Remember all the ruckus with various US states introducing operating-system level age verification laws? Colorado and California thankfully exempt open source.
Saw a comment on an article about this specifically.
"All the “age verification” bill are unconstitutional 1st Amendment violations and can be struck down in court.
Code is expressive conduct under Bernstein v. DOJ and Junger v. Daley.
Compelled creation of expressive content is still compelled speech (Wooley, Hurley, Janus).
Age verification mandates require developers to author, maintain, and deploy expressive logic they would not otherwise create.
The state cannot force a private actor to speak, design, or encode a message or system that expresses the state’s preferred policy. "
So it seems, if this is sound, that an open-sourced software, being from a private entity, cannot be compelled to implement something like this without infringing on free speech. Maybe they go after the first amendment, but that’s an entirely other legal struggle than this looked initially and would be significantly harder to do.
I don’t know what their arguments would be, but even if it were, that seems akin to saying it’s legal to say but it’s illegal to hear. It depends pretty much entirely on what the courts think of an argument like that.
The difference there is that the basis for restrictions comes from already established precedent surrounding regulation of firearms. It would be illegal for the layperson to build, but not necessarily someone licensed to do so.
In this case, there is no precedent for requiring an ID to use computer hardware. The basis (as far as I understand it, but I’m not a lawyer) being used to force these ID laws is that these OSs (Google, Apple, and Microsoft) are actually a commercial service which knowingly deals with children, and there are established laws about how companies are allowed to enter into service with children and obligations/regulations that require a good faith attempt to determine what sort of customer they are dealing with.
In the case of FOSS, though, there is no associated company and no contract of service, and no reasonable way for a developer or maintainer to know who is using their service. It’s much closer to someone giving away a book than it is to basically anything else, and there are decades of precedent backing this up, which makes it a much easier thing to challenge in court.
Saw a comment on an article about this specifically.
"All the “age verification” bill are unconstitutional 1st Amendment violations and can be struck down in court.
Code is expressive conduct under Bernstein v. DOJ and Junger v. Daley.
Compelled creation of expressive content is still compelled speech (Wooley, Hurley, Janus).
Age verification mandates require developers to author, maintain, and deploy expressive logic they would not otherwise create.
The state cannot force a private actor to speak, design, or encode a message or system that expresses the state’s preferred policy. "
So it seems, if this is sound, that an open-sourced software, being from a private entity, cannot be compelled to implement something like this without infringing on free speech. Maybe they go after the first amendment, but that’s an entirely other legal struggle than this looked initially and would be significantly harder to do.
Wouldn’t the argument be that they aren’t compelling speech, but preventing the execution of non-compliant code?
Sure, devs could publish software without age verification, but running it would be illegal.
IIRC not with the current phrasing of the bills.
I don’t know what their arguments would be, but even if it were, that seems akin to saying it’s legal to say but it’s illegal to hear. It depends pretty much entirely on what the courts think of an argument like that.
More like saying it’s legal to publish the plans for a gun, but illegal for the layperson to build maybe?
The difference there is that the basis for restrictions comes from already established precedent surrounding regulation of firearms. It would be illegal for the layperson to build, but not necessarily someone licensed to do so.
In this case, there is no precedent for requiring an ID to use computer hardware. The basis (as far as I understand it, but I’m not a lawyer) being used to force these ID laws is that these OSs (Google, Apple, and Microsoft) are actually a commercial service which knowingly deals with children, and there are established laws about how companies are allowed to enter into service with children and obligations/regulations that require a good faith attempt to determine what sort of customer they are dealing with.
In the case of FOSS, though, there is no associated company and no contract of service, and no reasonable way for a developer or maintainer to know who is using their service. It’s much closer to someone giving away a book than it is to basically anything else, and there are decades of precedent backing this up, which makes it a much easier thing to challenge in court.
I was unaware of this, though it is very good to hear. I’ll need to look more into those rulings.