In djb’s latest brief in his export-crypto case, he has an interesting first ammendment argument:
Consider, as a hypothetical example, a book that explains how to use a microwave oven. The book says, in part, “Press button B; then press button 2; then press button 5; then press Start.” A cook follows these instructions: he presses B, 2, 5, Start.
Following the instructions is not speech; but writing and publishing the instructions is speech. The First Amendment poses no obstacle to a government regulation of pressing buttons on microwave ovens; but a government regulation of telling people to press buttons on microwave ovens would be content-based and therefore subject to strict scrutiny. Asking “Is a button sequence fully protected speech?” would needlessly confuse the publication of a button sequence with the use of a button sequence.
A closer inspection reveals that, when the cook presses buttons, he is actually talking to a small computer inside his microwave oven. He is passing instructions (“B, 2, 5, Start”) from the book author to the computer. But this technological detail has no relevance to the First Amendment analysis. The author’s disclosure of information to the cook is fully protected speech; the cook’s disclosure of information to his oven is a red herring.
The government could argue, exactly as it is arguing in this case, that giving “instructions to a computer” are not protected by the First Amendment. It is true that giving instructions to a computer inside a microwave oven is not protected by the First Amendment. But publishing the same instructions, or disclosing the instructions to another person, is fully protected.
I wonder if such an argument would be useful in the DeCSS case.