Several states appear to be considering so-called "right to compute" laws. The rhetoric around these laws attempts to draw a comparison with other rights such as the right of free speech and property rights. For example, Montana's SB212 has this to say:
Government actions that restrict the ability to privately own or make use of computational resources for lawful purposes, which infringes on citizens' fundamental rights to property and free expression, must be limited to those demonstrably necessary and narrowly tailored to fulfill a compelling government interest.
Draft legislation from The American Legislative Exchange Council which seems to form the basis for much of these laws follows a similar approach:
Section 3. Right to compute.
Government actions that restrict the ability to privately own or make use of computational resources for lawful purposes, which infringes on citizens’ fundamental rights to property and free expression, must be limited to those demonstrably necessary and narrowly tailored to fulfill a compelling government interest.
The draft legislation defines "compelling government interest" like this:
(1) "Compelling government interest" means a government interest of the highest order in protecting the public that cannot be achieved through less restrictive means. This includes but is not limited to: (a) ensuring that a critical infrastructure facility controlled by an artificial intelligence system develops a risk management policy; (b) addressing conduct that deceives or defrauds the public; (c) protecting individuals, especially minors, from harm by a person who distributes deepfakes and other harmful synthetic content with actual knowledge of the nature of that material; and (d) taking actions that prevent or abate common law nuisances created by physical datacenter infrastructure.
The idea seems to be that limiting what people can do with computational systems or resources is analogous to limiting property rights or free speech rights, and therefore should be strongly curtained, including a standard the borrows from the constitutional law concept of strict scrutiny. But does this analogy really hold?
Constitutional rights such as right to free speech are rightly revered, and one important reason for this is that they are counter-majoritarian. It isn't just popular speech that is protected, but also incredibly unpopular and even vile speech as well. A famous example of this in the first amendment context is the protection of the free speech rights of literal nazis. The right to free speech is held by individuals, including unpopular ones, and those individuals can assert that right against the government. This is one of the reasons why such rights are so highly prized. Their design and historical application show that they are important tools to restrain government and protect the rights of individuals.
The existence of such rights is so important and impressive because it involves the government accepting and enforcing limits against itself. That isn't something you see every day. We might expect that the allure and corruption of governmental power usually go the other way, so it's incredibly important that we have these rights as bulwarks against the ever-present tide of government officials trying to increase their own power.
This suggests a test that we might use to determine whether a new proposed right such as the right to compute deserves to take up this mantle of a "right" that is similar to the right to free speech. When a government entity attempts to protect a new "right", this "right" should primarily decrease the power of the entity protecting it. The right should be assertable against that entity, and it should protect things that the entity doesn't actually like or want. Does this new "right to compute", as articulated in this draft legislation, pass this test?
As far as I can tell, these right to compute laws aren't state constitutional amendments, they are just normal statutes. The laws reference state constitutional rights and claim that limitations on the use of compute conflict with these rights, but that gets the whole thing backwards. A normal state statute can't change the meaning of that state's constitution. Those state constitutional rights protect whatever they protect regardless of these right to compute laws. That is incredibly important because it seems like it would severely limit the extent to which individuals in these states could assert this right against the state legislature and its actions. If the state legislature creates a right to compute by statute, they can simply declare in their legislative findings in a subsequent law that this law is narrowly tailored to fulfill a compelling government interest. What power would a citizen of the state have to challenge such a law in court if they felt it violated their right to compute? It seems to me like they would have very little. The state legislature can simply declare at any time that their own actions are in compliance with this "right" and since it is a creation of state statute individuals wouldn't really have any recourse. The "lawful" in the text is essential circular. We're talking about a legislature, they make the laws! The right to compute, implemented in this way, seems to fail the ability to assert the right against the entity that created it.
Does the right protect things that the state legislature doesn't like? The list of what counts as a "compelling government interest" makes me doubt that this will be the case in practice. The listed items are essentially a list of things that it would be popular to regulate. Since I am part of the population, I naturally agree that lots of these popular things would likely be good to regulate. But that isn't the point. If there was something that was unpopular would these states really hold off on limiting those uses of compute because of the existence of this right to compute? I'm skeptically that they would, and I don't see how these laws create a way for individuals engaging in unpopular computation to assert this right against those who are creating it. The listed compelling government interests strike me more as a list of things that are included to ensure that unpopular uses of compute are carved and therefore aren't protected, rather than an effort to neutrally describe a standard based on the foundational values that motivate this "right". That's the exact opposite of how "rights" in the style of free speech are supposed to work.
But if these right to compute bills don't protect individuals, who do they protect? I think Ohio's HB392 gives some insights here. This bill uses a lot of the same language from the model legislation but also says this:
(B) No political subdivision or state agency shall enact, adopted, enforce, or maintain any law, rule, regulation, permit requirement, or other administrative practice that restricts or prohibits any person's lawful use, development, deployment, or possession of a computational resource unless the restriction is narrowly tailored to achieve a compelling governmental interest.
The state legislature might not be limited by a state statute, but local governments or state agencies can be. Right to compute laws are in some sense a spiritual successor to cryptocurrency "right to mine" legislation. One of the sponsors of the Ohio bill, Steve Demetriou, has this press release about the Ohio Blockchain Basics Act, which is described like this:
To ensure Ohioans can use their digital assets, the Ohio Blockchain Basics Act will prohibit local governments from charging additional taxes or fees on an individual using digital currency to pay for legal goods or services. Transactions under $200 would also be exempt from capital gains tax. Additionally, the bill incorporates protections against unreasonable, anti-digital asset zoning practices. While Ohio’s local communities are still permitted to have control over their zoning, it prevents undue discrimination against the data centers that make Bitcoin function. Mining conducted in residential areas by individuals would also be subject to local ordinances. Local governments would not be able to rezone an industrial area to prohibit digital asset mining without proper notice and comment from the public.
I think this goes to the likely practical implications of these right to compute laws. Rather than protecting the rights of individuals, the actual effect of these laws is to allow state legislatures to assert their power over other state and local entities. In this sense, these laws are more like state power wearing a "right to compute" skin suit than any actually "right" similar to something like rights of property of free speech. I think it is wrong to call these laws "right to compute" laws and to co-op the language of constitutional rights if they don't realistically protect individual rights.
Am I only saying all this because I disagree with these laws on policy? I admit I'm somewhat skeptical that these laws are good on the merits of the policy, but reasonable people can disagree. I am not a state legislator, and people have the right to implement policies even if others disagree. It would be reasonable for a supporter of these policies to ask how they could avoid this criticism while still getting the policy that those people want. I think there are two ways. These legislatures could either pass a state constitutional amendment and create a robust "right to compute" that protects individual rights, or they could pass bills similar to the existing ones but removing the language around a right to compute and instead being more clear about what these bills will actually do.
