Free Speech

The First Amendment and Mandated Creation of Computer Code

"Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program" and thus implicates the First Amendment.

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From CDK Global LLC v. Brnovich, decided last week by Judge Grant Murray Snow (D. Ariz.):

Plaintiffs CDK Global LLC and Reynolds and Reynolds Company … develop, own, and operate proprietary computer systems known as dealer management systems ("DMSs") that process vast amounts of data sourced from various parties. Automotive dealerships hold licenses to DMSs to help manage their business operations, including handling confidential consumer and proprietary data, processing transactions, and managing data communications between dealers, customers, car manufacturers, credit bureaus, and other third parties…. Plaintiffs … contractually prohibit dealers from granting third parties access to their DMSs without Plaintiffs' authorization.

In March 2019, the Arizona Legislature passed the Dealer Data Security Law …. The Dealer Law regulates the relationship between DMS licensers like Plaintiffs and the dealerships they serve. Under the Dealer Law, DMS providers may no longer "[p]rohibit[] a third party [that has been authorized by the Dealer and] that has satisfied or is compliant with … current, applicable security standards published by the standards for technology in automotive retail [ (STAR standards)] … from integrating into the dealer's [DMS] or plac[e] an unreasonable restriction on integration…."

The Dealer Law also requires that DMS providers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from [a DMS]" that is compatible with STAR standards and that they "[p]rovide access to open application programming interfaces to authorized integrators." Finally, a DMS provider may only use data to the extent permitted in the DMS provider's agreement with the dealer, must permit dealer termination of such agreement, and "must work to ensure a secure transition of all protected dealer data to a successor dealer data vendor or authorized integrator" upon termination….

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech … by requiring that Plaintiffs draft code to facilitate disclosure …. It is well-established that "computer code, and computer programs constructed from code can merit First Amendment protection." Universal City Studios, Inc. v. Corley (2d Cir. 2001); see also United States v. Elcom Ltd. (N.D. Cal. 2002) ("[c]omputer software is … speech that is protected at some level by the First Amendment").

However, not all code rises to the level of protected speech under the First Amendment. Rather, there are "two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected)." Further, even where code communicates to the user of a program, it still may not constitute protected speech under the First Amendment if it "commands 'mechanically' and 'without the intercession of the mind or the will of the recipient.'"

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." 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." Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

Defendants argue the Dealer Law cannot compel speech because it does not dictate what Plaintiffs' code must say, only that dealers must adopt a framework to share data from their DMSs. Ariz. Rev. Stat. Ann. § 28-4654 (requiring that Dealers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from dealer data systems with authorized integrators and the retrieval of data by authorized integrators using the star standards or a standard that is compatible with the star standards."). They contend that, by mandating only access, the Dealer Law regulates Plaintiffs' conduct, not speech.

Corley acknowledged this possibility, clarifying that the mere "functional capability" of a code did not implicate First Amendment Protection. But 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. Such a contention cannot be resolved at the Motion to Dismiss stage.

{Moreover, the mere assertion that the law regulates conduct does not establish failure to state a claim under the First Amendment. Even where a law is aimed only at conduct, an incidental burden on speech triggers scrutiny—it must be "no greater than essential." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006) (finding that a burden is no greater than essential when "neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.").}

I'm not sure what I think about this, but I thought some of our readers would find it interesting.

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  1. The 1A argument is an odd take but OK.

    I’m wondering how a state can dictate to a private company who they give access to proprietary information.

    Isn’t this more of a Takings case where the govt is taking “property?”

  2. That is some obtuse stuff. As a programmer, it sounds like they are saying if a user is just doing a data dump, it’s that mechanical aspect, but if they are using it as its intended function, as a tool to poke around and search intelligently (by the user) for certain things, then it’s more than that.

    It’s tough to discern the motivation, it touched on maybe swapping to a new DMS and porting your info, or maybe it was the DMS people not wanting 3rd parties to connect to it and use it without another licensing agreement?

  3. “two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected).”

    so programmer to computer is never protected free speech, if i read this correctly? Yet it is copy writable according to google v oracle over the java api.

    “It should not be forgotten that the Framers intended copyright itself to be an engine of free expression.”
    Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 1985.

  4. First thought: Pretty interesting. Illustrates, to me, what happens when government follows its twisted meddling to the logical next step.

    Second thought refers to the late 1990s anti-trust trial against Microsoft. I thought that was a bone-headed waste of judicial resources. I also detested Microsoft, still do now but for different reasons. What I hated then, among many other things, was how every new version of Word wrote files in a format that previous versions could not read. People documented how the changes were always pointless reshuffling of components, trivial inconsequential changes solely for the sake of preventing prior versions from reading the documents. Suppose a business had 1000 copies of Word version NN, hired a new employee who needed Word on his new company computer, and the only available copy was version NN+1; no one could read documents from his computer, so the company had to buy 1000 new copies of version NN+1. Why companies put up with that, I will never fully understand, but that was their business decision.

    One thing I did not understand about the anti-trust trial was why they focused on Netscape Navigator vs Microsoft Explorer, both of which were given away for free. Why not focus on the actual monetary harm to consumers of Word versioning? There was some real damage that might have had a lot of cheering-on from the business community.

    I see those two cited decisions were after the anti-trust trial ended. I wonder if Microsoft might have tried the same defense as here.

  5. Reading this made my head hurt. I probably just don’t grasp the factual and legal points being made. I kept thinking of mandatory disclosures, such as Prop. 65 warnings in California, or consumer protection disclosures. Wouldn’t the logic of this ruling apply to those? Now maybe the answer is that such disclosures also implicate the 1A, but in most cases survive judicial review. (I’m thinking of the crisis pregnancy center case at SCOTUS a few years back that struck down certain mandatory disclosures, and a recent 9th Circuit opinion upholding mandatory disclosure by cell phone retailers in San Francisco, IIRC.)

  6. It is interesting. And the wrong way to solve this problem entirely. If the dealerships want an open-platform DMS, they are free to create one or to pay someone else to write one. Or to negotiate with a current vendor to open up their protocols. Crying to the legislature to force a business partner to do something they don’t want to do is just bullying. The “Dealers Law” was naked cronyism and it’s sad to see companies have to resort to these twisty justifications to overturn bad laws.

  7. In several contexts, I’ve learned that auto dealers are among the most potent lobbyists in the nation. Almost always, they get what they want.

  8. Incidentally (probably not really germane to the post), GM Snow is also the judge who ordered Sheriff Joe Arpaio to stop his people pulling over Hispanic-appearing motorists and detaining them longer than the time allowed by current Fourth-Amendment jurisprudence (I think the limit is 25 minutes unless the cop finds evidence of a crime. Hispanic appearance is not considered evidence of a crime, because, although ENTERING illegally is a crime, BEING HERE illegally is only a tort.)

    1. Oops, forgot to add, GM Snow also found Arpaio in contempt for defying the order. Arpaio’s appeal was in progress when Trump pardoned him (Arpaio).

  9. Under this logic, all laws that mandate disclosures to consumers is unconstitutional, such as rights to educational records, credit bureau records, and medical records. I think this is taking 1A too far.

  10. plaintiffs are full of it – they’re just trying a 1A argument before they go with a trade secret or copyright argument; the law seems to want to proscribe specific features in the plaintiff’s closed platform, and to limit some plaintiff’s use of their customers’ data; also sounds like the dealers have found themselves tightly locked in to a vendor and haven’t contracted well (in terms of owning their data and having the right to port it out); APIs, data standardization frameworks, and data integration are all perfect examples of the kind of code that is *not* protected, imho

  11. Say that you’re programming a jumbotron outside of your car dealership as directed by a civil judgment. This jumbotron. like all hypothetical jumbotrons, runs on BASIC:

    10 REM Fight the power
    20 Print “BLM”
    30 CLS
    40 GOTO 10

    Your assistant accidentally, however, types this in design view rather than code view, so the text itself appears on the jumbotron. Clearly, a 1A claim wouldn’t lie for the actual speech, but for what you thought would happen. Your composition of code with the intention that a machine do a certain thing is the speech, and your expressive choices therefore have no 1A value in themselves as discrete choices — only as intended actions of a machine. That is literally the language that they’re written in.

    So if the code is written anonymously, and speech to the computer itself is unprotected, and the end user doesn’t know who you are, instructions composed with the intent that the machine should perform a certain action could never be speech on your part. But there is, on the other hand, expressive content in the code that you provide to the computer operator, a bit like a cake decorator being forced to craft a cake pleasing to the event planner. Arguably, though, this expressive content could never become speech to the end user, because the intent of the creator was always to create an anonymous action of the machine.

    Top of the head, likely wrong, etc. Cheers.

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