So at one level it's kind of a standard constitutional analysis. And then there is a kind of counterpoint that I make about the open source movement. One way it becomes more regulable is through the layering on identity of the architecture. Another way in which it can become regulable is if government actually intervenes to regulate the code. Government's ability to regulate code weakens if code is open source code, because with open source code it's easier for people to opt out of the government regulation by pulling out the government module and plugging in another kind of module.
Open source becomes a check on government's power to monopolistic code.
In closed code, it's much easier for government to regulate. Right now, for example, the government is attempting to get telephone companies to change their code so that it's easier to wiretap telephones. Inc. All rights reserved.