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Encryption Source Code and the First Amendment, 15 BERKELEY TECHNOLOGY LAW JOURNAL 713 (2000).


The First Amendment does not cover all speech acts. It instead extends constitutional protection to media for the communication of ideas, which are forms of social interaction that realize First Amendment values. The constitutional question, therefore, is whether particular uses of encryption source code are embedded within such media. It is insufficient to distinguish, as do current federal regulations, the publication of encryption source code in electronic form from its publication in written form. Instead it is necessary to focus on the social contexts within which encryption source code is used, whether in electronic or written form. From a constitutional perspective, it is one thing to use source code to convey ideas to an audience, and it is quite another to use source code to run a computer. The article suggests how each of these situations might be constitutionally analyzed.

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