...@psu.edu (Carl Schott) wrote:
:
: > David Sternlight (da...@sternlight.com) wrote:
: > [...deleted...]
: > :
: > : Leaving that aside, she's left the door open to sustain ITAR with her
: > : music analogy. If music is speech, then the copyright law clearly violates
: > : "Congress shall make no law....". It is justified because elsewhere in the
: > : Constitution and sequentially BEFORE the First Amendment (which puts paid
: > : to another argument that latest counts when prior is not explicitly
: > : repealed), Congress is told to protect the arts and sciences via patents
: > : and copyrights.
: > :
[...deleted...]
: > Perhaps David had just "forgotten" that books, magazines, newspapers,
: > movies, videotapes, TV shows, etc. are also "speech" and copyrighted.
:
: If it's dumb you want, your reply will do fine. it simply emphasizes my
: point--which is that aspects of Article I Section 8 are in contradiction
:
: So how was it, again, that you were going to shoot down the argument? By
: assertion or with logic? So far you've reinforced my argument.
You seem to have forgotten your own argument. You said (text in brackets
provides antecedents to your pronouns for clarity):
Leaving [Patel's "utility value" assessment of the government's
argument] aside, [Patel]'s left the door open to sustain ITAR with her
music analogy. If music is speech, then the copyright law clearly violates
"Congress shall make no law....".
I've discounted the premise of your argument--Patel's "music analogy"
has nothing whatsoever to do with your perception of a conflict between the
Constitution and copyright law. In other words, if this conflict exists,
it exists independent of the validity of the "music analogy". Without that
connection, this supposed conflict has nothing whatsoever to do with
Patel's decision or the subject of this thread. You're just throwing out
another red herring (as you've done with several references to bombs
in other posts on this topic).
I haven't seen anyone in this discussion (with the possible exception
of David Sternlight) even suggest that the First Amendment bans ANY or
ALL government controls on "speech". Even children know better than
that. And since Patel hasn't yet ruled that source code is (either
generally or in this specific case) PROTECTED speech, there is a door
still open to sustain ITAR, at least partially. The bar has simply
been raised for the level of government justification required to
do so. So while a portion of the conclusion you presented
above may stand on other grounds, the argument was invalid, and,
in my opinion, "dumb".
Although the supposed constitutional conflict with copyright law
really isn't relevant to this thread, it does seem to be important
to you, so I'll make a few comments on it. Considering that most of
the same individuals who drafted, debated, approved, and first implemented
government under the Constitution also were involved in drafting,
debating, approving, and first implementing the First Amendment,
and that the courts over 200+ years seem to have had little difficulty
reconciling the two sections you cited, I think that there is no
significant conflict between copyright law and the First Amendment.
And I would further argue, by induction, that the fact that
the law allows copyright to be claimed for source code provides
evidence that it is, in fact, "speech" under the First Amendment.
Can you cite any other example of something for which copyright may
be claimed which is NOT also considered First Amendment speech?
Carl Schott
Brian B. Riley
ecga...@mlode.com (Ed Gallup) wrote:
>>In article <jowx38i...@orchard.medford.ma.us>,
>>somme...@orchard.medford.ma.us (Bill Sommerfeld) wrote:
>>
>>
>>Sheet music, piano rolls, films, etc. aren't Constitutionally protected
>>speech, generally speaking. I... <snip>
> Really? ... and burning the flag, trespassing to demonstrate
>against a private business, painting pictures of someone peeing in the mouth
>of Christ, etc, is free speech? ... something wrong here.
ahhh ... another ignoramus speaks ... burning the flag is the
highest tribute one can pay to the flag. the fact that one can
burn the flag as an expression of protest against something the
government has done or is doing symbolizes what America really
stands for. it is what sets us apart from almost any other nation.
even the other acts while crude, vulgar and often innappropriate
should be protected forms of speech. Tell me, SIR, can you assure
me that you can make these judgements and NEVER allow any personal
prejudices to enter into them????? I think not!
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Brian B. Riley --> http://www.together.com/~brianbr
"If this is the first day of the rest of my life, I am in DEEP trouble!"
David Lesher
>Discussion over.
>To insure that I don't inadvertently respond to future Mingo posts,
>I've added him to my filter file as a self-disciplinary measure.
>Readers will thus understand if I don't respond to any future posts
>by him.
Gads, UnProfessor has scarcely started this cycle & he's ALREADY
running for cover behind a PLONKscreen....
--
A host is a host from coast to coast.................wb8foz@nrk.com
& no one will talk to a host that's close...........(v)301 56 LINUX
Unless the host (that isn't close).........................pob 1433
is busy, hung or dead........vr vr vr vr.................20915-1433
David Sternlight
(Charlie Mingo) wrote:
> da...@sternlight.com (David Sternlight) wrote:
>
> > > David, occasionally you deliver a straight line I can't
> > > resist. You have heard of the Progressive case right? All about
> > > nuclear weapons, free speech, and prior censorship.
> >
> > The "Progressive" case wasn't about nuclear weapons. It was about plans
> > for nuclear weapons, published domestically. As such, it is easily
> > distinguishable from "Patel".
>
> You're the one claiming that plans are the same thing as the completed
> object. You claim that "source code == object code == the action coded
> for". This is how you support your claim that source code is "action" and
> not "speech."
I made no such claim, nor did I use the identity sign "==". You have now
lost all sense of decency in misrepresenting and distorting my position.
Discussion over.
To insure that I don't inadvertently respond to future Mingo posts, I've
added him to my filter file as a self-disciplinary measure. Readers will
thus understand if I don't respond to any future posts by him.
David
David Sternlight
I hate to have to spell it out for the challenged, but:
To be proven:
Patel left the door open to sustain ITAR with her music analogy,
!. The copyright law for music clearly violates 'Congress shall make no
law...' of the First Amendment
2. The copyright law means that part of Article I Section 8 takes
precedence over the First Amendment and "no law" doesn't mean NO law.
3. Therefore there is precedent for her to rule that yet another part of
Article I Section 8 also takes precedence over the First Amendment, namely
Congress' power to regulate commerce with foreign nations, e.g. ITAR.
Q.E.D.
David
Kenneth Arromdee
David Sternlight <da...@sternlight.com> wrote:
>Leaving that aside, she's left the door open to sustain ITAR with her
>music analogy. If music is speech, then the copyright law clearly violates
>"Congress shall make no law....".
This is absurd. After all, books are speech, yet the copyright law allows the
copyrighting of books.
--
Ken Arromdee (arro...@jyusenkyou.cs.jhu.edu, karr...@nyx.cs.du.edu;
http://www.cs.jhu.edu/~arromdee)
"Kermit the Pig?!?!?!?!" -- The Muppet Show
Christopher Davis
DS> I hate to have to spell it out for the challenged, but:
DS> To be proven:
DS> Patel left the door open to sustain ITAR with her music analogy,
DS> !. The copyright law for music clearly violates 'Congress shall make no
DS> law...' of the First Amendment
Now try substituting "speeches" for "music" (and speeches ARE
copyrightable if recorded on a tangible medium, just like music).
DS> 2. The copyright law means that part of Article I Section 8 takes
DS> precedence over the First Amendment and "no law" doesn't mean NO law.
By this logic, the government can censor speeches.
DS> 3. Therefore there is precedent for her to rule that yet another part of
DS> Article I Section 8 also takes precedence over the First Amendment, namely
DS> Congress' power to regulate commerce with foreign nations, e.g. ITAR.
By this logic, the government can prevent you from speaking (with sound)
to foreign nationals under the constraints of ITAR.
Whether your construction is valid or not will be tested in court. The
issue of "music" is irrelevant; either the ITAR allows the government to
censor speech ("'National security' is the root password to the
Constitution") or it is an unConstitutional restriction thereon.
I note that First Amendment jurisprudence has found what most people
consider "reasonable" exemptions for libel/slander, copyright violations,
and the like without seriously weakening the protection of speech that
does not fall under those categories. I note that snuffle.c is not
libelous nor is it a copyright violation.
--
Christopher Davis * <c...@kei.com> * <URL: http://www.kei.com/homepages/ckd/ >
"As this court has noted above, cryptographic source code is speech."
--Judge Marilyn Patel, U.S. District Court, Northern District of California
(in Bernstein v. U.S. Department of State)
Christopher Davis
DS> == David Sternlight <da...@sternlight.com>
DS> Putting it another way, if you give a human the plans, he can't use
DS> them to hit you over the head (well, unless they're pretty big and
DS> rolled up). He can only use them to make a bat, which itself just
DS> sits there. But if you load the code, the computer _can_ use it to
DS> erase your hard disk.
Ah. We should all use out-of-the-box Solaris 2.x systems in order to
protect our free speech (in the form of source code), then.
Y'see, Solaris 2.x systems don't *include* a compiler or interpreter for
the C language. Therefore C source code stored on those systems is not
"functional" in the sense that you use the term, and therefore is not
covered by the "functionality exemption" to the First Amendment that you
claim.
Oh, and about that "functionality exemption": Judge Patel says "Contrary
to defendants' suggestion, the functionality of a language does not make
it any less like speech." and "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. Its support in First Amendment law is nonexistent."
Perhaps you could assist the Department of State by supplying your cites
for cases which support your point of view on this issue.
Christopher Davis
DS> == David Sternlight <da...@sternlight.com>
DS> The "Progressive" case wasn't about nuclear weapons. It was about
DS> plans for nuclear weapons, published domestically.
The magazine was export-controlled? It was a felony to read that article
to a foreign national? I doubt it.
The same applies to the Pentagon Papers. Was the New York Times
export-controlled for that issue? Unlikely. Did the daily delivery to
consulates or UN missions get stopped by the Feds? You tell me...
William Unruh
>I hate to have to spell it out for the challenged, but:
>To be proven:
>Patel left the door open to sustain ITAR with her music analogy,
>!. The copyright law for music clearly violates 'Congress shall make no
>law...' of the First Amendment
She did not leave the door open by her music analogy. The door was
never closed. There a huge amount of case law stating that the first
is not absolute, no matter what it says. "Fire", sedition, libel,
copyright, .... are all violations of your strict interpretation. This
has been hashed out here numerous times in the past few weeks. Perhaps
you should adjust your filter so that you do not make purile forms of
arguements that have been much more cogently made by others.
>2. The copyright law means that part of Article I Section 8 takes
>precedence over the First Amendment and "no law" doesn't mean NO law.
>3. Therefore there is precedent for her to rule that yet another part of
>Article I Section 8 also takes precedence over the First Amendment, namely
>Congress' power to regulate commerce with foreign nations, e.g. ITAR.
There is a huge load of such precident. Yes, even given her ruling
that source code equals speech, she could still find that ITAR's
restriction on crypto software stands.
The only thing is that the tests of what kinds of limits are
acceptable are far more stringent on speech than they are on atom
bombs or CNF. That is the victory in her ruling.
>Q.E.D.
>David
--
Bill Unruh
un...@physics.ubc.ca
William Unruh
>In article <david-22049...@nntp.netcom.com>,
>David Sternlight <da...@sternlight.com> wrote:
>>Leaving that aside, she's left the door open to sustain ITAR with her
>>music analogy. If music is speech, then the copyright law clearly violates
>>"Congress shall make no law....".
>This is absurd. After all, books are speech, yet the copyright law allows the
>copyrighting of books.
Not absurd, just silly. He is trying hard to make the point that the
First is not absolute. Since the courts have never ever interpreted
the First as absolute, he is flogging an imaginary horse.
--
Bill Unruh
un...@physics.ubc.ca
Rick Heylen
William Unruh <un...@physics.ubc.ca> wrote:
>
>Not absurd, just silly. He is trying hard to make the point that the
>First is not absolute. Since the courts have never ever interpreted
>the First as absolute, he is flogging an imaginary horse.
Or even setting up a straw man to knock down and then flogging his imaginary
horse. ;-)
Rick
Seth Finkelstein
>Judge Patel has decided that source code is language is speech protected
>by the Constitution. Let's suppose the decision stands.
>
>Then she has placed us in a situation very like that we've been in with
>respect to guns and gun control. That is--her decision creates a
Hmm, this is actually pretty clever bit of rhetoric. It's the
"cryptography as munitions" argument turned on its head. Anyone who's
been following this debate for any length of time has heard the
net.libertarian bit about "The government says cryptography is arms,
and the Second Amendment says I have the right to keep and bear arms,
so the Second Amendment protects my right to use strong crypto" (n.b. I
am *not* endorsing this reasoning, simply mentioning its frequent
appearance). Well, the above is an inversion of that, roughly "Liberals
believe in gun control, perhaps even gun bans, despite the "shall not be
infringed" part of the Second Amendment, so [charitably: won't we have
the same problem with | less charitably: shouldn't Liberals also support]
government crypto control, perhaps even strong crypto bans, despite the
"shall make no law" part of the First Amendment?"
It looks a lot like a troll of support for crypto controls,
trying to weaken Liberal support of the application of the First
Amendment by drawing on (some) Liberal disdain for invocations of the
Second Amendment. Assault algorithms, anyone? There's a thread of crypto
is like guns, so if you don't want personal gun ownerships, you wouldn't
want personal crypto ownership, e.g.:
>follow, and we'd be in the same situation of turmoil that surrounds the
>tension between the "right to keep and bear arms" and gun control
>legislation. We'd be thrust into the same ideological dilemma between
>public safety and Constitutional protections we are with guns.
Note the "turmoil" is created by an explicit judicial
recognition of Constitutional applicability to the issue. Without that,
there's presumably no "turmoil", because the courts haven't ruled it
part of an area where government action is constrained (and the people
advocating it be so can be mocked by saying the courts don't agree with
them). But now that there is such a ruling, there is indeed a problem
for those who want to impose restrictions in the name of "public safety".
I definitely see where they see a problem.
>Only the attorneys and lobbyists would benefit.
Another hot-button.
Most Usenet "personalities" of David Sternlight's level of
reputation are very repetitive. But I have to compliment him on his
ability to ring changes on his themes. It's rare to see originality in
construction of such arguments. If he's a paid NSA shill, they're getting
very good value for their money :-).
--
Seth Finkelstein se...@mit.edu
Disclaimer : I am not the Lorax. I speak only for myself.
(and certainly not for Project Athena, MIT, or anyone else).
Irclark
>
>Sure it does. Congress made a law regarding speech. I can't speak "Eleanor
>Rigby" without permission of the copyright holder. That the law has
>exceptions (fair use, permission), is irrelevant. What part of "NO law"
>don't you understand? It's a clear contradiction to several arguments, and
>establishes by example:
>
>1. "No law" doesn't really mean "no" law when other provisions of the
>Constitution are involved.
>
>it senior to that provision. The provision must be explicitly repealed or
>modified to make that so.
David has argued on numerous occasions that the Amendments do not supersede
the provisions of the Constitution (unless explicitly stated). I don't
buy the argument, but I am not attempting to refute it here. What I will
argue is that Copyright law is not proof that David is right.
Copyright law does conflict with the literal "no law" stated in the first
amendment. Unfortunately for those of us who like to construct logical
arguments with simple boolean values, none of the First Amendment
provisions are taken literally. Concepts such as "protected speech"
and "compelling interest" are read into the First Amendment even though
they appear nowhere within the actual text. Once the burden of literally
interpreting the First Amendment is removed, there is no need to postulate
that the First Amendment does not supersede earlier Articles and provisions
of the Constitution.
For the case of copyright law, we can resolve the "apparent" conflict by
defining copyright infringements as non protected speech or by citing a
compelling government interest, etc.
Although the difference between a non literal and a superseded First
Amendment may seem moot, the difference is what gives us any First
Amendment at all. What good is a restriction against the laws that
Congress may pass that Congress can ignore nearly anytime they want?
Isaac
Lulu of the lotus-eaters
: The "Progressive" case wasn't about nuclear weapons. It was about plans
: for nuclear weapons, published domestically. As such, it is easily
: distinguishable from "Patel". You can publish strong crypto source code
: domestically all you want.
Does the Sternlight-bot somehow suppose that readership of _The
Progressive_ was kept out of the hands of foreign nationals in the USA?!
(as ITAR would require). Does it somehow think that _The Progressive_ is
not distributed outside the USA?!
Yours, Lulu...
--
quilty@ _/_/_/_/_/_/_/ THIS MESSAGE WAS BROUGHT TO YOU BY:_/_/_/_/ v i
philos. _/_/ Postmodern Enterprises _/_/ s r
umass. _/_/ MAKERS OF CHAOS.... _/_/ i u
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Carl Schott
: I hate to have to spell it out for the challenged, but:
:
: To be proven:
: Patel left the door open to sustain ITAR with her music analogy,
:
: !. The copyright law for music clearly violates 'Congress shall make no
: law...' of the First Amendment
:
: 2. The copyright law means that part of Article I Section 8 takes
: precedence over the First Amendment and "no law" doesn't mean NO law.
:
: 3. Therefore there is precedent for her to rule that yet another part of
: Article I Section 8 also takes precedence over the First Amendment, namely
: Congress' power to regulate commerce with foreign nations, e.g. ITAR.
:
: Q.E.D.
:
:
: David
Well, I and others have already pointed out the irrelevance and
silliness of your attempt to bring a supposed conflict between the
First Amendment and copyright law into the question of whether
or not source code is speech, so I won't cover that ground again.
Just for laughs, though, I'll quote something you wrote elsewhere
in the discussion of Patel's decision as my response to point 1:
"Right. Which court is that? I can vamp philosophically, too, but
it has no legal standing."
There is an additional point that needs to be made regarding your
argument, though. It seems to me that you assume that in her "analogy",
Patel somehow implied that music is speech. She didn't. Here's the
relevant section of her opinion, courtesy of Phil Karn's earlier post:
"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. Its support in First
Amendment law is nonexistent."
Are you assuming that "language [which] allows one to ... play music"
is the same thing as music? It isn't. I see no other statements
in her ruling that could reasonably be construed to imply that
"music is speech".
Interestingly, you also fail to make a similar distinction in
your computer virus analogy--in that case between "language which
allows a computer to do damage" (the virus) and "damage".
Carl Schott
Stephen Brinich
>
> In article <mingo-24049...@news.panix.com>, mi...@panix.com
> (Charlie Mingo) wrote:
> > You're the one claiming that plans are the same thing as the completed
> > object. You claim that "source code == object code == the action coded
> > for". This is how you support your claim that source code is "action" and
> > not "speech."
>
> I made no such claim, nor did I use the identity sign "==". You have now
> lost all sense of decency in misrepresenting and distorting my position.
> Discussion over.
Nonsense. Mr. Sternlight's entire argument rests upon the claim that the
source code is equivalent to the program -- which is, in turn, equivalent to
the claim that the blueprints are equivalent to the object represented.
> To insure that I don't inadvertently respond to future Mingo posts, I've
> added him to my filter file as a self-disciplinary measure. Readers will
> thus understand if I don't respond to any future posts by him.
Really, now, your references to your "sticking my fingers in my ears and
yelling NEENER NEENER NEENER" file are getting rather stale.
--
Steve Brinich | If indecent electronic transmissions | Finger PGP key
ste...@digex.net| are illegal, |89B992BBE67F7B2F
GEnie: S.BRINICH | why are they still showing C-SPAN? |64FDF2EA14374C3E