Are codes protected by freedom of speech? - with a Canadian twist

On March 3rd, 2016, EFF (Electronic Frontier Foundation) deposed an amicus brief to support Apple's fight against the court order in the now infamous FBI v. Apple case. If you're not familiar with the case, I suggest reading the complete article from EFF here.

So, EFF's legal opinion is written "on behalf of 46 prominent technologists, security researchers, and cryptographers who develop and rely on secure technologies and services that are central to modern life" (ibid).

While Apple's main argument is to affirm that the FBI is seeking an unjustified extension of the All Writs Act by requiring the company "to create a brand new version of its operating system with intentionally weakened security features, which the government can then use to get into the phone" (ibid), the new amicus brief goes further by claiming that this order constitutes a violation of freedom of expression.

The right to freedom of expression/speech is protected in both Canada and the United States. In the former, it can be found in s. 2(b) of the Canadian Charter of Rights and Freedom, whereas in the latter it is protected by the first amendment.

The question (Is code speech?) - from a canadian perspective - taste of long talks in the library around a cup of tea or coffee. It's philosophical and it's a great conversation to elaborate on (well if you're into that type of conversation... if you're not, than maybe this article isn't for you!). Yet, from an American perspective, it is just another legal rule that is well implemented into their legal precedents as this exchange demonstrates :

I told my American friend that I would read these legal cases with interest, which I did. Nonetheless, there are no equivalent of these decisions in Canada - at least not to my knowledge. And there are several differences between the treatment of the freedom of expression. To start with, the American legislation uses the word "speech", whereas the Canadian one uses "expression". Besides, the American bill is much more absolutist than its Canadian counterpart.

Moreover, the Canadian test to decide whether a form of expression is cover by the protection of s. 2(b) of the Charter also differs from the American perspective. It's not enough to simply associate coding with writing - the Canadian approach is much more contextual; here's why.

What are the criteria to decide whether a form of expression is covered by s. 2(b) of the Charter?

A good start would be to underline that in Canadian law, there are three justifications behind the constitutional protection :

1. Seeking and attaining the truth is an inherently good activity

2. Participation in social and political decision-making is to be fostered and encouraged;

3. Diversity in forms of individual sef-fulfilment and human flourishing ought to be cultivated

See Irwin Toy Ltd c. Québec (PG), [1989] 1 R.C.S. 927

The basic principle is that all expressive activities (eg "any activity intended to convey meaning") is protected under s.2(b) of the Canadian Charter. However, this can be limited due to the mode of expression or due to the location where it is exercised.

The expression's mode is the way the message is expressed and is not related to the content (R. c. Keegstra, [1990] 3 R.C.S. 697, p. 729). In some circumstances, and I believe that it would be the case with most forms of coding, the form and the content overlaps and can't be distinguished. This situation has already been recognized in Ford c. Québec (PG), [1988] 2 R.C.s. 712, p. 748). Note that all of the decisions cited so far are from the Supreme Court of Canada, whih is the highest authority in the country.

Another crucial principle in regards to freedom of expression in Canada has been noted by authors Alex Colangelo & Alana Maurushat in a great read, titled Exploring the Limits of Computer Code as a Protected Form of Expression: A suggested approach to Encryption, Computer viruses and Technological Protection 'easures (2006) 51 McGill LJ 47, p. 56 :

"The Supreme Court, in Irwin Toy, expressly rejected the notion of hierarchical forms or categories of expression, opting instead for a broad interpretation. While all content is protected under the Charter, not all forms of expression are protected [...]"

In Keegstra, precited, the Court added that it is "the expression at stake in a particular case" (p. 760) that has to be examined - so the legal analysis now includes giving a value to the expressive activity. The expressive value is evaluated in regards to the three justifications behind the freedom of expression.

To decide if the expression is protected, then, three questions must be answered (as confirmed most recently in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 SCR 19, par. 38):

(1) Does the activity in question have expressive content, thereby bringing it, prima facie, within the scope of s. 2(b) protection?

(2) Is the activity excluded from that protection as a result of either the location or the method of expression?

(3) If the activity is protected, does an infringement of the protected right result from either the purpose or the effect of the government action?

In Canadian constitutional law, infringements by legal rules can be justified by s. 1 of the Charter, which is as follow:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Canadian judges have developped a specific test to apply this disposition, which can be found in R. v. Oakes and is summarized as follow :

Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components. To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportion­ality between the effects of the limiting measure and the objective ‑‑ the more severe the deleterious effects of a measure, the more important the objective must be.

So, hypothetically, would coding be covered by s. 2(b) of the Charter?

Here's some thoughts to consider:

- It is possible for the medium of a message not to be protected even though its content is.

- (Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712) “[l]anguage is not merely a means or medium of expression; it colours the content and meaning of expression” (p. 748) but in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 SCR 19 : "I cannot accept that the choice of a method of expression always conveys a message"

I guess in the case of coding, the language cannot be distinguished from it's content - and in my opinion, that's a strong argument in favor of it being an expressive activity because ultimately, coding is creating something. Refering to coding as simply directives given to a computer is overly simplified and ignores the results of the operation. Of course, the courts still have to recognize the qualification of expressive as a

It may also be that "coding" is too large of a category for legal analysis - different codes may be considered expressive, while others might not be consider expressive. So my question was also overly simplified.

Specifically, violence is not protected under freedom of expression; so I believe that malwares are most likely to be excluded from this protection as well.

Another example is encryption - this type of coding can actually be differentiated from the content. Encryption protects content, but as a "protection" it can help to ensure freedom of speech, but it may not be a form of expression in itself.

These arguments have counter arguments, of course, but it shows that the legal debate might need reframing and that the question of whether code amounts to expression (or speech) in Canadian law may not be as simple as in the US due to the contextual analysis required.

So this blog just moved from simplifying computer sciences for lawyers to simplifying canadian laws for international cyber security experts - interdisciplinary decryption!

#coding #Freedomofexpression #Freedomofspeech #Canadianlaw