Exploring the limits of computer code as a protected form of expression: a suggested approach to encryption, computer viruses, and technological protection measures.

• Author: Colangelo, Alex

Is computer code speech? While this question has received much consideration in the United States, the issue has yet to come to the forefront in Canada. Considering the nature of software code and its expressive qualities, the authors argue that Canadian courts should take a broad approach with respect to the recognition of software as a protected form of expression under the Charter of Rights and Freedoms. The critical question for Canadian courts should not be whether code is a protected form of expression but, rather whether government regulation of software that impedes freedom of expression, is justifiable under section 1 of the Charter.

The first part of this article considers the historical underpinnings and policy objectives supporting freedom of speech in the United States and freedom of expression in Canada. Second, the article considers what is meant by computer code. The third part examines the ways in which the court has approached freedom of expression under the Charter in cases involving private property and economic rights. Finally, the article critically explores the Canadian approach to freedom of expression and compares it to the American approach using the regulation of three types of technologies: computer viruses, encryption, and technological protection measures.

Un code informatique constitue-t-il une forme d'expression? Alors que cette question a merite beaucoup d'attention aux Etats-Unis, elle n'a pas encore atteint un tel niveau de popularite au Canada. Considerant la nature du code informatique et ses qualites expressives, les auteurs proposent que les cours canadiennes prennent une approche large lorsqu'il s'agit de la reconnaissance des logiciels comme une forme d'expression protegee par la Charte canadienne des droits et libertes. Les cours canadiennes ne devraient pas s'attarder a la question de savoir si le code est une forme d'expression protegee, mais bien a celle de savoir si la reglementation gouvernementale des logiciels, qui entrave la libre expression, est justifiee en vertu de l'article 1 de la Charte.

La premiere partie de cet article considere l'historique et les objectifs des politiques de protection de la libre expression aux Etats-Unis et au Canada. Deuxiemement, l'article considere la signification de << code informatique >>. La Iroisieme partie de l'article etudie les approches de la Cour a la liberte d'expression protegee par la Charte dans les cas impliquant la propriete privee et les droits economiques. Finalement, l'article explore de facon critique l'approche canadienne a la liberte d'expression et la compare a l'approche americaine en utilisant trois types de technologie: les virus, le chiffrement, et les mesures de protection technologiques.

Introduction I. Historical Underpinnings and Policy Objectives A. Free Speech and the American Constitution B. Freedom of Expression in the Canadian Charter of Rights and Freedoms II. Computer Code as a Protected Form of Expression A. Source Code B. Object Code C. Software as Discourse III. Computer Code as Private Property/Economic Rights IV. Computer Viruses A. Background B. The Oakes Test C. Hypothetical: Mobile Phone Cabir Virus V. Encryption Software A. Background B. The Oakes Test VI. Technological Protection Measures A. Background B. The Oakes Test C. Hypothetical: Inuktitut Educational Video Game Conclusion Introduction

Is computer code speech? This question has received much consideration in the United States, where courts have wrestled with the issue of whether, and under what circumstances, one should extend First Amendment protection to computer software code. The issue, however, has yet to come to the forefront in Canada. Considering the nature of software code and its expressive qualities, we argue that Canadian courts should take a broad approach in recognizing software as a protected form of expression under the Charter of Rights and Freedoms. (1) The critical question for Canadian courts should not be whether code is a protected form of expression, but rather whether government regulation of software that impedes freedom of expression is justifiable under section 1 of the Charter.

The first part of this article considers the historical underpinnings and policy objectives supporting freedom of speech in the United States and freedom of expression in Canada. In the American context, freedom of speech has typically meant, in the widest sense, the freedom to publish, which in turn includes the freedom to speak, write, and print. (2) Freedom of expression in Canada, while containing many of the basic elements of freedom of speech, is a consciously broader and more expansive notion. Freedom of expression, as promulgated under the Charter, not only protects the right to speak, write, print, and publish but also protects the communication of ideas or opinions through purely physical acts, such as picketing at a labour dispute. Additionally, freedom of expression entails both the communicating and receiving of content. While freedom of speech in the American Constitution is not directly analogous to freedom of expression in the Canadian Charter, it may illustrate potential obstacles inherent in the protection of computer code as free expression.

The second part of this article addresses what is meant by computer code, highlighting the ubiquitous and prolific use of computer code in our daily lives. Emphasis will be placed on the importance of recognizing both object and source code as synonymous with language and, to take the metaphor one step further, recognizing computer software as a form of discourse: the use of language to produce a system of knowledge.

The third part examines the ways in which Canadian courts have approached freedom of expression in cases involving private property and economic rights. Given the important role of computer code as discourse and the flaws of a private property and economic rights approach, we argue that computer code should be a protected form of expression.

The fourth part of the article critically explores the Canadian approach to freedom of expression and compares it to the American approach using examples of the regulation of technology. We discuss three types of technologies: computer viruses, encryption, and technological protection measures. These examples have been selected to highlight the competing tensions in protecting computer code as expression. Case law from the United States and Canada are examined, focusing upon the arguments made for the protection of software and the courts' findings regarding software code. Starting from the platform that computer code is a protected form of expression, we consider "expression" from a Canadian perspective and suggest how Canadian courts might deal with analyses under the limitation provision of section 1 of the Charter.

1. Historical Underpinnings and Policy Objectives

   1. Free Speech and the American Constitution

      Freedom of speech is protected in the United States under the First Amendment, which states that "Congress shall make no law ... abridging the freedom of speech, or of the press...." (3) In analyzing this amendment, courts and academics have advanced two major theories to explain the rationale behind the protection of freedom of speech: the utilitarian theory and the libertarian theory. (4)

      The utilitarian theory of free speech espouses the idea that speech is a tool to advance truth, democracy, and the exchange of ideas. (5) This theory was advanced by Justice Brennan of the United States Supreme Court in Roth v. United States, (6) where he stated that "[t]he protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." (7)

      Libertarian theory, meanwhile, maintains that the protection of speech is an end in itself, which secures dignity by protecting an individual's right to develop intellectually and spiritually through expressive means. (8) In describing this idea, Justice Harlan of the United States Supreme Court wrote that

      [t]he constitutional right of free expression ... put[s] the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. (9) The libertarian model thus seeks to protect individual self-determination rather than any specific right.

      The historical foundation of the First Amendment in the United States Constitution carries great weight in the interpretation that American courts have given to different forms of speech. Rhetoric surrounding the First Amendment often invokes sacrosanct sentiment. (10) America's revolutionary historical foundation has, in many ways, made the American treatment of free speech far more steadfast and absolute in its approach than its Canadian equivalent. The American free speech protection, furthermore, uses the word "speech," which is narrower than the Canadian term "expression." (11) Framed in absolute language, (12) the American Bill of Rights also does not contain a limitation clause equivalent to section 1 of the Charter allowing for the infringement of certain freedoms where demonstrably justified. (13) The absolute nature of the First Amendment has, thus, precluded any "principled justification for upholding laws that restrict speech." (14)

      Ascertaining the applicable First Amendment test from American jurisprudence is difficult because several tests have emerged from the courts. The case of Spence v. Washington (15) determines whether the conduct in question is subject to First Amendment protection. If the conduct is deemed protected, the court must characterize the impending regulation. American courts have not adopted a contextual approach to free expression, but...