From: mcw@atreus.ncs.ncsc.mil Subject: Is Hate Code Speech?

I acknowledge that you're welcome to use whatever variable names you want in code you write in private. BUt if you want to sell that code, it should be held to a standard of professionalism.

I think it is interesting that people are speaking of the program as something published for public consumption. Source code for commercial products rarely goes public and compilers do a rather nice job of obscuring human language variable names. Thus if there is any message or coherent agenda in the source code it is highly unlikely that it will be detectable in the executable, which is in fact the product delivered to the public. Since the source code can only be read by insiders/employees then this does tend to make it rather obvious that a form of speech was intended. I won't rehash the fact that non-relevant, human-language-significant variable names (as opposed to x, y, i, & j) are generally unacceptable programming practice. I would make two points; that in todays programming world source code is protected by copyright law as are other forms of expression legally considered speech and source code is intended to document the process and as such communicate ideas--in a broad sense this is a decent description of speech, a written mode of communicating ideas. If someone finds offensive (hate) material in an obscured text (encrypted) intended for limited distribution, does the encryption make it less hateful? does the encryption make it any less a form of speech? does the fact that distribution is limited (assumming the "target" is in the distribution class) make it any less offensive? Is a crime less illegal if it is hidden? (Be careful, on this one...) I think that offensive, probably hateful, speech was intended. So the next step (or for others, a previous step) is to decide whether there are legal grounds for action. There are several laws which do, in fact, make these activities illegal. Most people in the US today agree that overt racism is wrong. Additionally, most "Americans" agree with laws that make it illegal to use/perform "hateful" speech. These are very dangerous laws since they try to tread a very thin line between the freedom of thoughts (and to some degree, actions) and injury to others. When I first settled down to live in Spain and began to pay real attention to the local political scene I was astonished to find people defending the "right" of the radicals to throw stones and metal objects at those persons expressing ideas contrary to theirs (pro-peace, anti-terrorism demonstrations, 1995-6). Fortunately, we hear less and less of this non-sense that physical harm to another is a valid form of personal expression or speech. But the base problem lingers, where do we draw the line of expression of ideas and intent to do harm. It has long been held that shouting "fire" in a crowded building is not a protected form of speech. Nor is libel (forgetting for now the problems of defining or proving it). And where do we draw the line (or does it even matter?) between public and private? And where do expression and action get separated? Thinking about doing something, or telling some one about those thoughts are not generally the same as actually doing it. But where does thought become expression become action? This case doesn't solely revolve around the speech issue...IMO, it also revolves around the public/private issue, and whether or not the government can rightfully "enter" a "private" business place to regulate these matters. Recent history (80 years or so...) shows an increasing tendency for the government to "protect" workers by regulating the workplace. There are health & safety regs, minimum wage regs, etc. The "American" populace has in general supported (and at times demanded) these external limits on the "private" employer/employee relationship. Legal precedent exists. There are two problems here and historically the government has been called upon to keep a balance between "free speech" and "harmful speech" on the one hand and "Privacy" and "Protection" on the other hand. The debate now is with this case which way will (should?) the pendulum swing? More protection (reduction of privacy), more freedom (or hateful speech)... Personally, I hope no one wins this eternal debate 100% since the results would be disastrous. Just some thoughts... Albert P. Franco, II encryption@apf2.com