alt Hacker NewsCode is speech, though, and is protected by the first amendment: see Bernstein v. United States.
I don't think a cryptographic algorithm is "expressive" any more than it is purely functional; indeed, the 9th circuit evaluated and rejected the expressive/functional distinction for source code in the above case.
Regardless - code is speech, and the government cannot compel or prevent speech except in very narrow circumstances.
Replies
johncolanduoni • yesterday at 5:55 AM
Very narrow circumstances like the DMCA? I don’t think the jurisprudence is as simple as you’re making it out to be.
LoganDark • yesterday at 5:57 AM
Code may be speech, but the functional characteristics of systems that happen to rely on code may not always also be speech.
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> Code is speech, though, and is protected by the first amendment: see Bernstein v. United States.
That is very much overstating the holding in the case [0], the most relevant part of which seems to be:
“encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes”
The ruling spends a key bit of analysis discussing the expressive function of source code in this field as distinct from the function of object code in controlling a computer.
A law compelling providing functionality which it is merely most convenient to comply with by creating source code as part of the process is not directing speech, any more than an law delivery of physical goods where the most convenient method of doing so involves interacting by speech with the person who physically holds them on your behalf is.
[0] text here: https://law.resource.org/pub/us/case/reporter/F3/176/176.F3d...