Code, Speech and Action

Neil Richards writes in Technology Review about Apple’s attempt to defend itself in the San Bernadino IPhone case by claiming protection under the First Amendment (i.e code = speech).

As Kate Crawford points out, the danger of this approach is that equating code with speech could allow algorithms to act in discriminatory ways under First Amendment protection.

It seems to me that a key distinction here is speech vs action. Algorithms that make decision might be viewed as “acting” and there’s no First Amendment protection for actions that can discriminate. But then again, I’m not a lawyer.

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