Code can’t be compelled
One of our interns, Santana Boulton, wrote this piece on algorithms and the First Amendment. Santana is a 3L at University of Minnesota Law School and has been an intern with TechFreedom since January 2021. Santana has covered a variety of topics related to tech law, including the FTC, antitrust, and online speech.
“Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.” So wrote federal judge Robert Hinkle when he enjoined enforcement of Florida’s recently passed social media regulation. Ignoring that rebuke — one of many present in Judge Hinkle’s opinion — Texas and Wisconsin are pressing ahead with similar bills. Laws that restrict a private company’s ability to engage in constitutionally protected speech are doomed to fail. But legislators keep trying, and in doing so, they’ve found a new boogeyman: algorithms.
Because Florida’s law is riddled with speaker-based and content-based restrictions, and because legislators had viewpoint-discriminatory motives for passing it, Judge Hinkle concluded that the law is almost certainly unconstitutional. (Judge Hinkle declined to address one section, involving antitrust and government contracts, that presents no risk of imminent harm to regulated entities.) Perhaps because the statute has so many problems, the court didn’t consider a distinct issue: whether restrictions on algorithms qualify as compelled speech under the First Amendment.
They do. Algorithms are the backbone of computer code. Social media sites — all websites, for that matter — are written in code. Just like a musical score or technical manual, computer code is both instructional and a written idea itself. Computer code, like any other language, expresses protected speech. Code incorporates and references algorithms, and laws that proscribe the use of algorithms to moderate content force a company to write code it otherwise would not.
The government cannot compel social media sites to use specific algorithms. Doing so means forcing sites to speak by writing code, and government-mandated algorithms would force platforms to speak only in certain ways about certain people. These regulations violate the First Amendment.
Tilting at algorithms
Algorithmic content moderation is a hot issue on the left and the right. In testimony before the Senate’s Judiciary Subcommittee on Privacy, Technology, and the Law, the president of the Center for Humane Technology suggested that social media’s algorithms have “degraded the capacity of the American brain.” Florida’s “Transparency in Technology Act,” SB 7072, tries to force companies to provide the algorithms they use in response to a subpoena and to allow users to opt-out of algorithmic content curation. The law also bans the use of algorithms to sort content posted by, or even about, a political candidate.
Texas’ new bill, SB 5, would require companies to show how they use algorithms to sort and moderate content.¹ Texas Governor Greg Abbott recently tweeted that SB 5 would protect Texans from “being censored by Big Tech.” Wisconsin’s bill would prohibit “censoring” content by or about candidates, make companies publish information about their algorithms, and force them to let users opt-out of “algorithm categories.” Seeking to fight supposed “censorship” by private companies, each of these bills tries to dictate what code those companies can and can’t write.
What is an algorithm?
Computer programs rely on underlying algorithms to solve problems and return outputs to the user. An algorithm is merely a set of instructions that tell a computer to carry out a task. Algorithmic content moderation is a way to automatically make moderation decisions when a case matches a specified pattern.² In other words, a social media site asks, “What content should we show this user?” and uses its algorithms to answer.
Algorithms sort your Twitter feed. They take millions of pictures, videos, polls, news articles, and text posts and order them based on your settings and history. Algorithms remove spam posts and let you search for a hashtag. They track, for instance, how often a user interacts with the @BadLegalTakes account and decide whether to show those posts near the top of the user’s feed. An algorithm shows you posts on Reddit based on how popular they are, and algorithms reference your preferences to prioritize relevant content. Without algorithmic content sorting, social media would show everything, all at once, likely based only on when the content was posted. Facebook would no longer prioritize a close friend’s engagement announcement in your feed. If you’re offline for a few days? Well, good luck sorting through what’s important.
Code is protected by the First Amendment
Though the Supreme Court has not yet reached the issue, both the Sixth and Ninth Circuits have concluded that computer code is speech.³ Bernstein v. United States involved a graduate student, Bernstein, whose encryption algorithm⁴ was placed on the United States Munitions List (“USML”) by the Department of State.⁵ Once the President has placed a “defense article” on the USML, it can’t be imported or exported without a license.⁶ Bernstein alleged that he couldn’t teach his algorithm or publish it in journals because of its placement on the USML.⁷
The Ninth Circuit ruled that Bernstein could challenge the placement under the First Amendment.⁸ “This court can find no meaningful distinction,” the Ninth Circuit held, “between computer language … and German or French.”⁹ Similarly, the Sixth Circuit found that a professor could challenge the restriction of his encryption code by the Export Administration.¹⁰ Junger v. Daley holds that, “Because computer source code is an expressive means for the exchange of information and ideas about computer programming … it is protected by the First Amendment.”¹¹
Tech companies understand this. Apple told the FBI that, under the Ninth Circuit’s ruling, they could not be compelled to write code — “speak” — when they refused to create a backdoor into the San Bernardino shooter’s iPhone. After a terrorist attack in 2015, the Federal Bureau of Investigation recovered one shooter’s locked iPhone. The FBI asked Apple to create and electronically sign — validate — new software that would unlock the phone. Apple said no, and when the FBI and Justice Department obtained a court order to force Apple to write the code, Apple fought back in court. “[I]f Apple can be forced to write code in this case to bypass security features and create new accessibility,” it wrote in [a brief seeking [x]], “what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance … ? Nothing.” After a third party unlocked the iPhone (which, it turned out, contained nothing relevant to the plot), the government dropped the case.
Compelling code is unconstitutional
Code and algorithms are not exempt from First Amendment protections just because most people cannot read them. The state can no more tell a company what code to write than it could tell them what to write in Latin. Under Wisconsin, Texas, and Florida’s laws, social media sites would be forced to speak extensively to comply with the government’s restrictions on algorithms. These laws, and any like them, violate the First Amendment.
¹ S.B. №5, Subchapter B(a).
² James Grimmelmann, The Virtues of Moderation, 17 Yale J.L. & Tech. 42, 55 (2015).
³ Bernstein v. United States Dep’t of State, 922 F. Supp. 1426, 1436 (N.D. Cal. 1996), see also Bernstein v. United States Department of Justice, 176 F.3d 1132, 1141 (9th Cir.), reh’g in banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999); Junger v. Daley, 209 F.3d 481, 482 (6th Cir. 2000). In Bernstein, the 9th Circuit issued an opinion on appeal and then withdrew that opinion; the Northern District of California’s holding controls.
⁴ The encryption algorithm was published as computer source code. Computer source code is what a computer program is written in — by itself, a computer program is nothing more than a written document. Allen C. Zoracki, Comment, When Is an Algorithm Invented? The Need for A New Paradigm for Evaluating an Algorithm for Intellectual Property Protection, 15 Alb. L.J. Sci. & Tech. 579, 582 (2005).
⁵ Bernstein, 922 F. Supp. at 1429.
⁶ Bernstein at 1429.
⁷ Id.
⁸ Id. at 1439.
⁹ Id. at 1435.
¹⁰ Junger at 485.
¹¹ Id.
