Quick quiz. Which of these should not be protected as free speech?
[ ] A gun (you know, the kind you can hold and shoot)
[ ] Plans for a nuclear weapon
[ ] Political statements (lots and lots of them)
[ ] Detailed instructions on how to communicate privately
[ ] Detailed instructions on how to make an archival, digital copy of a DVD
The answer is either none or all of the above - we are in a world where free speech (in the form of computer code) can create real world objects and actions that are themselves regulated or outright illegal. But if the action is illegal, is the code that causes it also illegal? If so, the line gets very blurry very quickly. If not, we still have some fascinating problems to deal with, like printable guns. Regardless, we need to educate policy makers to understand this digital frontier and be prepared to defend free speech when this gets unpleasant. Spoiler: It's already unpleasant. Our world is defined by code, where programmed actions have very real, tangible effects.
Code of Protest
Civil disobedience can take some weird forms. While today masked digital vigilantes of Anonymous act as a curious type of Internet immune system; reacting against gross infringements of cyber liberty, their methods are not as new as you might think. In the late 90s, the Electronic Disturbance Theater (http://en.wikipedia.org/wiki/Electronic_Disturbance_Theater) was supporting the Zapatistas by flooding Mexican government sites with a rudimentary DDoS (Distributed Denial of Service) attack, which brings a webserver down by overloading it. This concept is at the heart of LOIC, Anonymous's "Low Orbit Ion Cannon" (http://en.wikipedia.org/wiki/Low_Orbit_Ion_Cannon). EDT's version, "Floodnet," had the nice touch of requesting webpages with names like "human rights" from the government sites, resulting in errors clogging up the server reading something like "404 - human rights not found." Asking for a webpage is pretty clearly something akin to shouting at a rally, or a "cyber sit-in" (http://angelingo.usc.edu/index.php/politics/cyber-sit-ins-grassroots-to-gigabytes/) - get enough people to do it, and it causes some level of annoyance - but it's still an act of speech.
Free speech and a dead-end for copy controls
More compelling is the story of decss. CSS, an acronym now known as a web design tool, also means Content Scramble System, and is how DVD content is locked down. Only authorized hardware and software can decrypt a DVD and play it. This theoretically prevents wanton piracy, but it also prevents you from exercising your rights of fair use, backing up, or watching on a device of your choosing.
Fortunately, CSS was not particularly well crafted, and was quickly and thoroughly broken with a chunk of code nicknamed decss by a Norwegian teenager nicknamed "DVD Jon". This caused a slight bit of controversy. DVD Jon was accused of theft in Norway, and users in the States were threatened with fines and jailtime for re-distributing it under the DMCA law.
In a predictable story arc, the next chapter of this story is of course the Internet digerati of the day getting royally teed off and causing a ruckus. The source code of decss was immediately turned into graphic art, secretly embedded in photos, turned into poems, and even a song (http://www.youtube.com/watch?v=GekuuNqAiQg) - a gallery of creative works using or containing the decss code remains online: http://www.cs.cmu.edu/~dst/DeCSS/Gallery/ . DVD Jon won his case (http://news.bbc.co.uk/2/hi/technology/3341211.stm) and we all celebrated the somewhat obvious win for free speech and consumer power.
Private speech and munitions export controls
We can rewind even further back to the early 90s, when Phillip Zimmerman published the entire source code of his powerful encryption tool, PGP, in a book (of the paper, box-shaped physical object type). Now, encryption this powerful was classified (until 1996) as a "munition" and subject to export controls with the types of penalties you might expect for selling military equipment on the black market. Had PGP been released as a program, it would obviously fall into this categorization. As text in a book, however, it appeared to be protected as free speech. The stupidity of the distinction of course also spurred many to make t-shirts and code snippets of this "illegal" code. Eventually, a series of court cases (Bernstein v. United States, Junger v. Daley) establishing that source code, indeed, counts as free speech.
Free speech and real munitions
Fast forward back to today, and the distinction between code and munitions is again somewhat unclear - with 3D printers, you can even begin building core pieces or real munitions - like, well, guns (http://www.wired.com/dangerroom/2012/08/3d-weapons/
), based on digital blueprints and DIY-enthusiast at-home 3D printing kits. For anyone who doubts that print-at-home guns couldn't possibly be thought of as pure expressions of free speech, covered by copyright laws and software licensing more than gun laws, I recommend browsing through this video and transcript; (http://hardware.slashdot.org/story/12/09/04/1837209/should-we-print-guns-cody-r-wilson-says-yes-video#media
)with the clear excitement around innovation and failure-as-a-feature in the gun printing market by Cody Wilson of Defense Distributed.
Code is speech, code is reality.
The kicker here remains that code - that mysterious language that creates everything from Skype (now illegal to use in Ethiopia, with up to 15 years of jailtime) to your bank's software to this webpage - is also, at its core, just ideas and language. Now, disruptive ideas have always been a bit dangerous, and we have a long, if rarely permanently successful history of ways to limit, erase and squelch them. But ideas that themselves are actions are another thing altogether.
In linguistics, you have the concept of "Illocutionary Acts" - acts which are embodied in language. There aren't many - no matter how I say that I'm going to go for an after-work run, the act of running can only be done by my whole body. Oaths are the best example of these acts - speaking the oath is making the oath, and that combination of idea and action is a powerful sentiment.
And every line of code can be just as powerful.