From the British “great defamation” to the cypherpunk movement, explaining how code became part of freedom of speech.
Further reading:
” How does the law protect data privacy and Internet development? From the American Constitutional System
” An Overview of the 50-Year Evolution of the Internet: From Early Experiments to Mobile Internet “
Original Title: “Lawyers and Hackers | #3 First Amendment: Freedom of Code and Speech”
Speaker: Gu Ziyi, Master of Environmental Science, Doctor of Law, University of Illinois at Urbana-Champaign
This article is compiled from the intensive online course of the Institute of Network Society, School of Intermedia Art, China Academy of Art
Just like compass, gunpowder, and printing, the emergence of the Internet has not only completely changed the way human information is transmitted, but has also promoted changes in the organizational structure and ideology of the group from a deeper level and broader field. However, the Internet as we see it today does not happen overnight: from the birth of ARPANET for military purposes, to the emergence and popularization of the World Wide Web, to the landing of a large-scale industrial Internet, in addition to technical personnel, academic and commercial People from all walks of life such as, industry, politics, etc. have shown their talents, and jointly shaped today’s Internet. Among them, legislators and legal workers have also played a pivotal role in promoting and guiding the development of the Internet. For example, they advocate that code should be equivalent to speech because they are protected by constitutional amendments and require users to treat modified derivative works as equivalent. The release of authorisation rights to give back to the society, etc., have all demonstrated the innovation and wisdom of legal workers.
The famous Italian historian and philosopher Benedetto Croce once said that all true history is contemporary history. A systematic review of the development of Internet technology, as well as a series of legislative and judicial evolutions that occurred in the process, will help us understand the laws of cultural and social changes, summarize and refine the experiences and lessons, whether it is for us to respond to the present The challenges of the times and the resolution of the predicaments that may be faced in the future are of very important significance.
In the first week, I talked about some legal foundations, and in the second week, I talked about a relatively brief history of the Internet. Today we begin to enter the first part of the text-the First Amendment. Today’s content will be the same as next week’s content. Today we are going to talk about the First Amendment, and next week we will mainly talk about the Fourth Amendment.
Generally speaking, the first reaction many people hear about the First Amendment is freedom of speech. In fact, the First Amendment includes some other things in addition to freedom of speech. The full text says: “The Congress shall not enact laws on the following matters, establish the state religion or prohibit freedom of religion, deprive freedom of speech or freedom of the press, or deprive the people of the right to peaceful assembly and petition to the government.” There are 3 concepts in it. One talks about freedom of religion; the second talks about freedom of expression, because freedom of the press is actually a form of freedom of expression; the third talks about freedom of assembly. This is also the first article of the bill of rights. Today we are mainly talking about the concept of freedom of expression. Regarding freedom of religion and freedom of assembly, if you are interested, you can ask me questions afterwards. In fact, these two areas are quite interesting. Because although the U.S. is a so-called Protestant country, when I first went to the U.S., I thought that most people in the U.S. believed in Christianity. Later, the more interesting thing was that I would find that there were actually many Americans in that place who believed in Buddhism. of. Of course, the United States still has a lot of strange and messy things that look like cults.
In addition, our main content today is about the concepts of freedom of speech and freedom of expression. Yesterday I showed you two cases, and we are now writing both cases here. The first is about Ku Klux Klan, and the other is about Trump. I also told you yesterday, I hope you think about the problem before class, my class will ask questions.
Case number one:
In 1964, a branch leader of the KKK, a racist organization, was arrested for giving a speech advocating violence on television. He not only insulted African Americans and Jews in his speech, but also threatened that “if our President, Congress and Supreme Court continue to suppress Caucasian whites, we will take certain retaliatory actions.”
Question 1: Do you think such speeches should be protected by freedom of speech? why?
Case 2:
Since Trump took office, the new game of “Twitter governing the country” has allowed him to quickly grow into a new generation of “net celebrities.” From Twitter’s attack on “fake news” to Twitter’s dismissal of the Secretary of State, many of his policies and diplomatic events were announced through Twitter. In 2018, 7 users who were blocked by Trump on Twitter filed a lawsuit in the court, claiming that Trump’s actions to block dissenting fans on social media Twitter violated the First Amendment of the U.S. Constitution.
Question two:
Do you think Trump’s actions violated “freedom of speech”? why?
Katt:
Let’s look at the first one. Regarding the case of the KKK, I want to ask how many people feel that such speeches are not restricted. Why do you think that such speeches should be protected by the Constitution, or not?
Student 1 answers:
I simply think it violates the most basic human rights equality. How to say? The bottom line, I think it needs to be restricted even if you protect freedom of speech.
Katt:
You mean that if there are discriminatory remarks, it is not acceptable. I will talk about how this case was decided later, but I want to know what everyone thinks first. Of course, I certainly feel that such remarks should not be protected by the Constitution. But in fact, the real law may be different from what everyone thinks.
Katt:
Let’s look at the second case, which is related to Trump. It is also easier to understand, because Trump is posting things on Twitter. The defendant is also very normal. How many students feel that Trump’s actions violated freedom of speech and violated the First Amendment. Please raise your hands if you think Trump’s actions violated. Now I want to talk about one of these classmates who didn’t think Trump violated.
Student 2 answers:
Hello, teacher, I’m here to answer, I will feel more like a personal behavior. It is difficult for him to determine whether he represents the US government or himself, so I feel that it may not violate.
We just talked about two cases, the first is the KKK case, and the second is the Trump case. In fact, these two cases are real cases. The first is a very famous case that occurred in 1969, a very famous case in the history of freedom of speech in the United States, called Brandenburg v. Ohio (Brandenburg v. Ohio). First, the Ohio court arrested Brandon under the Organized Crime Prevention Act, saying that you cannot encourage others to commit crimes. After being arrested, Brandon was sentenced to a $1,000 fine and 10 years in prison. 10 years of imprisonment is considered to be very long, and $1,000 was also a very large amount at the time. Brandon was very angry, and he took the case to the Supreme Court. Brandon felt that this law was unconstitutional, so why shouldn’t he hate blacks and Jews? On June 9, 1969, the Supreme Court unanimously ruled that the Ohio law was unconstitutional. The ruling stated that: the Constitution guarantees freedom of speech, unless the speech is aimed at inciting others to “immediately” violate the law or produce “immediate” illegal actions, and the claim may indeed incitement or produce such “immediate” illegal acts. If when I was speaking, for example, I am now on the zoom platform, and I told you all that I was going to do something that might be a crime, such remarks are actually protected by speech. However, if I really stand and gather a group of people, for example, I am in front of an enemy’s house, I will tell you: This person is a bad person! What should I do? This kind of crime that can produce “immediate” is not protected. In fact, this case changed the boundary of freedom of speech to a very wide point.
The second case is a case in 2019, called Knight First Amendment Research Institute v. Trump (Knight First Amendment Research Institute v. Trump). Knight’s First Amendment Institute is a very famous First Amendment Institute in the United States. The ruling made in July last year, but it did not reach the Supreme Court, was the Second Circuit Court of Appeals of the United States who ruled that if a public official uses social accounts for official purposes, he cannot because of the First Amendment. Don’t let others comment on him, and Trump finally lost the case. At that time, the Ministry of Justice issued a message saying that it was very disappointed with the judgment of the Second Circuit. But we feel that Trump is still not wrong. Anyway, he still refused to admit his mistakes. This can be imagined. But there are also Trump supporters who say that although he is the president, when he uses his account, although he will post a lot of content about his position, for example, I want to fire Fauci, maybe I will post something like this Content. In fact, most of the time he speaks is actually talking, playing his own Twitter, which is not an official purpose. There are also many people who feel that when the president is not allowed to use their Twitter casually, it narrows the boundaries of freedom of speech.
Today we are mainly discussing two issues. The first one is what is the boundary of speech . In this section, I will talk about how the concept of freedom of speech comes from. In the second part, I will talk about how the code becomes part of freedom of speech. .
First of all, I want to talk about the origin of freedom of speech. The United States is the first country to write freedom of speech into the Constitution. Before the United States, everyone would discuss concepts, but in fact, there was no freedom of speech in their constitution. However, the United States is the first country to really write freedom of speech into the constitution.
Why does the United States write freedom of speech into the Constitution? There is actually a very interesting background. The background goes back to the earliest words, starting with the big slander in the British common law. In the earliest days, before the Americas were colonized, Britain had a crime called “great libel.” All false or erroneous news or expressions that harm the reputation of the ruling class and cause social disharmony can be criminally punished, regardless of the speaker. Is it a commoner or an internal member of the ruling class?
The reason for introducing the crime of defamation was not to punish the spread of false information, but to protect the interests of the ruling class. Because ordinary people were not allowed to speak ill of kings and nobles at that time, during the time of James I, the crime of libel became a core of British criminal law.
During the time of Elizabeth I, a well-known jurist Sir Edward Coke explained why defamation was convicted. He talked about three reasons: First, slander against private persons will cause revenge and undermine social harmony and should be severely punished; second, slander against nobles and officials is more criminal, because it will not only destroy social harmony, And it will jeopardize the prestige of the government; the third one is more important. Even if the so-called “defamation” is proved to be not a false statement, it can still be punished for the sake of maintaining social stability and maintaining the prestige of the government.
Even if you tell the truth, for example, the officials are really embezzled, and in the end things are found to be true, then you will damage this kind of prestige and you will lose face. At that time, in the crime of criminal defamation in the UK, the authenticity of the speech was not a reason for exoneration. What you said is true, and you can’t escape from sin. Because the king was in power with the nobles at that time, the civilians did not have much opportunity to argue in court, saying that because what I said was true, you should not punish me.
By the end of the seventeenth century, British colonists came to North America across the Atlantic. The first colony, Virginia, was established on the east coast of North America. At that time, it was to maintain the rule of the American colonies, suppress the development of North American power, and the rise of some merchants and landlords. The British also introduced a similar crime of defamation in the colonies. One charge is called “anti-sedition to libel.” In order to combat political opinions, they cannot oppose the British king.
Under this historical background, a very famous case occurred, called The Zenger Case (The Zenger Case). It was not only a landmark public opinion lawsuit during the American colonial period, but was also hailed as the beginning of the epic poem for the United States to fight for independence and freedom. This was a very big case at the time. Let me now talk about its background.
In 1731, the British governor in the colonies died of illness. According to the administrative tradition of Britain and the colonies, the elected president of the House of Representatives, then the leader of the Republican Liberal Party, Van Damme, acted as the acting governor of New York according to law. A year later, the King of England appointed another Englishman, Sir William Cosby (Sir William Cosby), who had a very bad reputation. The so-called very corrupt official, his best thing is to form a party for private business, desperately making money, the first thing he did after taking office was to go to Van Damme for money, why? He said that you said my agent, you shouldn’t get the governor’s salary, you should pay me half of your salary. Van Dam thought he was acting as acting governor legally and reasonably, and the position was not robbed. Why should I divide the money in half? He also knew that Cosby had a very bad reputation. He told Cosby that if you spit out all your corrupt money in the UK, I will divide my money in half. The two had torn their faces. He took Van Dam to the Supreme Court in New York at that time, and the Supreme Court did not accept the case. Cosby felt that those of you who didn’t listen to me, you used the power of the British King to remove the president of the Supreme Court and promote your cronies to the top. The president of the Supreme Court was very angry after he was removed, thinking about how the British were doing this. He united with Van Damme, some local literati, and a German immigrant Zenger, and founded a newspaper called “New York Weekly Journal” (New York Weekly Journal). He only did one thing, basically Attacked the corrupt and embezzled people sent by the British king.
At that time, New York had only one other newspaper, called the “New York Gazette.” It is an English newspaper, whose main job is to sing praises to the Governor. Cosby was very angry when he saw the article published in the “New York Newsweek” because he was usually touted by others, so he arrested Zenger and collected all the New York Newsweek published at the time and put them in the square. Burned on. This caused a great sensation at the time. It is equivalent to a very big contradiction between the Yingying school and the local school. Cosby only knew that “New York Newsweek” published articles saying he was corrupt, but the articles were written anonymously, so he didn’t know who the author was. Although he might feel vaguely that this must have been written by the president of the Supreme Court who had been fired before, but because there was no evidence, he could only bring the founder Zengge to court. After going to court, Zenger hired a very well-known lawyer, Andrew Hamilton, to defend him.
Andrew Hamilton put forward three principles. The first principle is that defamation of official speeches, whether true or false, constitutes slander. It is absolutely wrong. The people have the right to criticize. If you do not well, I have the right to criticize you. The combination of falsehood and slander constitutes slander. This redefines what defamation is.
The second principle is that the jury should have the right to make factual judgments, as well as legal judgments. This redefines the jury. At that time, the jury can only make factual judgments. What is factual judgment? In criminal cases, for example, the plaintiff said that the prisoner was wearing red clothes, and the prisoner himself said that I was wearing green clothes, so I am not a prisoner. He will ask the jury to make such a factual judgment. In the end, he cannot make a legal judgment on who said what is true. It is said that the jury cannot say that the law is a draconian law. I do not judge based on this and cannot do so. He proposed a concept that the jury has the right to make legal judgments. That is to say, if the law is not good, the jury has the right not to judge according to the law. The law at the time could not criticize officials. Andrew meant that this was a bad law, so the jury has the right to say that there is a problem with this law, and I do not judge based on this law.
The third principle confirms that freedom of the press is a basic right, a right that all free people should have. This right allows people to speak out when they are hurt, and people have the right to publicly protest the actions of abusers. If the people cannot express the values they firmly believe in, they will lose their freedom, encourage the power to oppress the people, and even destroy the country. This was the original words of the lawyer at the time, which was very indignant. It also caused a huge sensation in the court. Because North Americans went to see it at the time, and they were actually oppressed by the British. At that time, they were all very indignant. In the end, there was no other way but to judge Zeng Ge to win. This case became the veritable first case on freedom of speech in North America.
Based on this incident, the United States did not include freedom of speech until the Constitution was drafted and the Bill of Rights was written. I have suffered from the loss of freedom of speech before, so we must ensure that everyone can speak up, say what they want to say, and not censor the newspaper. After listening to this, you may find it very beautiful. The constitution has written freedom of speech. However, in the entire development history of the United States, there have been several periods of large-scale restrictions on freedom of speech.
The first restriction on freedom of speech was during the war between the United States and France (1798). The Senate and the House of Representatives passed a law against foreign nationals and citizens of the country called the “Decree on the Disposal of Aliens and Sedition”. Among them, the decree that punishes sedition is mainly aimed at American citizens. It says that no one can write or print, verbally express or publish any untrue scandal or malicious articles and remarks against the US government or any member of Congress, or against the president. Simply put, you cannot criticize the Senate and the House of Representatives, nor can you criticize the President. This is completely different from now. If you criticize the Senate and the President, you are caught and you will be fined up to $2,000 and imprisoned for up to two years. At that time, 2,000 US dollars was a lot of money, and two years in jail was quite a long time. This was a period of large-scale control of speech. At that time, it was mainly because of wars, the Federal Party and the Democratic Republican Party broke up, and it was also because of internal party struggles that this law was passed.
The second restriction on freedom of speech was during the First World War. The US government successively promulgated the Espionage Act (1917) and the Prevention and Sedition Act (1918). Because the United States joined the First World War. The purpose of the government passing these laws is to suppress domestic anti-war voices or the voices of German immigrants in the United States.
The third restriction on freedom of speech was after the Second World War (the second red panic). During this time, many laws restricting speech were passed, such as the “Mont-Nixon Act” (the full name is the “Subversive Activities Control Act”, and the bills at that time were named after the name of the proposed member), the “Smith Act” (” The Alien Registration Act) and the McAllen Internal Security Act are intended to suppress the labor movement and send American communists who criticize the government to prison.
I found that as long as the United States has domestic conflicts and desperately throws the pot, it will begin to control speech, which is exactly the same as the current plot. Anyway, as long as there is a contradiction in the country, it is not good for me anyway, then others are definitely not good. The second red panic also caused many Americans to distrust the government. This kind of anti-communist sentiment in China triggered the familiar US-Soviet hegemony, the Korean War and the Vietnam War. The Vietnam War made the United States miserable. It not only lost, but also killed a lot of people. It took a lot of energy and caused a series of lawsuits. At that time, the United States also began to appear, and the people began to feel that it was not that communism was bad, but that our government was bad. Many people are beginning to realize that the government can also make stupid decisions and distrust the government.
At this time, another famous case of freedom of speech occurred, and it was also a very big case at that time. This case is a case that the American people began to distrust the government and began to reflect on the Vietnam War, which led to the New York Times v. United States (New York Times Co. v. United States). I won’t talk about the details of the case, because it’s more complicated and I wasted a lot of time today. I will post my notes to you after class.
The New York Times v. United States case is a case related to the Vietnam War, when the Secretary of Defense of the Nixon Administration, Robert S. McNamara (Robert S. McNamara). In order to review the lessons of the Vietnam War, he asked someone to organize a special group on the history of the Vietnam War. He collected various materials over the past few decades and compiled a research report with more than 7,000 pages. It was a top-secret document of the government at that time, also known as the “Pentagon Document.” But I don’t know why, maybe someone in the middle leaked secrets, like Snowden’s case, the documents were leaked to The New York Times. At that time, everyone had already begun to reflect on the Vietnam War, and thought we had to think about what mistakes we made in the Vietnam War. After receiving this document, the “New York Times” felt that the US government was deceiving the American people and published it. The government is very angry because it publishes top-secret documents. How can these things be released to let others know how bad things the government did in the war and how the government maintains a good image? So the Nixon administration used the “Federal Espionage Act” as a reason to report the “New York Times” to the Federal District Court. The judge also ordered you not to distribute these materials because it was a top-secret document of the government, and many people were paying attention at that time. There may also be people from other countries in this matter, so the government and the courts feel that how can they damage the prestige of the United States in front of the world. But the “New York Times” believes that we are the media, and we also have the right to censor the government. We have the right to monitor whether the government is doing right or not, we criticize the government, and let’s say you really did something wrong. Therefore, the case was brought to the Supreme Court.
In 1971, the Supreme Court’s result was 6 to 3, and the case was finally won. After winning, these journalists were very happy, and the headlines of the day were all this news. The headlines of the newspapers I found at the time were almost like the following.
Because of the Vietnam War and a series of events, many people began to realize that the government could also do wrong. The American people have also begun to distrust the government extremely. At that time, the Internet sharing protocol was just beginning. Computers, scientists, and some hackers who mastered this technology began to study how to use encryption for information exchange and identity authentication to prevent government control and monitoring, and ultimately automate the interaction between people. Trust, and even replace some government functions. The civilianization of cryptography is mainly due to three MIT scholars who published the RSA encryption algorithm in the “Scientific American” magazine, making it possible for everyone to use the RSA encryption algorithm under the radar of the military and government. Communicate secretly. It is equivalent to that anyone who understands technology can use it for secret communication, which is equivalent to the beginning of the civilianization of cryptographic technology.
In the earliest days, cryptography was mainly controlled by the government and the military. After the civilianization, the government panicked. At that time, various methods were used, legislation and academic publishers were threatened. The three cryptographers also received some threats and direct warnings at that time, saying that they could not publish this thing, because if you publish it in a journal, don’t Scholars and spies from different countries can see it. In this case, we cannot protect our country. At that time, the U.S. government issued an announcement. He said so in the original text. Unrestricted public discussion of cryptography will cause realistic and lethal dangers. It will severely weaken the government’s ability to transmit intelligence, and it will also seriously. Weaken the government’s ability to protect the national security information of the facility from the threat of hostile groups. So the government’s reason is that I want to protect the security of the country. However, the American people have completely lost confidence in the government because of the Vietnam War, so they certainly do not believe it. This kind of technology-savvy person is even less convinced, and the technology-savvy person knows what he is doing better.
Thus, there was the cypherpunk movement. A lot of interesting things happened during this period. For example, David Chaum, a very famous cryptographer at the time, published a very influential paper with a very interesting title, called “SECURUITY WITHOUT IDENTIFICATION :TRANSACTION SYSTEMS TO MAKE BIG BROTHER OBSOLETE” . Simply put, with this thing, the government has no way to monitor you. He is in this article. He also raised several issues that we are slowly beginning to realize now, such as the privacy of the people that data mining can extract. This is the issue we will discuss next.
In this article, he also mentioned that ubiquitous surveillance will cause a chilling effect, meaning that because everyone is worried about such surveillance, he dare not talk about things at first. He also said that centralized systems are more vulnerable to attacks, causing data leakage. We have often encountered recently that Weibo just leaked data some time ago. Anyway, students who are interested in this article can read it, because the content of the article itself is very interesting, and the topic is also very interesting.
I said just now that the US Congress felt at the time that our national security was threatened because of the skill of these people. In fact, they could not monitor it. As a result, they passed two very well-known laws, the Arms Export Control Act of 1976 and its implementing regulations, the International Trade in Arms Regulations (ITAR). Arms exporters must register with the federal government and obtain licenses. In order to export weapons. Why is this related to cryptography? Because at that time, if you used more than forty ciphers in the encryption technology, they were all considered weapons, so as long as you export them, they are all under the control of the US State Department.
In 1979, an Export Administration Act (EAA) was passed, stipulating that the U.S. Department of Commerce can control exports for reasons of national security, foreign policy, and supply shortages, and it belongs to the U.S. Department of Commerce. The Ministry of Commerce has formulated a new list, which is mainly concerned with those that are both commercial and military. There are many, such as surveillance equipment, such as DJI drones. It can be used for personal use. After you modify it yourself to some extent, you can also go to the military. This kind of thing is under the control of the Ministry of Commerce. Sixteen projects were set at that time, and cryptography technology was also included.
Although the government has been supervising cryptography technology, the so-called “Road” is one foot high. At that time, there were many people who knew technology, and there were more people than the government. In 1991, one of the earliest cypherpunks, Philip R. Zimmermann released a mail encryption software called PGP for free on the Internet.
Zimmermann was living in Colorado at the time and was an ordinary engineer and an anti-nuclear activist. At that time, everyone was very worried about the possibility of a nuclear war between the United States and Russia. In addition to being an engineer, Zimmermann spent his spare time basically participating in anti-nuclear activities. Once he was arrested by the government when he held a peaceful anti-nuclear demonstration in public. The reason may be similar to that of China’s public security management punishment law. It may be okay to be arrested, but he went to court after he was arrested. After arriving in court, he discovered that the evidence submitted by the prosecutor at the time actually contained records of his mail exchanges and phone calls with others. Although Zimmermann is an engineer, he might have thought that the government was monitoring me, but he was really surprised when he found out that your call records and emails were thrown in front of you in court. He did not expect the government to actually do it. That’s so excessive. This incident caused him psychological trauma and was very angry, so after he went out, he made up his mind to invent an encryption software.
After he came out, it took a while to develop the first version of PGP. In 1991, the first version of PGP was published online for everyone to download. He also gave the PGP to some anti-nuclear elements around to participate in such activities so that everyone does not have to worry about government surveillance. As a result, a friend of his put it on a website dedicated to putting the source code, and his friend marked the post as only the United States. At that time, he might also have this kind of worry, so he didn’t want to let foreigners download this software, but you just put a label on it, it is actually useless. For example, I am an American. I downloaded the code and sent it to foreigners in the form of an email. Anyway, in the end, PGP is definitely not only in the US, but sent to people all over the world.
PGP belongs to the first few encrypted mail systems that can be used by the public, so it spreads widely. Later, the U.S. government learned about it and wondered how to give such secret technology to foreigners? PGP used a 128-digit code at the time. At that time, the requirements for weapons exports were very low, only forty digits. If it was in accordance with the standards of the US State Department at that time, it was a standard military product. So the U.S. Department of Commerce approached Zimmerman and said you would take it down and stop posting it. Zimmerman doesn’t trust the government, and it’s useless to take it down. Even if the post is deleted, many people already have a copy on the computer, and there is no way to stop him from distributing it. So Zimmermann did not follow the requirements of the US government, but the US used some means to withdraw things. Zimmerman was very angry. He thought of a trick at the time. He published a book through MIT and printed the source code of PGP directly in it. Because books can be exported, send the books directly to the person who wants to use PGP. After you buy this book, you can scan the code into your computer and process it a bit before it can be used. Because the First Amendment to the U.S. Constitution stipulates that everyone enjoys freedom of speech, it is impossible not to publish this book. The U.S. government is also very confused and cannot treat books as weapons. In the end, reluctantly, the charges against Zimmerman were dropped, and he did not trouble him. If you are interested, you can still buy this book on Amazon. This picture is what the first edition looks like. In fact, this incident also affected many people and affected the cypherpunk movement after him. One of the cases eventually led to the verdict that “code is speech”.
This case is called Bernstein v. United States. Zimmerman’s entire investigation was concluded in 1996, and the Bernstein lawsuit against the United States began in 1996, and the case lasted for 4 years. When he started playing, Bernstein graduated from Berkeley, California, and when he finished playing, he was already a professor at the University of Illinois at Chicago, and he played for a very long time.
Bernstein was still a student at Berkeley at the time. He was doing cryptography research and writing his doctoral thesis in this area. He developed an encryption system at that time, which mainly included three contents, one was a paper, a paper on Bernstein’s analysis of mathematical formulas, including two computer programs written in C. I know that there are many people who write computer papers and like to attach the code to the back of the paper. I also like to do that. In fact, he did it at the time. Finally, there is an explanation to teach you how to use these two programs.
Bernstein wanted to publish some of his ideas in academic papers. Everyone in the cryptography circle may be familiar, so he may also have heard about Zimmerman. He felt that if I wanted to publish something, would I have to ask the US government to apply. He submitted an application to the State Council saying that I wanted to publish something, but the State Council said no. At that time, Bernstein thought, I just want to have peaceful academic exchanges with some of my friends, why don’t you let me publish my paper? He went to the Electronic Frontier Foundation and took the case to a court in the Eastern District of California. The closing time was 1996. At that time, the Eastern District of California had already sentenced him to win, and the code had been judged to be speech. The verdict was not very interesting, so I did not ask everyone to read it.
What’s more interesting is that the U.S. government was dissatisfied, so it took the case to the Ninth Circuit. At that time, Bernstein won a two-to-one sentence. The judge said something that I think is a more classic sentence of that sentence: “密码学家用源代码来表达他们的科学思想，就像数学家用方程式或经济学家用图表一样……根据这些考虑，我们得出结论，加密软件，其源代码形式和在密码学领域的应用，出于第一修正案的目的，必须被视为具有足够的表达性，因此适用禁止事前限制原则。」
翻译一下，说程序员是可以用代码来交流的，所以源代码是具有足够的表达性，它可以传达一个人的思想，所以受第一修正案保护，而且适用于禁止事前限制的原则。
它不是直接说因为受第一修正案保护，你想干什么干什么，不是这样的。禁止事前限制原则，简单来讲，如果记者要去采访，你不可以阻止我去采访他，但是我采访他之后，我这文章发布出来的时候，你觉得我这文章里面写的有什么问题，你还是可以告诉我，这个叫禁止事前限制原则。
当时是出于这一系列考虑，巡回法院判决说是代码是属于受保护的言论。这个概念现在应该大家都能想通，但是那时候懂信息技术的人还不多，包括当时的法官。就算是现在，在美国这些法官里面有过这种技术的背景的人还非常少，当时就更少了。至少在技术计算机科学领域是个非常大的案子，它也促成了一系列事情的诞生。这也是为什么各全世界各地的程序员现在可以在github 这样的网站分享代码。这些原来是不可以的，因为原来很多代码，那个只要你的代码可以被改为军用，你都是要受限制的，你不可以把这些东西发到网上去。因为这个判决，所以全世界各地的程序员才可以在网上进行愉快的交流。
这案子非常有意思的一个点，因为当时法官判决说只有源代码是第一修正案保护的言论，但目标代码是不受保护的。解释一下，目标代码就是01010101 这样，这是不受保护的，因为人读不懂。如果人有一天能读懂目标代码，那么那个时候也会有对目标代码的保护，但现在是只有源代码的可以受保护。那是一个非常有意思的事，因为如果有一天，像有些科幻电影里面一样，机器人会成为我们生活的一部分，普通人会在大脑里植入芯片可以跟机器人交流。如果这样的情况真的发生，那么目标代码也会变成受保护的言论。
2000 年打完这个案子之后，美国没有再没有发生过类似的案例。前年的时候，代码即是言论，又被重新提出来，因为区块链。当时有一个非常有名的去中心化交易所，他那个代码写出来是自动运行的，没有管理者。当时美国政府要起诉那个写代码的人，也是名义上的所有者，说你随意运营这样子一个交易所，违反了美国证券法。因为在美国你运营这样子的一个交易所，你需要去申请交易所执照，他肯定没有申请。电子前哨基金会当时就帮他回了一封信，他说基于伯恩斯坦讼诉合众国案的判决，我们觉得，这种去中心化的交易所是自动运行的，不受人为控制，这种情况下，因为代码是受第一修正案保护的言论，所以没有违反美国证券交易所的规则。这是一个非常有意思的案子。
今天差不多讲到这里，谢谢大家！
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