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Most people have heard of computer viruses and recognize that like viruses in the human body, they can cause damage. Many people have lost data, time, and money to computer viruses. Many want to see legislation to prevent and to punish people who write, distribute, and release viruses. However, there are First Amendment issues surrounding computer viruses because some people consider them free speech. Also, all viruses are not harmful and some are used for research and academic purposes.
A debate has arisen about whether computer viruses are free speech and whether they should be protected under the First Amendment. For people who believe computer viruses should be protected under the First Amendment, the debate has the added dimension of deciding computer virus legislation.
This paper examines the arguments for and against First Amendment protection for viruses and then discusses some reasonable restrictions on laws prohibiting viruses.
Before discussing the constitutionality of a computer virus, definitions of computer viruses and the First Amendment are presented. These brief discussions point out that a universally accepted definition of viruses does not exist, that the First Amendment is not uniformly applied to all situations, and that technological advances have blurred the current First Amendment applications. This lack of a clear definition of a computer virus and a rapidly changing First Amendment model further clouds the debate.
After those definitions, the arguments against virus protection under the First Amendment are presented. The government needs to protect computer users as they protect consumers from false commercial speech. Disruptive and destructive behavior should not be constitutionally protected.
Arguments for virus protection are presented. Viruses are a form of writing, and writing is protected under the First Amendment. Banning viruses would be a form of censorship, or prior restraint.
Finally, reasonable restrictions on virus legislation will be presented through discussion of three levels of virus protection.
The book The Computer Virus Crisis offers two definitions of computer viruses. One definition states that a computer virus is malicious software that replicates itself. The other definition states that a computer virus need not be harmful, eventhough it is a program that does something unintended, such as erasing parts of the host program, damaging data, or printing a message on the screen. The significant characteristic of a virus is that it attaches itself to another program and reproduces (Fites, Johnston, and Kratz, p. 7). The important point is that there is not an agreed upon definition of computer viruses. One states that they are malicious, the other says they need not be harmful.
Most viruses are associated with IBM PC's (and compatibles) and Apple Macintoshes. It is technically possible to write viruses for UNIX and mainframe machines, but viruses are rare in these environments. Viruses are most often spread via the exchange of disks or the downloading of software from Bulletin Board Systems (BBS) (Fites, Johnston, and Kratz, p. 11).
The First Amendment forbids the government from interfering with freedom of speech. However, application of the First Amendment depends on a variety of factors (Samuelson, p. 19). The First Amendment is not taken literally and the level of protection depends on the content and the medium. For instance, obscenity, commercial speech, and defamatory remarks receive little First Amendment protection. Newspapers have the greatest amount of protection under the First Amendment. Television receives less protection due to a limited number of broadcast frequencies (Harvard Law Review, pp. 1069-72).
Typically, courts use First Amendment models already in use to analogize new technologies, but there are no comparative models for computers and computer networks (Naughton, p. 412). To further complicate matters, lines of distinction in the media are being blurred by technological advances. For example, phone service can deliver video, and cable can deliver phone service (Sussman, p. 58). Cable has also removed the previous limit on the number of broadcast frequencies.
All of these factors cloud the application of the First Amendment and leave some doubt as to which direction the courts will take. The Harvard Law Review urges that the messages should be examined, not the medium of the transmission (Harvard Law Review, p. 1063). This paper heeds that advice by only examining the message and ignoring the medium.
David Stang, chairman of the International Computer Security Association, believes that all viruses are evil by nature and are designed to disrupt data (Daly 1992, p. 6). Even benign viruses can slow processing. For instance, the European Space Agency discovered a virus which distorts map images from a satellite due to the fractionally slower processing speed caused by the virus. (Dumbill, p. 107).
If all viruses were "evil," federal regulation would be possible. In general, regulation under the First Amendment is acceptable if the regulation is reasonably related to achievement of important government objectives and narrowly tailored (Samuelson, p. 22). Commercial speech has limited First Amendment protection because protecting consumers from deceptive advertisements is viewed as an important government objective.
Given the arguments that all viruses do damage and that the government might have an important objective in protecting computers from viruses, it is reasonable to argue that viruses should not be protected under the First Amendment. However, Federal Judge T.S. Ellis ruled that because the First Amendment is involved, the government may not limit speech unless it is "narrowly tailored to serve significant government interest." (New York Times, p. D5). Significant government interest is difficult to show and, typically, is reserved for extreme examples such as preventing publication of troop movements. Restricting viruses is not a significant government objective.
A different argument comes from Eugene Spafford of Purdue University. Spafford is concerned with the allowable limits of expressions under the First Amendment, because what is expressed on computers has so many new and unforeseen dimensions. He is concerned that disruptive or destructive behavior might be constitutionally protected. Such destructive behavior might include sending an active computer virus along a computer network or, as another author, Michael Schrage, suggests, sending an active virus which prevents other people from exercising their freedom of speech by filtering or blocking messages (Brody, p. 42). Spafford believes constitutional protection should not be given to disruptive and destructive behavior. He suggests that such behaviors might lead to a future where U.S. networks are prohibited from connecting to international networks because U.S. laws protect actions contrary to international law and custom (Spafford, p. 38).
Although Spafford's concerns are well-intentioned, he ignores the First Amendment. The First Amendment is the foundation of American society, and it protects ideas which may advance it. Computer viruses may not be popular, but it is possible that they may lead to some important technical advances in the future. Constitutional protection cannot be removed because some individuals abuse those privileges. If the abuse harms another person, society can construct specific laws to punish the criminal behavior without removing constitutional protection. WARNING TO THE READER: This paragraph shows strong opinion and is not cited. It may be considered conjecture and is not of proper form according to the term paper guide. In defense of the author, this was not considered wrong at the time he wrote the paper.
Peter Tippet, who has developed sample anti-virus legislation as Director of Security at Symantec Corporation, states that software is thought of as writing and writing is protected by the First Amendment (Daly 1993, p. 15). Since a virus is a software program, it would be considered as writing and, thus, protected under the First Amendment. In an interview with some virus creators, the creators referred to themselves as authors and stated that they are not interested in causing harm (Alexander, p. 1). In fact, one author, Mark Ludwig, has published a book, The Little Black Book of Computer Viruses. Ludwig says that computer viruses are not evil and that programmers have the right to create, possess, and experiment with them. He says that his book assists computer security people because they need to know what a virus looks like and how it behaves (Daly 1992, p. 4).
The Peace Virus is an example of a benign virus. The Peace Virus simply places a message of "best wishes" on the screen. The program disappears without a trace and causes no damage. Benign viruses highlight the point that prior restraint on expressions would be a violation of the First Amendment (Korn and Blankenheimer, p. 33). More importantly, prior restraint would limit the flow of information. Marc Rotenberg, the Director of the Computer Professionals for Social Responsibility, cautions about the government restricting the exchange of information, because a free flow of information is important to technical innovation (Rotenberg, p. 40).
Prior restraint does not release a speaker or author from the responsibility of his or her actions. The speech may be protected under the First Amendment, but if the conduct is illegal, the First Amendment does not offer protection (Trubow, p. 97). The key point is whether the virus is active or not. A program listing of a virus is not harmful unless it becomes a running program. An active virus can do damage, and the author should be held accountable for the destructive program. As the judge from a First Amendment computer case said, "The First Amendment doesn't act as a shield to preclude prosecution simply because the criminal conduct involves free speech" (Parker, p. 34).
There are basically three views on the limits of legislation for computer viruses. Scott Charney, chief of the Computer Crime Unit, Criminal Division, U.S. Department of Justice, represents the first point of view. He believes that the 1986 Computer Fraud and Abuse Act should be updated to criminalize viruses (Charney, p. 33). However, many complications arise by simply criminalizing viruses. If all viruses were illegal, the Peace Virus and the Brain Virus would receive the same punishment.
Dorothy Denning, a noted computer legal expert, demonstrates the second point of view. She believes there should be a range of offenses modeled after the United Kingdom's Computer Misuse Act which has punishments of six months to five years imprisonment (Denning, p. 32). Releasing a malicious virus that damages a large quantity of data would not be viewed in the same light as releasing a virus which printed a message of peace and disappeared.
The third point of view is to have no virus legislation. Peter Tippett believes that viruses should not be banned because they are used for scholarly study (Daly 1993, p. 15). Richard Stallman, founder of the GNU project (a provider of freeware), believes that it is superfluous to prosecute offenses that can be more easily prevented by carefully maintaining computer security (Stallman, p. 41).
Most states have legislation against computer crimes, including viruses (Lyman, p. 613). However, computer crimes are a low priority because there is no bodily injury. If a conviction is made, the sentence often is light (Ciongoli, DeMarrais and Wehner, p. 445). With current legislation not being enforced, why have it? The most reasonable "legislation" may be good computer security along with technical solutions. Numerous software packages scan for viruses, and other technical solutions are improving. In July 1994, IBM announced they were developing an immune system for computers modeled after biological immune systems (Stix, p. 97).
If security and technical solutions fail, individuals still have recourse because tort remedies exist (Korn and Blankenheimer, p. 33). Under a tort remedy, a person can sue for damages and take the perpetrator's assets. This kind of legislation can work if the perpetrator is in the United States, but what if the virus author lives in another country? (EDITOR'S NOTE: rhetorical questions are only good as openers. No question should go unanswered. In this case, it is appropriate because the answer follows.)
Viruses are not a uniquely American problem. The Brain Virus originated in Pakistan (Fites, Johnston, and Kratz, p. 15), and plenty of other viruses are written outside the United States. American legislation is not going to be able to punish these people. So the best defense against these attacks remains good security and technical solutions. Improved solutions will only result by maintaining a free exchange of information about virus research.
This paper discussed arguments for and against protection of computer viruses under the First Amendment. I believe that viruses are a form of writing, and since writing is protected under the First Amendment, viruses also should be protected. I believe prohibiting viruses would be a form of prior restraint which would inhibit the flow of information important to technical innovations.
Furthermore, I believe that the best "legislation" against viruses is a good security system and improving technological preventions. Even if fair legislation were developed, I doubt it could be enforced. Computer crimes have low priority in the justice system. However, if good security fails a virus perpetrator can still be punished under current tort laws.
