Code as speech

In 1977, the United States began restricting non-governmental uses of cryptography. The restrictions began when a member of the National Security Agency sent a letter to the Institute of Electrical and Electronics Engineers (IEEE) warning that the presentation material at a Cornell cryptography conference might violate weapons export regulations.^[4] In the early 1990s, the U.S. government started to more actively enforce that strong encryption software was a munition under export regulations, meaning it could not legally be shared overseas without a license.^[5] This classification of encryption as munitions was strongly opposed by computer scientists as well as civil liberties, privacy advocates, and cypherpunks who argued that encryption algorithms were mathematical ideas and publishing source code should be protected as speech.^[5][6]

Activists printed cryptographic code on T-shirts, mugs, posters and more as a way of demonstrating code's expressive utility and protesting what they viewed as censorship.

In Bernstein v. United States, the Ninth Circuit Court of Appeals ruled that source code is a form of speech protected under the First Amendment. A lower court ruling on this case reasoned, "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."^[7] The case was brought by mathematician Daniel Bernstein who challenged these export controls after the government prohibited him from publishing his encryption algorithm, Snuffle.^[8] Bernstein was represented by the Electronic Frontier Foundation (EFF), which has since played a major role in digital free speech litigation.^[9]

This decision established code as speech as a legal precedent that became central to later legal disputes. In 2015, the United Nations issued a report stating that access to encryption software is a human right.^[10]

In 2016, the FBI sought to compel Apple to create special software to bypass security on an iPhone used by the San Bernardino shooter.^[11] Apple refused, arguing that the code itself is expressive and compelling software engineers to write it would violate the First Amendment's ban on compelled speech.^[12] The dispute ended when the FBI unlocked the device by other means, but it remains a landmark legal dispute over code's status as protected expression.

In the 2010s and 2020s, debate began to ensue about whether Bitcoin constituted code protected as speech. Proponents argue that Bitcoin's source code and protocol are themselves political statements about decentralization, censorship resistance, and distrust of centralized authority.^[13] Some legal scholars and activists argue that publishing or running Bitcoin software is inherently protected speech because it expresses economic and ideological beliefs and because it is code.^[14][15]

In the 2020s, U.S. authorities began to target developers of open-source privacy tools that interface with blockchains. In 2022, the U.S. Treasury sanctioned Tornado Cash, an Ethereum mixing protocol.^[16] Critics of this sanction argued that this constituted a sanction of the code rather than the criminal use.^[16] The EFF also defended the Tornado Cash developers arguing that publishing open-source privacy tools is protected expression.^[17] The prosecution of Tornado Cash founder Roman Storm continues to be ongoing under the Trump Administration with chief legal officer of the crypto firm Variant stating, “This really is a vestige of the Biden administration’s war on crypto,” and that, "It’s shocking the case is still moving forward.”^[18]

In 2024, Keonne Rodriguez and William Lonergan Hill, the developers of Samourai Wallet, a Bitcoin privacy tool that uses Coinjoin to mix transactions, were indicted.^[19] Critics of this action argued that the government was using stopping criminal activity as a justification to instead target code as speech.^[20]

In 2013, Cody Wilson and his group Defense Distributed published the CAD files for the Liberator, a 3D-printable gun.^[21] The U.S. State Department ordered him to remove the files, triggering a legal battle with Wilson arguing that the code constitutes protected speech.^[22][23] In the lawsuit, DD argued that it “believed, and continues to believe, that the United States Constitution guarantees a right to share truthful speech. Especially speech concerning fundamental constitutional rights in open forums.”^[24]

Wilson also developed the Ghost Gunner, a small CNC milling machine that can finish metal gun parts.^[25] DD portrayed the project as technological activism and a First Amendment test, asserting that restricting code files or machine instructions amounts to censorship.^[26][27] Supporters argue that publishing design files, similar to publishing encryption algorithms, is expressive conduct.^[28][29]

In 2007, an AACS encryption key was developed. This is a hexadecimal number used to bypass digital rights management (DRM) on HD DVDs.^[30] It was posted widely on Digg.com, causing a controversy.^[31] The movie industry sent takedown notices to Digg.com under the Digital Millennium Copyright Act (DMCA).^[32][33] Digg.com's site administrators attempted to prevent users from posting links revealing the encryption key. Users subsequently resisting this action by mass posting the key onto the site.^[34] One user coined this occurrence as a "digital Boston Tea Party."^[34]

Activists went so far as to create the Free Speech Flag: a symbolic image whose color values encode the banned key.^[35] The flag became an emblem of digital rights protests, highlighting how even a short number or snippet of code can carry political meaning and be treated as illegal.^[36]

The fight over the AACS key also impacted debates on piracy, intellectual property, and fair use.^[37] Particularly, whether sharing code that defeats copy protection, even just as a statement or an artistic form, is First Amendment protected speech. In the DRM and piracy debates, the EFF has criticized takedown demands and the DMCA's anti-circumvention provisions as unconstitutional restrictions on speech, especially when they target publication of code or encryption keys.^[38][39]

• Digital rights
• Junger v. Daley