Coding Freedom: The Ethics and Aesthetics of Hacking

copyrighting and patenting of computer software. Prior to 1976, such an idiom had been rare. The first widely circulated paper associating free speech and source code was “Freedom of Speech in Software,” written by programmer Peter Salin (1991). He characterized computer programs as “writings” to argue that software was unfit for patents, although appropriate for copyrights and thus free speech protections (patents being for invention, and copyright being for expressive content). The idea that coding was a variant of writing was also gaining traction, in part because of the popular publications of Stanford Computer Science professor Donald Knuth (1998; see also Black 2002) on the art of programming. During the early 1990s, a new ethical sentiment emerged among Usenet enthusiasts (many of them hackers and developers) that the Internet should be a place for unencumbered free speech (Pfaffenberger 1996). This sensibility in later years would become specified and attached to technical artifacts such as source code.
    Perhaps most significantly, what have come to be known as the “encryption wars” in the mid-1990s were waged over the right to freely publish and use software cryptography in the face of governmental restrictions that classified strong forms of encryption as munitions. The most notable juridical case in these struggles was
Bernstein v. U.S. Department of Justice
. The battles started in 1995 after a computer science student, Daniel J. Bernstein, sued the government to challenge international traffic in arms regulations, which classified certain types of strong encryption as munitions and hence subjected them to export controls. Bernstein could not legally publish or export the source code of his encryption system, Snuffle, without registeringas an arms dealer. After years in court, in 1999 the judge presiding over the case concluded that government regulations of cryptographic “software and related devices and technology are in violation of the First Amendment on the grounds of prior restraint.” 10
    What is key to highlight is how neither Salin’s article nor the Bernstein case questioned copyright as a barrier to speech. With the rise of free software, developers began to launch a direct critique of copyright. The technical production of free software had trained developers to become legal thinkers and tinkerers well acquainted with the intricacies of intellectual property law as they became committed to an alternative liberal legal system steeped in discourses of freedom and, increasingly, free speech. If the first free speech claims among programmers were proposed by a handful of developers and deliberated in a few court cases in the early to mid-1990s, in the subsequent decade they grew social roots in the institution of the F/OSS project. Individual commitments and intellectual arguments developed into a full-fledged collective social practice anchored firmly in F/OSS technical production.
    Unanticipated state and corporate interventions, though, raised the stakes and gave this rival legal morality a new public face. Indeed, it was only because of a series of protracted legal battles that the significance of hacker legal expertise and free speech claims became apparent to me. I had, like so many developers, not only taken their free speech arguments about code as self-evident but also taken for granted their legal skills in the making of these claims. Witnessing and participating in the marches, candlelight vigils, street demonstrations, and artistic protests (many of them articulated in legal terms), among a group of people who otherwise tend to shy away from such overt forms of traditional political action (Coleman 2004; Galloway 2004; Riemens 2003), led me to seriously reevaluate the deceptively simple claim: that code is speech. In other words, what existed tacitly became explicit after a set of exceptional arrests and lawsuits.
    Poetic Protest
    On October 6, 1999, a sixteen-year-old Johansen used a mailing list to release a short, simple software program called DeCSS. Written by Johansen and two anonymous developers, DeCSS unlocks a piece of encryption by the name of CSS (short for content scramble system), a form of Digital Rights Management (DRM) used to regulate DVDs. CSS “is a lock rather than block” (Gillespie 2007, 170) preventing a DVD with CSS from being played on a device that has not been approved by the DVD Copy Control Association (DVD CCA), the organization that