Summary

In this case, the court held that source code language, like music and foreign languages, is speech protected by the First Amendment.

Analysis

In Bernstein, the United States District Court for the Northern District of California determined that source code is speech within the purview of the First Amendment. The plaintiff brought this claim to challenge the constitutionality of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR). The defendant determined that the plaintiff’s encryption and decryption software were subject to licensing under AECA and ITAR prior to export. The plaintiff alleged that the licensing requirements violated his First Amendment rights in that they were a content-based infringement on speech, acted as an unconstitutional prior restraint on speech, were vague and overbroad, and infringed on his right of association and equal protection. Specifically, the plaintiff alleged that, because the definition of "export" included disclosing the technical data to a foreign person whether in the U.S. or abroad, he could not teach the algorithm, disclose it at academic conferences or publish it in journals or online discussion groups without a license.

Because the federal statutes prohibited judicial review of the defendant’s determinations under the statute, the court could only hear plaintiff’s claim if it challenged the constitutionality of the statutes themselves. Therefore, the court had to determine if the plaintiff had a colorable constitutional claim.

In determining the colorability of plaintiff’s claim, the court found that source code is speech because it is a language. Rejecting the defendant’s argument that source code is conduct similar to flag burning, the court analogized source code to music and foreign languages which are protected speech. Further, the court stated that copyright law, designed to protect original expression, protects computer software as a literary work which lends additional support for the expressive nature of computer programs. Although the court determined that source code is speech, it made no judgment on the merits of plaintiff’s First Amendment claim.