Unlike all other forms of “speech” that are protected under the First Amendment to the U.S. Constitution, computer source code holds a unique place in the law. Computer source code can be copyrighted, like a book. And it can be patented like a machine or a process. The result is confusion in the legal arena, with case law, intellectual property law and encryption export regulations all reflecting this contradictory dichotomy. There are currently three cases before three separate federal courts that address as their core issue whether code is speech. The issue is important because of government regulations that seek to limit citizens’ access to strong encryption technology. Researchers Jean Camp and Ken Lewis strongly make the case that code is speech, and that government efforts to prevent citizens from having encryption software is unconstitutional.
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