[iamnothere]

State governments cannot pass laws that violate freedom of speech. Code is (written) speech, despite attempts to attack this.

If you want to push really hard, we can come up with something extremely verbose (worse than COBOL) that is VERY obviously speech. “Define a variable named x. Set the value of x to 3. Add the value of y to x.”

Outcomes take a back seat to rights. Bad outcomes are sometimes the inevitable consequence of liberty.

If you want to try and license use of public Internet infrastructure, like public roads, go ahead. But most of the Internet is private. Free association and free speech rules, regardless of the occasional difficulties it creates.

[shadowgovt]

Code is speech, but installing an OS someone else wrote on hardware you own is not code.

I think you're making a good argument for why the regulation should be at the network-connect level and not the OS-account level, though, if the real issue is that networks are a shared resource with consequences for other people (which seems to be the issue). At that point, the OS collecting the data is just a convenience to satisfy the requirement for network access, not something that needs to be mandated.

> most of the Internet is private

True, but automotive licensing still applies to one's right to operate a vehicle on turnpikes. I believe the analogy here is that you might not need a license to set up an intranet.

[iamnothere]

> True, but automotive licensing still applies to one's right to operate a vehicle on turnpikes.

I wonder if this has ever been challenged? Driving on most private roads does not require a license or even a tag.

My rough understanding is that turnpikes are a special case because they were established by legislative charter, but it would be interesting to see the specifics. I don’t know much about the legal history.

[Apocryphon]

If code is speech then isn’t the regulation of encryption as a munition unconstitutional?

[iamnothere]

Yes, see Bernstein v. United States.