Encryption Source Code and the First Amendment

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This paper discusses whether First Amendment analysis should govern judicial consideration of the constitutionality of federal regulations prohibiting the unlicensed export of encryption source code. It argues that First Amendment protections extend to forms of social interactions. The question of First Amendment coverage thus does not turn on the intrinsic nature of source code itself, but instead on the social contexts in which source code is used. Where the source code is integral to otherwise protected communication between persons, application of the federal regulations ought to be subject to strict First Amendment review. But where the source code is instead used to run a computer, so that it might be conceived almost as a form of hardware, the question of First Amendment coverage will depend upon the effect of the federal regulations on otherwise protected forms of expression.