Apparently, in the 1990’s a student from UC Berkeley by name Bernstein developed an encryption software that he wanted to publish and government tried to stop him. He successfully argued that software is a form of speech and therefore is protected by the first amendment. I came to know about this when I read the details about the current controversy involving unlocking of an iPhone by Apple.

As you know, the FBI is asking Apple to unlock the iPhone of the San Bernardino shooters and Apple is supposedly invoking this first amendment argument to refuse to oblige. In the new iPhones, the content is encrypted and when a lock is set, you have a maximum of 10 tries to get it right. After 10 failures, the phone self destructs the content. Obviously if you don’t know the password, you can’t keep trying. FBI is asking Apple to modify and install a new version of iOS on the phone that bypasses this 10 try limit. One always wonders why not ask Apple to get the password from the phone? Because, the password is always encrypted and Apple doesn’t know it!

Apple claims that if they did this for the US government, other governments may force them to do the same for iPhones of their citizens and the fear is that governments like the ones in China may misuse this technique against their citizens. Public opinion poll on this seems to favor FBI on the grounds of national security. The intent of this post is not to discuss whether Apple is right or not.

In fact, if you are interested to know the nitty grity details about the use of the first amendment protection, you should read this article titled “Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work“. Here, the author tries to explain exactly how Apple plans to use the freedom of speech argument. It turns out that it is not invoking the protection involving the rewrite of the iOS to bypass the count. The code, once written, needs to be digitally signed and encrypted before that is installed on the phone. It is this step that Apple is planning to argue (like the Bernstein case) is protected by the first amendment.

I was fascinated by this whole idea that source code is a form of free speech and is therefore protected. Does this mean that a programmer is at liberty to write software any which way he/she wants as long as the program does what it is intended to do? Obviously freedom of speech is not always guaranteed and there are exceptions. One can assume that those exceptions apply to source code also. But, can we, as an organization impose certain standards that they have to follow?

I can see some programmers writing code like $management = $sucks = 1; or

$supervisor_favorite = ‘Exceeds expectations’;
$argues_with_supervisor_too_much = ‘Meets Expectations’;
$look_for_a_new_job = ‘Needs Improvement’;
if ($employee[‘performance_ranking’] > 3)  {
$ranking_text = $supervisor_favorite;
}
elseif (($employee[‘performance_ranking’] > 2)  {
$ranking_text = $argues_with_supervisor_too_much ;
}
else {
$ranking_text = $look_for_a_new_job;
}

I know that this is a stretch, but the fundamental question is “if source code is protected by freedom of speech, can a developer use that to write the code to express himself/herself within the limits of freedom of speech”? Or, is it the case that “work for hire” overrides developers who work for organizations, such as ours? I think it is safe to assume that this is the case. In that case standards and etiquette can be imposed.

I assume that Apple won’t allow a programmer who is working for Apple to claim the same rights of protection that Apple is claiming against the government.

Are there parallels in our own world? Is it that many are not as powerful as Apple to invoke such a right, assuming that the courts will decide that Apple is right?