Let’s return to the virus hypothetical.192 The main concern lies in the fact that the software may be “diverted” toward unlawful purposes, regardless of the speaker’s intent. This concern is, however, not unique to software. It also applies to other types of information usable for mischief or harassment, whether highly technical like information about nuclear weapons, or utterly mundane like a person’s name, address or telephone number.
Even if the virus author merely posts the source code and fails to release it in active form, the issue remains whether the posting was done with an intent to communicate. If the author claims that she intended it to communicate, we would need to examine the context to decide the plausibility of that claim. There will often be a plausible claim. There is no question that people study viruses and other dangerous software in order to prevent or relieve harm.193 One way to control a virus is to publish its source code so that systems operators can disable or protect against it. Communicating a virus’ source code as part of such an effort qualifies as a speech act because the publisher intends to communicate how the virus works in a conventional way. In fact, one could imagine entire journals or Internet sites devoted to viruses and other dangerous software.194 When such publications aim to alert the world to these dangers, their intent is clearly communicative.
sent from eddan.com