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Federal Court Says State Regulation That Compels Production Of Code May Violate The First Amendment

from the weird-twist-but-an-important-one dept

A rather interesting First Amendment opinion has been handed down by a federal court in Arizona. (h/t Volokh Conspiracy)

At the heart of it is new mandates for data sharing and data protection by car dealers. In 2019, the Arizona state legislature passed the Dealer Data Security Law, which mandates changes to dealer management systems (DMSs), including the institution of protective measures to limit breaches or leaks of sensitive data held by car dealers.

The law also requires DMS providers to integrate with third parties (like the dealerships themselves) and adopt standardized processes that will facilitate these integrations and improve compatibility between systems. The plaintiffs -- two DMS providers -- sued the state's Attorney General (along with the Arizona Automobile Dealers Association) claiming this new law violated the Constitution by compelling speech, namely the creation of new computer code and documentation.

And so, this law and its good intentions (more compatibility, better protection of sensitive data) is possibly on its way to being declared unconstitutional. As the court sees it [PDF], compelling the production of code violates the First Amendment.

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech. Plaintiffs claim that the law violates their free speech rights three ways: (1) by abridging their protected interest in exercising editorial discretion in the content of their computer systems; (2) by requiring that Plaintiffs draft code to facilitate disclosure; and (3) by functionally mandating that Plaintiffs write documents explaining the new standards they have adopted to comply with the Dealer Law. Because Plaintiffs' second proposed interest is sufficient to support its claim, the Court need not address the other assertions.

The court points to previous decisions by federal courts finding that software code is not only expressive, but worthy of First Amendment protections. Not all code falls under these protections, but the demands made by the state appear to do so in this case.

Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program. The Amended Complaint alleges "Plaintiffs must draft code to receive and respond to requests from `authorized integrators'. . . who will interact with the code by commanding it to communicate the information they choose to request." (Doc. 121 at 51.) It also states that the code will express the creative choices of the software developers and communicate those choices "to those who would access the Plaintiff's DMSs, as well as to other third-party programmers." Id. at 52. Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

The AG argued there's no First Amendment violation here because the law does not tell DMS providers what to say. It only orders them to adopt a data sharing framework that complies with the law. According to the AG, this merely mandates function and access, not how this is accomplished.

Wrong, says the court -- at least at this stage of litigation.

Plaintiffs' allegations go beyond the functional capability of their code because they claim users will interact with their program in a substantive way. Defendants' arguments that the Dealer Law is more properly considered a regulation on conduct therefore amount to disagreements about the factual consequences of the law and the drafted code.

It may be several months before this is resolved, but these arguments against the government's intrusion into private parties' software code has implications that reach beyond the specifics of this case. This is the same argument Apple made when fighting against the federal government's attempt to compel the production of an encryption backdoor in the San Bernardino case.

Under well-settled law, computer code is treated as speech within the meaning of the First Amendment.... The Supreme Court has made clear that where, as here, the government seeks to compel speech, such action triggers First Amendment protections..... Compelled speech is a content-based restriction subject to exacting scrutiny... and so may only be upheld if it is narrowly tailored to obtain a compelling state interest....

This may find its way to the appellate level if the state is unwilling to take a loss in the lower court or if the plaintiffs' First Amendment arguments are ultimately unsuccessful. Once courts start deciding code isn't speech, they invite the government to engage in far more nefarious proxy tinkering than the mild regulatory intercession on display here. Important constitutional questions are often answered during cases like these -- ones without national attention or particularly compelling plaintiffs/defendants. But they still need to be answered and courts still need to consider the long-term effects of their decisions. The First Amendment protects a lot of code, even code targeted by something more benign than a demand for an encryption backdoor.

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Filed Under: 1st amendment, arizona, compelled speech, dealer data security law, free speech, source code


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  • identicon
    Anonymous Coward, 17 Nov 2020 @ 2:06pm

    So by this theory, requiring, say, Apple, to create back doors in their software is unconstitutional? Win!

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 17 Nov 2020 @ 2:35pm

      This is where my brain went

      Yeah, does this inform the desired backdoor mandates for device security?

      It's not the ruling I want (which is for fourth and fifth amendments to prevent security sabotage mandates) but it might stall hobbled security implementation until we can assure forth and fifth amendment protections.

      reply to this | link to this | view in chronology ]

    • identicon
      Pixelation, 17 Nov 2020 @ 5:32pm

      Re:

      And Congress will happily exempt themselves.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 18 Nov 2020 @ 10:32am

        Re: Re:

        Congress does not have the authority to exempt themselves from constitutional provisions.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 18 Nov 2020 @ 11:21am

          Congress exempting itself

          Perjury on the floor is routine. I don't think they need to because prosecutors, even the Attorney General know to show discretion regarding the crimes of plutocrats, their agents and high-ranking government officials.

          reply to this | link to this | view in chronology ]

    • icon
      Narcissus (profile), 20 Nov 2020 @ 4:01am

      Re:

      So by this theory, requiring, say, Apple, to create back doors in their software is unconstitutional?

      Came here to say exactly that...

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 17 Nov 2020 @ 2:27pm

    Umm

    Explain 'Code'.
    As program coding only takes data, And generally doesnt share it unless asked/told to.
    Until recently computer code was not considered Copy written in the EU, and I dont really think it should be in the USA.
    I also dont think Comptuer code shuld be considered Speech. As Protecting it, means others can have the same opinion and USE IT.

    Speech can be Copy protected? Strange.

    reply to this | link to this | view in chronology ]

    • icon
      Darkness Of Course (profile), 17 Nov 2020 @ 3:20pm

      Re: Umm

      So, you aren't a programmer?

      Code is written in a text editor, or a IDE (like Visual Studio), which is then converted to a form to work in the environment.

      The fallacy (IMO) is the claim that they are requiring programmers to write specific code.

      The regulations aren't doing that, they are regulating what is acquired and how it is shared. However anyone solves that problem is their own problem. Their solution (in code) is the written expression of how they solved the problem and is 1st Amend protected.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 17 Nov 2020 @ 5:09pm

        Re: Re: Umm

        Dof C.
        Cobal, RPG, Basic, BAL, Fortran, and a few others..from years ago.

        Programming ISNT Speech. And saying speech is protected only means that Others can use it, and SAY it also.
        Not that iot can be controlled and regulated and copy written.

        DATA can be controlled and the collection can be Copy written, NOT the code.

        reply to this | link to this | view in chronology ]

        • icon
          ECA (profile), 17 Nov 2020 @ 5:22pm

          Re: Re: Re: Umm

          Ok,
          Lets make it simple.
          2 Companies, that create programs for DMS, are being told to Straighten it up and Standardize it(along with the Other Companies that use DMS), so that the State can use it? So that the Data is protected? Not shared?

          So a couple companies that, Probably, make allot of money for selling a Program to auto dealers, and are sitting on their Buts, making money.
          Are asked to fix a few things with the program they made, and add a few features, but they dont wanna.
          What are the Odds, they hired a programmer to Write the program, and bought it from him. And now to make Major changes, would cost them a Good amount of money, because the Original programmer NOW knows how much trhe program is worth.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Nov 2020 @ 12:18am

          Re: Re: Re: Umm

          "Programming ISNT Speech. And saying speech is protected only means that Others can use it, and SAY it also."

          Legally speaking? Yes, it certainly is. The same way math, chemistry and physics is protected speech.

          "DATA can be controlled and the collection can be Copy written, NOT the code."

          That's factual reality, yes. The law begs to differ - which is yet another way "Intellectual property" screws things up. Software patents and copyright alike try to place under control that which can only be controlled by never actually using it.

          reply to this | link to this | view in chronology ]

      • icon
        TripMN (profile), 17 Nov 2020 @ 8:21pm

        Re: Re: Umm

        Someone always jumps out of the woodwork on these discussions about "all good programmers" and other nonsense about "you use a text editor" so my TODO App deserves a spot in the Library of Congress next to For Whom the Bell Tolls. As software engineer, I'd like to shoot down the idea that software should have copyright yet again.

        1) Software is more like a recipe than a novel. It is directions for silicon wafers given life by lightning to take inputs and give outputs. Writing the code is mostly formulaic (once you know what you are trying to do) and much code that does the same function will look very similar, if not sometimes the same. The reason is that at the heart of programming is the practice of writing exacting enough instruction for a box of sand that is very good at doing very dumb things fast to do the right things when so many things can and will go wrong. You are writing procedures. And talking about how your code gets converted to a form to work in the environment, just proves that you are writing meta-procedures that an interpreter can read and write into a language that the computer understands -- even if you don't.

        2) Creativity in development is kind of a joke. What are you going to be creative with, variable and method names? Oh great, you figured out how to obfuscate what you are doing by creating an API that no sane person would want to use... Your spaghetti code is so bad the next developer that has to pick up your code will want to look up your address and murder you in your sleep. No matter how cutesy you want to be, you are still writing instructions on how to generate pi. If you really have invented a new algorithm, then patent that. Otherwise, procedures aren't copyrightable.

        3) Just because something is the length of a novel, doesn't mean it should be treated like one. No matter the size of the codebase, it isn't a creative endeavor in the same way. Adding features is still adding code that takes inputs, makes calculations, and gives outputs. It is a procedure, and procedures aren't copyrightable.

        4) But how will I ever make money as a programmer if I can't copyright my code? You aren't paid to write code, no one is paying you for your k-loc's (or if they are... hopefully you know you are taking money from idiots). You are paid to solve problems. If you could solve the problem with a no-code solution, yay! Some of the best problems are solved by erasing code, reducing bloat and stripping out previous peoples' "creativity". Some other problems involve writing new code, or adapting others code. When you sell your app to someone, they usually don't care how much code you had to write as long as it isn't too large, they are looking for a solution to a problem. Even companies buying startups "for their code" aren't buying them for the copyright in their code -- they want the trade secrets, unique solutions, the how did you solve this problem we can't/won't solve.

        And none of this involves copyrighting how to reverse a string so you can sue someone for "copying" your O(n) solution.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Nov 2020 @ 12:32am

          Re: Re: Re: Umm

          Yeah, the very idea of software patents and copyright on code is essentially as insane as trying to patent chemical or physical formulas. And it shows, when so very many major "software" companies keep caving and settling for building proprietary bling to mount on top of a FOSS core. And why almost every backend server in the world runs some derivative of Fedora or Debian Linux.

          "Some of the best problems are solved by erasing code, reducing bloat and stripping out previous peoples' "creativity"."

          Yeah, and the current market demands instead boosting that "creativity", building code a la Rube Goldberg just so there'll be a "unique" pattern to patent rather than an actual optimized program flow. At times I've wondered just how much of my CPU burns cycles on spinning programs through utterly redundant loops just because a developer somewhere decided they had to have something they could register as their own.

          As you say. Programmers and network or database admins are problem-solvers. Craftsmen, not artists.

          reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 19 Nov 2020 @ 1:37am

          Re: Re: Re: Umm

          Writing the code is mostly formulaic (once you know what you are trying to do) and much code that does the same function will look very similar, if not sometimes the same.

          Sounds to me like someone who has not written much real code. There is a lot of creativity, even if you are writing in assembler, and that is why some people's code is a pleasure to read while other code encourages you to find the author in order to murder him in his sleep.

          In larger projects, code can be communicative, as well. Been there. Done that.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2020 @ 11:12pm

      Re: Umm

      Copyright has exactly zero relationship to this.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 18 Nov 2020 @ 1:24pm

        Re: Re: Umm

        you think so?
        A display is a design created by 1 person, and few will match what others have done. and the USA is one of the FEW(that I know of) that gives CW for coding. until recently the EU denied it. But SOME major corps pushed for it.
        Even if its just the display, thats CW. "If it looks Like MINE then there is a problem", and yes thats abit stupid.
        Go look at GW basic and all the restaurants using this code, for adding up sales, and being charged $1000 per year to keep it updated with Taxes and changes. A setup with computer Was $10,000(for a basic computer with Herc graphics and a monochrome monitor.)(this is old, aint seen much of the new ones) Go out and check the price of a thermal printer for receits.

        DE a game developer, has been working on a game for 7 years, Warframe. And they are looking for programmers upto $40 per hour. but if you look up video on this game over the years, the display and many other parts have changed and changed and changed. Its asif 2-4 different programmers were working on a program NO ONE has figured out how it should look, or where the Check boxes should be. I wont say anything of falling threw the planet(Venus) ever since they made the program.
        I complain to them about being a PRETTY program and nothing more.(the models are great.)

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2020 @ 2:27pm

    WTF!?

    This is horrible reasoning.

    It's trying to make the argument that economic regulation is illegal and unconstitutional because the 1st Amendment makes compelled speech illegal and sales contracts are speech so the government can't regulate what's in the contracts.

    It's Neo-Lochnerism.

    reply to this | link to this | view in chronology ]

    • icon
      Jeroen Hellingman (profile), 18 Nov 2020 @ 12:16am

      Re: WTF!?

      Well, extend this reasoning to building codes: my building design is a first amendment protected form of speech. Your insisting that I make the beams stronger is illegal compelled speech, and the fact that the inhabitants will be killed if I don't doesn't trump my free speech rights. Wow, what a money-saver free speech is!

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Nov 2020 @ 12:38am

        Re: Re: WTF!?

        "Your insisting that I make the beams stronger is illegal compelled speech..."

        False equivalence. It's not that the government can compel you to engineer a building in a certain way. It's that if your building ends up a death trap you will be facing a thorny liability once that building collapses on someone.

        Computer code, otoh, isn't physical. It's text. Formulaic text. Government compulsion, in this case, is akin to making a law that it's illegal to solve math equations in certain given ways. Or write books containing words and sentences on a government blacklist.

        Feel free to write any security botch job you like. If you tell people it'll safeguard their money and it turns out you're wrong and knew you were then what you'll face is liability.
        Should government tell you you need to write that security in specific ways then that's a violation of 1A - dictionary-definition censorship.

        This is not rocket science.

        reply to this | link to this | view in chronology ]

        • identicon
          Not a Code Monkey, 18 Nov 2020 @ 7:05am

          Re: Re: Re: WTF!?

          Except that the law does not tell the DMS folks how they need to write their software - it says your software must be able to give out certain data when asked, and must be reasonably secure from intrusion.

          The law regulates the outputs of a product and how those outputs can be handled, just like other laws can impose regulations on a factory's chemical outputs, and how they can be handled.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 19 Nov 2020 @ 1:36am

            Re: Re: Re: Re: WTF!?

            "...it says your software must be able to give out certain data when asked, and must be reasonably secure from intrusion."

            Then they ARE telling the DMS folk how they must write their software.
            Kindly take note that if the government asks you a question as a company then as a company you need to answer the question - you are not obligated to write software to specifically answer that question or deploy a dedicated question-answering consultant as part of your EFT headcount.

            If the government orders you to employ specific software or dedicated personnel specifically to cater to the government's needs then that is clearly "compulsion".

            reply to this | link to this | view in chronology ]

          • icon
            Tanner Andrews (profile), 19 Nov 2020 @ 1:42am

            Re: Re: Re: Re: WTF!?

            The law regulates the outputs of a product and how those outputs can be handled, just like other laws can impose regulations on a factory's chemical outputs

            Right. And this ought not be a problem for either data or chemicals.

            For the past several years, governments have been requiring us to fill out specific forms in specific ways. From birth certificates, through driver's licenses, to social security and death, providing certain data in certain manners has been required. This has not been seen by the courts as a problem.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 19 Nov 2020 @ 12:01pm

              Re: Re: Re: Re: Re: WTF!?

                          … just like other laws can impose regulations on a factory's chemical outputs

              … this ought not be a problem for either data or chemicals.

              Printers' ink and paper are chemical outputs of a commercial, industrial process.

              No problem on comprehensive laws — detailed government regulations specifying exactly which impressions of printers' ink upon paper are permitted to be bound up and sold to the public?

              Printers' ink, paper, and book-bindings are chemical outputs of a commercial, industrial, factory process.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Nov 2020 @ 7:45am

          Re: Re: Re: WTF!?

          Um... if the government says do this thing or there are consequences, that's considered compelled action.

          And the government can absolutely compel people to speak, it's called a subpoena and if you don't comply they can put your ass in jail until you do, unless the testimony would incriminate you. If it won't incriminate you, you're SOL.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Nov 2020 @ 8:23am

            Re: Re: Re: Re: WTF!?

            If it won't incriminate you, you're SOL.

            O RLY? Suppose that you're an attorney, and the government subpoenas work-product that tends to criminate not you — but criminate your client?

            What's the answer, then?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 18 Nov 2020 @ 11:53am

              Re: Re: Re: Re: Re: WTF!?

              I think you misread my post.

              You can be compelled to testify so long as your testimony won't incriminate yourself. There is specifically no 5th Amendment protection from the testimony of one person incriminating another person.

              Fisher v US was about documents that were turned over to a 3rd party, in this case a lawyer, that were not themselves direct communications between client and attorney. And the court found that the 5th Amendment does not protect a person, in this case the client of the attorney, from the attorney from turning over documents that might incriminate the client because the attorney is not being incriminated by the clients documents.

              reply to this | link to this | view in chronology ]

              • icon
                Uriel-238 (profile), 18 Nov 2020 @ 1:49pm

                Fifth amendment protections

                That raises some interesting legal problems which we've been seeing the more we use communications and cloud-data services that involve third parties.

                But I can't help wonder what happens when a dependent is obligated to testify against those on whom he (she) depends. I'm pretty sure some states allow spouses protection against testifying against each other.

                But we're at a point in the US where we know the US Supreme Court is actively chipping away at the bill of rights as it applies to human beings in order to secure institutional powers, and this is going to continue with the Barrett Supreme Court.

                But this only tells us what the federal government rules what rights are held by the US public, as opposed to what rights should be retained by the US public.

                reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 19 Nov 2020 @ 1:38am

            Re: Re: Re: Re: WTF!?

            "And the government can absolutely compel people to speak, it's called a subpoena..."

            The fact that subpoenas are both targeted to specific action and individuals and subject to extensive high-level legal scrutiny on a regular basis should tell you that you don't need to include that as a demonstration as to why the government should be allowed to order a business when it comes to how their software must be written.

            reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 17 Nov 2020 @ 3:09pm

    Recognizing that code is speech is a good thing.

    I'm not so sure about the rest of it.

    reply to this | link to this | view in chronology ]

  • identicon
    bt, 17 Nov 2020 @ 3:14pm

    Is there anything that's not speech for these people?

    Speech is becoming anything conservatives want to do. Also religion.

    No one may stop a conservative from speaking and worshiping, therefore no regulations they dislike may be applied.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 17 Nov 2020 @ 3:22pm

      hate speech and incitement as religion

      The thing with freedom to practice as it's being applied by the courts is it only seems to apply to Christianity, specifically, Catholicism and Protestant Evangelism which both share disdain for women's rights and LGBT+ rights.

      But as soon those are challenged (say by Muslims who don't want infidels to have the same rights as they, or Mormons who don't want black people to have the same rights as they) the bias becomes more evident. They just don't even look at those examples.

      And as secular interests are irreligious, they're not protected by the same freedom of religion interpretation.

      Ultimately, it's a justification for the rights of an overclass to discriminate against the underclass, once again justified by religion. And yes, offense is taken when we point out religion was used to justify slavery, except they keep doing that very thing.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2020 @ 4:08pm

      Re:

      At this point, free speech is nothing more than a co-opted tool used by the corrupt to disbar and disregard the rights of others. Most often it is used to benefit corporations over actual human beings.

      Of course, the concept of "your rights end where mine begin" never enters into the conversation. Somehow the corporation is always more equal than a human being is when it comes to the expression of their rights.

      But I suppose that's in line with the way the country has been going for these last few years. The idea that the victims are always at fault for whatever happens to them. Never mind the often "forced on to the victims against their will" nature of the affliction. The bad actors are always found innocent of taking advantage of people. Or the ability for those victims to seek reparations has been curtailed. Forced arbitration, class action waivers, contracts of adhesion, and soon blanket immunity from prosecution (for Covid-19, at first) just to name a few. This society seems to think that it can take advantage of anyone and everyone it pleases without consequence.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 17 Nov 2020 @ 4:49pm

        "the corporation is always more equal than a human being"

        This is the axiom that I am worried informs the Federalist Society capture of the US Supreme Court.

        I'm afraid human rights are going to vanish to give way to institutional powers.

        Of course this is one of those steps towards events happening in Boston, like Tea Parties and Massacres.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2020 @ 3:31pm

    Exacting scrutiny

    Can anyone here explain the difference between exacting scrutiny and “normal” scrutiny?

     

     

    (I'm heading back right now to keep up on ‘Rudy does Pennsylvania’, but I'll show up again here in a while to see if anyone here can give me a concise anwer.)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2020 @ 4:08pm

      Re: Exacting scrutiny

      Normal scrutiny is a damn low bar - it only means there needs to be a legitimate purpose for the government and it ignores all matters of sense. A law requiring houses to have a penis painted on them to boost tourism revenues would be a legitimate purpose even if it is incredibly stupid and doesn't actually contribute to it.

      Exacting scrutiny implies a very high standard above even strict scrutiny. The government needs to show a compelling need and be evenly applied in the law. So banning human sacrifice as murder and infringement of the victim's right to life would be a compelling need that overrides freedom of religion. Banning only human sacrificss to Baal but not to Baphomet would run afoul of the constitution for instance.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Nov 2020 @ 12:43pm

        Re: Re: Exacting scrutiny

        But see Clay Calvert, Is Everything a Full-Blown First Amendment Case After Becerra and Janus? ..., 2019 MICH. ST. L. REV. 73, 127

        Exacting scrutiny therefore appears to fall somewhere between strict and intermediate scrutiny[note 393], with the latter typically requiring only a significant government interest rather than a compelling one.

        [Note 393] See R. George Wright, A Hard Look at Exacting Scrutiny, 85 UMKC L. REV. 207, 210 (2016) (describing an “understandable temptation to think of exacting scrutiny, as formulated above, as occupying a position between strict scrutiny and either intermediate or minimum scrutiny”).

        (Note 394 omitted. Hyperlink added in note 393.)

        Although, from the very same page cited in that note 393:

        In fact, the logic of exacting scrutiny may well sometimes call for a government interest test that is even more demanding than the classic compelling government interest test under strict scrutiny.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2020 @ 4:09pm

      Re: Exacting scrutiny

      Abbreviated transcript courtesy @Tierney_Megan—

      Judge: What standard of review should i apply?

      Giuliani: I think the normal one

      Judge: Strict scrutiny?

      Giuliani: No, the normal scrutiny

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 17 Nov 2020 @ 3:55pm

    The AG argued there's no First Amendment violation here because the law does not tell DMS providers what to say. It only orders them to adopt a data sharing framework that complies with the law. According to the AG, this merely mandates function and access, not how this is accomplished.

    'I'm not telling them what to say...' becomes a lot less persuasive when it's followed by '... so long as what they say matches what I want.'

    After the whole Apple debacle and with the ongoing crusade against encryption I have no doubt that numerous people in the FBI and DOJ are looking at this case very closely, as being able to mandate access 'as required by law' is exactly what they've been trying to get and they would love having precedent granting that they can build off of.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2020 @ 4:34pm

      Re:

      After the whole Apple debacle and with the ongoing crusade against encryption I have no doubt that numerous people in the FBI and DOJ are looking at this case very closely, as being able to mandate access 'as required by law' is exactly what they've been trying to get and they would love having precedent granting that they can build off of.

      If they had been on the ball to begin with, they'd already have their backdoor in Apple products.

      Why? Every company loves muddying the waters when it comes to sold vs. licensed. Reverse engineering our products to run unapproved software or to make unauthorized repairs? Sorry, you only licensed our product subject to terms that prohibit you from doing that. Legal liability for a crime enabled by our products? Nope, we sold the product to them, we have no control over what they do with the product post-sale.

      Hell, every Apple device only boots if the initial bootloader code is signed by Apple, and that code will only allow full startup under Apple's terms without legally questionable alteration. Even better, that code once started will only allow software that has also been signed by Apple to run. Again without legally questionable alteration. (At the very least you violate the EULA and ToS by doing so. Which also strips you of any right to use the device as a consequence.) Given that without any code to run, the device is useless for it's intended purpose, it's pretty hard to say that the end user owns the device. Ownership implies being able to control it. Actions which Apple has taken multiple deliberate measures, both legal and technological, to prevent the end user from performing.

      Everything requires Apple's approval, and forcing that approval would violate Apple's freedom of speech. That is what the court found when passing judgement on the Apple VS. FBI case. Had any competent lawyer been paying attention, however that ruling is also the ultimate proof of Apple's direct ownership of all Apple devices: Apple devices won't do anything without Apple's approval. With this ruling, all the government needs to do is walk Apple back into court and claim Apple as the device owner. Something tells me that Apple would very quickly find itself in legal hot water under those circumstances. Especially in cases where the evidence was already known to exist on the device. Apple's constant claims of inability to open it will only anger judges, and I'd imagine lead to a very quick solution being developed.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 17 Nov 2020 @ 4:57pm

        'Okay, I own the device. I don't have the key though, so...'

        With this ruling, all the government needs to do is walk Apple back into court and claim Apple as the device owner.

        Uhh... no? Just because they own the code that's required to run the device as sold and under the TOS does not mean they own the device, as otherwise they'd be able to do whatever they wanted with the hardware, from demand people return them for whatever reason('Oh look, we've got a new iThing, now that your previous one's gone...'), give the device to someone else on a whim and so on, but even if a judge accepted that argument they'd still run right into the very same problems that have already been brought up relating to forcing them to create special code to bypass the protections they put in place, and demanding that if current systems can't be accessed then they should be forced to only use 'lawful access viable' OS' in the future would be a non-starter as well as there's nothing I'm aware of that says that if you create a code or lock you must also create a key for others to use if needed, though not for lack of trying and desires from the anti-encryption/pro-criminal access crowd.

        reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 17 Nov 2020 @ 4:09pm

    A tough argument...

    This ruling would overturn the ability of the government to regulate anything. Some other examples of "compelled speech"
    1) Airworthiness certifications to the FAA.
    2) Drug and vaccine testing to get FDA approval.
    3) SEC filing requirements and financial reporting standards
    4) Testimony under oath/subpoena.

    There is plenty of precedent that the government can compel certain kinds of speech when the circumstances warrant. It's probably worth getting the boundaries of this compulsion with respect to code into case law.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2020 @ 4:22pm

      Re: A tough argument...

      4 is already prohibited, but under the 5th amendment.

      reply to this | link to this | view in chronology ]

      • identicon
        Ian Williams, 18 Nov 2020 @ 6:01am

        Re: Re: A tough argument...

        Only if the evidence or testimony would be self-incriminating, if it's not then the government can compel you to testify or produce materials.

        reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Nov 2020 @ 12:56am

      Re: A tough argument...

      "This ruling would overturn the ability of the government to regulate anything. Some other examples of "compelled speech""

      False equivalence. Seriously.

      1) It is unlawful to lie about the airworthiness of your aircraft. The regulation specifies only that if you take an aircraft carrying passengers into the air and it fails to meet security standards then you are liable for reckless endangerment. Feel free to fill in any certificate with Tennison prose. It's just that you don't get to cross US airspace in a vehicle you can't demonstrate works properly.

      2) Freedom of speech does not mean a company gets to walk if they poison ten thousand patients when selling "Medicine". You conflate "free speech" with "commercial fraud" and "manslaughter".

      3) Once again what does "free speech" have to do with "intentional fraud"? You are not free to steal someones money, whether you acquire it by undoing security with a set of lockpicks or with your tongue.

      4) You are free to take the fifth and refuse to say anything. If you DO show up in court, solemnly swear before a judge and jury to tell the truth and nothing but the truth, then lie your head off that's your prerogative. Speech carries consequences however, so you'll get hit with a perjury charge or at least contempt of court.

      "There is plenty of precedent that the government can compel certain kinds of speech when the circumstances warrant."

      Nope. Not a single one. Under 1A the government will never approach you and tell you what you need to say and where.
      It may withhold permissions and licenses if you do not satisfactorily answer questions - as in certification.
      It may penalize you if you choose to answer a question and then present a lie.

      But what you say in public or in private is none of the government's affairs under any but a very few exceptions; Main exception outright being the espionage act which, if invoked, will fuck 1A right up the ass.

      reply to this | link to this | view in chronology ]

      • identicon
        Ian Williams, 18 Nov 2020 @ 5:44am

        Re: Re: A tough argument...

        Well, if that's your argument, then the same applies in this case, the Government of Arizona isn't actually compelling the software company to speak, they're just denying the dealers who might buy their software a licence to sell cars in Arizona if they don't certify that they're using software that meets the state standards.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 19 Nov 2020 @ 1:50am

          Re: Re: Re: A tough argument...

          "...the Government of Arizona isn't actually compelling the software company to speak, they're just denying the dealers who might buy their software a licence to sell cars in Arizona if they don't certify that they're using software that meets the state standards."

          Eh, they could. But then government would have to ask the same of ANY vendor employing software with similar function. I'm not sure inviting a thousand lawsuits and a supreme court hearing is a good way to go.

          Normally what government does is that it specifies a consumer privacy/safety standard which must be met. How, specifically, private entities meet that standard is not for government to say as long as the methods are fully legal.

          To encourage the automotive industry to come up with a standard which fulfills all the criteria given in the OP is OK. To mandate what that standard must look like and function probably isn't.
          Especially when it means the state is ordering a private entity to monitor and surveill a third party.

          reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 18 Nov 2020 @ 8:43am

        Re: Re: A tough argument...

        Nope. Not a single one. Under 1A the government will never approach you and tell you what you need to say and where.

        It may withhold permissions and licenses if you do not satisfactorily answer questions - as in certification.

        It can prohibit you from operating in a particular market without complying with safety guidelines, which may include labeling your product in a particular way. I'm not seeing a lot of daylight between that and this, though I understand your concern about how this might be applied to other compulsory "features" like encryption backdoors.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Nov 2020 @ 9:05am

          Re: Re: Re: A tough argument...

          … labeling your product in a particular way.

          The State [may] prescribe what shall be orthodox in commercial advertising.

          But may the government, say the Consumer Product Safety Commission or some such agency, constitutionally demand that Twitter label Trump's Tweets as, “Harmful election-related propaganda” ?

          reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 18 Nov 2020 @ 11:17am

        Not a single one.

        Doesn't the listing of ingredients on the packaging of food and drug items would qualify as compelled speech? Here in the US, food packaging suitable for market have to include ingredients and nutrition facts. Also, an expiration dates that apply.

        (Contrast pet products. As I learned getting fresh catnip for my feline companion.)

        Also abortion providers in some states are mandated by state law to make a state-provided statement including false claims about abortion, the viability of fetuses at certain ages, and about morality.

        Curiously, when religious-based crisis pregnancy centers were required by law to admit up front they did not provide or refer abortions (and a list of nearby abortion providers) that was struck down the Gorsuch Supreme Court.

        IANAL and would have to nerd harder than I have to understand how these might inform mandated code (or mandates against using certain code). But I know that we do sometimes mandate both speech and silence, even when such laws are obviously political.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 19 Nov 2020 @ 1:59am

          Re: Not a single one.

          "Also abortion providers in some states are mandated by state law to make a state-provided statement including false claims about abortion, the viability of fetuses at certain ages, and about morality."

          Yeah, that one's iffy as hell, really. The state could ask the medical practicioner to be as truthful and accurate as possible visavi their patient and insist any significant side effects of a procedure are covered.

          And if those states weren't stacked to the rafters with religious zealots those provisions would be overturned in a hurry.

          "Doesn't the listing of ingredients on the packaging of food and drug items would qualify as compelled speech?"

          Not as such. To bring the example back to the OP compelled speech would be if the food and drug vendor was forced to write software monitoring the use to which third parties put those foods and drugs.

          That's the difference here. Yeah, the end goal of this specific law is praiseworthy. The mechanism is horrible. Because a likely analogy is to force computer OEM's to include firmware which forwards user data to third parties and arbitrarily decides which suite of AV's and firewalls you need to have installed.

          You know how we can tell Bill Barr hasn't seen that law? He doesn't have the look of a man given an unexpected blow job on camera, that's how.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Nov 2020 @ 9:07am

            Re: Re: Not a single one.

                        … abortion providers in some states…

            Yeah, that one's iffy as hell, really.

            Justice Thomas' attempt in NIFLA v Becerra (2018) to distinguish that recent case from the earlier case of Planned Parenthood v Casey (1992) is not one of the Court's most enlightening moves.

            Perhaps the Ninth Circuit's en banc decision, post-NIFLA, in American Beverage Ass'n v San Francisco (9th Cir. 2019), which dials down the setting from the highly-charged topic of abortion to the less-religious topic of “sugar-sweetened beverage warnings”, maps out how to reconcile current compelled-speech doctrine.

            Perhaps?

             

            Anyhow, Arizona, of course, is in the Ninth Circuit.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2020 @ 7:25pm

    CDK Global LLC v Brnovich

    Docket (RECAP) for CDK Global LLC v Brnovich (D.Ariz. 2:19-cv-04849)

    reply to this | link to this | view in chronology ]

  • icon
    John William Nelson (profile), 17 Nov 2020 @ 7:59pm

    Motion to Dismiss stage is very early; this means little

    This is at the motion to dismiss stage. This is early. This stage is at the Answer stage of a lawsuit—the first thing defendants do after being served with the lawsuit.

    All this means is that the lawyers for the plaintiffs are competent enough to draft a complaint that ticks all the elemental boxes and provides enough facts to support those elements.

    It is important to understand that, at this stage, the court is NOT stating that the alleged facts are true. In fact, if you the "Legal Standard" section starting on Page 2 of the opinion, they CANNOT make an opinion on the facts. At this stage, all the facts in the Complaint are viewed as true and accurate for the purposes of the motion.

    Don't get me wrong—this may be a case that deserved to be kicked at this stage—but many judges will let discovery proceed and let this issues be resolved at summary judgment.

    To really prevail, the defendants needed to show that EVEN IF all of the facts alleged were true, there STILL was no claim to be had. The judge decided that the facts were sufficient, if true, to raise a claim for infringing the plaintiff's first amendment rights.

    Still, having had to deal with motions to dismiss in my own cases, and having judges find that the copious facts alleged in my complaint were not sufficient—or overlooking some facts and highlighting others in finding insufficiency—I can tell you a judge likely COULD have granted the motion.

    This may come down to political and legal ideology. Or it could come down to views on the roles of motions to dismiss versus motions for summary judgment versus trial. Or it could be the judge is no fan of the legal team presenting arguments because of antics in past cases.

    Litigation, sadly, is no science. And judges are not legal computers. Or, if they are, then the AIs have been trained on widely divergent datasets.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 17 Nov 2020 @ 8:51pm

    Something something just impose penalties that are so costly on them that creating the desired system is actually a better outcome for them.

    We have breaches not disclosed for almost a year in some cases, the barn door open, the horses stolen, the barn burned down, rebuilt, new horses brought in before they admit they sold the gas to the arsonist.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 12:40am

    If compelling companies to write things is unconstitutional, then, what about, securities registrations and required audit reports, income tax returns, environmental studies, medical disclosures, etc. etc. Or, am I misunderstanding? Code is protected speech, but written documents aren't?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2020 @ 1:45am

      What about? [was Re: ]

      If compelling companies to write things is unconstitutional, then, what about…

      Is it relatively uncontroversial that even a for-profit corporation may not be required to recite the pledge of allegiance?

      Or does Congress have the constitutional power to require, by law, that every business involved in interstate or foreign commerce shall, at the beginning of each employee shift, stand up and pledge allegiance to the flag …?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 4:20am

    Interesting this is considered to be compelled speech, whereas many other instances are not.

    Is being encouraged to tell the truth considered compelled speech?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 5:34am

    Something like this can't possibly be the first legal requirement for computer security in the US.

    Can it?

    reply to this | link to this | view in chronology ]

  • identicon
    Jamie, 18 Nov 2020 @ 5:40pm

    Practically speaking, this isn't a big deal for policy implementation of the sort they were trying for.

    Instead of regulating the software, you regulate the users and mandate whatever method they choose have the properties that meet their policy goals. Now the vendor can choose to implement a feature set erstwhile-customers need, or not.

    It does do all sorts of interesting things to other areas, though. I think it could have really surprising retroactive effects. For instance I could see two safety regulations with the same functional effect, but one being declared out of bounds simply based on the wording.

    reply to this | link to this | view in chronology ]


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