Code as Free Speech

via Swaptik Chowdhury

The price of cryptocurrencies such as Bitcoin and Dogecoin has surged in last couple of months and has reinvigorated the discussion around “is code free speech”. The argument is that Bitcoin is code, code is speech and thus, is constitutionally protected under first amendment.

The “code as free speech” argument is pretty settled. The “code as free speech” was introduced in public discourse in 1999 after Eric Crowley along with 3 other defendants were sued by eight movie studios for publishing a source code for decrypting DeCSS (used to protect DVD copies). The judgement was affirmed by US court of appeals for the second circuit upon appeal but in the briefs, the appellate court agreed that the computer programs (source or object code) are “forms of protected speech”. The similar decision was rendered by Ninth Circuit of Appeals in the case of Bernstein vs Unites States where a cryptographer named Daniel Bernstein sued the government in 1995 for the right to make public certain cryptographic programs. In a more recent case, State Department and US government under President Trump settled a case with a company called Defense Distributed which wanted to provide an open source design for 3D printed guns. The case was settled after justice department cited first amendment protection. But, the laws around cryptocurrency are not straightforward.

The lawyers of Institute of Justice in this podcast argue that the cryptocurrency and the blockchain technology would have first amendment protection but could be regulated depending upon the function. The constitution provides first amendment’ free speech protection to the cryptocurrency code to the extent that it is being used for communicating ideas. But government can regulate it when speech transcend into conduct and constitutes an action. To extend the argument, the cryptocurrencies would be regulated for the function or action they are used to achieve and not for their expressive content.

There are growing concerns of cryptocurrency being used to fund illicit and terror activities. Thus, the focus should be on creating legal certainty with informed regulation and public literacy to promote innovation in blockchain and cryptocurrency technology.   

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