Junger v. Daley

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 8 Junger v. Daley, et al. No. 98-4045 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0117P (6th Cir.) File Name: 00a0117p.06 Before any level of judicial scrutiny can be applied to the Regulations, Junger must be in a position to bring a facial challenge to these regulations. In light of the recent amendments to the Export Administration Regulations, the UNITED STATES COURT OF APPEALS district court should examine the new regulations to FOR THE SIXTH CIRCUIT determine if Junger can bring a facial challenge. _________________ For the foregoing reasons, we REVERSE the district court

; and REMAND the case to the district court for consideration

 of Junger’s constitutional challenge to the amended PETER D. JUNGER,  regulations. Plaintiff-Appellant,   No. 98-4045 v.  > WILLIAM DALEY, United    States Secretary of

Defendants-Appellees.  Commerce, et al.,  1 Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 96-01723—James S. Gwin, District Judge. Argued: December 17, 1999 Decided and Filed: April 4, 2000 Before: MARTIN, Chief Judge; CLAY, Circuit Judge; WEBER, District Judge.*

* The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 Junger v. Daley, et al. No. 98-4045 No. 98-4045 Junger v. Daley, et al. 7

_________________ The Supreme Court has expressed the versatile scope of the First Amendment by labeling as “unquestionably shielded” COUNSEL the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. ARGUED: Gino J. Scarselli, ACLU OF OHIO Hurly v. Irish-American Gay, Lesbian and Bisexual Group, FOUNDATION, Cleveland, Ohio, for Appellant. Scott R. 515 U.S. 557, 569 (1995). Though unquestionably McIntosh, U.S. DEPARTMENT OF JUSTICE, CIVIL expressive, these things identified by the Court are not DIVISION, APPELLATE STAFF, Washington, D.C., for traditional speech. Particularly, a musical score cannot be Appellees. ON BRIEF: Gino J. Scarselli, Raymond Vasvari, read by the majority of the public but can be used as a means ACLU OF OHIO FOUNDATION, Cleveland, Ohio, Kevin F. of communication among musicians. Likewise, computer O’Neill, CLEVELAND-MARSHALL COLLEGE OF LAW, source code, though unintelligible to many, is the preferred Cleveland, Ohio, for Appellant. Scott R. McIntosh, U.S. method of communication among computer programers. DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Appellees. Because computer source code is an expressive means for David W. Addis, Kurt A. Wimmer, COVINGTON & the exchange of information and ideas about computer BURLING, Washington, D.C., Robert M. O’Neil, J. Joshua programming, we hold that it is protected by the First Wheeler, THOMAS JEFFERSON CENTER FOR THE Amendment. PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia, Paul F. Gamble, Bloomfield Hills, Michigan, for The functional capabilities of source code, and particularly Amici Curiae. those of encryption source code, should be considered when analyzing the governmental interest in regulating the _________________ exchange of this form of speech. Under intermediate scrutiny, the regulation of speech is valid, in part, if “it OPINION furthers an important or substantial governmental interest.” _________________ O’Brien, 391 U.S. at 377. In Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994), the Supreme Court noted that BOYCE F. MARTIN, JR., Chief Judge. This is a although an asserted governmental interest may be important, constitutional challenge to the provisions of the Export when the government defends restrictions on speech “it must Administration Regulations, 15 C.F.R. Parts 730-74, that do more than simply ‘posit the existence of the disease sought regulate the export of encryption software. Peter D. Junger to be cured.’” Id. (quoting Quincy Cable TV, Inc. v. FCC, appeals the district court’s grant of summary judgment in 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government favor of Secretary Daley and the other defendants. “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these The district court found that encryption source code is not harms in a direct and material way.” Id. We recognize that sufficiently expressive to be protected by the First national security interests can outweigh the interests of Amendment, that the Export Administration Regulations are protected speech and require the regulation of speech. In the permissible content-neutral restrictions, and that the present case, the record does not resolve whether the exercise Regulations are not subject to a facial challenge as a prior of presidential power in furtherance of national security restraint on speech. Subsequent to the district court’s holding interests should overrule the interests in allowing the free and the oral arguments before this Court, the Bureau of exchange of encryption source code. Export Administration issued an interim final rule amending 6 Junger v. Daley, et al. No. 98-4045 No. 98-4045 Junger v. Daley, et al. 3

and that the Regulations are not subject to facial challenge on the regulations at issue. See Revisions to Encryption Items, prior restraint grounds. 65 Fed. Reg. 2492 (2000) (to be codified at 15 C.F.R. Parts 734, 740, 742, 770, 772, 774). Having concluded that the We review the grant of summary judgment de novo. See First Amendment protects computer source code, we reverse Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. the district court and remand this case for further 1999). consideration of Junger’s constitutional claims in light of the amended regulations. The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code ENCRYPTION AND SOFTWARE BACKGROUND has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use Encryption is the process of converting a message from its encryption source code to represent and convey information original form (“plaintext”) into a scrambled form and ideas about cryptography and that encryption source code (“ciphertext”). Most encryption today uses an algorithm, a can be used by programmers and scholars for such mathematical transformation from plaintext to ciphertext, and informational purposes. Much like a mathematical or a key that acts as a password. Generally, the security of the scientific formula, one can describe the function and design message depends on the strength of both the algorithm and of encryption software by a prose explanation; however, for the key. individuals fluent in a computer programming language, source code is the most efficient and precise means by which Encryption has long been a tool in the conduct of military to communicate ideas about cryptography. and foreign affairs. Encryption has many civil applications, including protecting communication and data sent over the The district court concluded that the functional Internet. As technology has progressed, the methods of characteristics of source code overshadow its simultaneously encryption have changed from purely mechanical processes, expressive nature. The fact that a medium of expression has such as the Enigma machines of Nazi Germany, to modern a functional capacity should not preclude constitutional electronic processes. Today, messages can be encrypted protection. Rather, the appropriate consideration of the through dedicated electronic hardware and also through medium’s functional capacity is in the analysis of permitted general-purpose computers with the aid of encryption government regulation. software. The Supreme Court has explained that “all ideas having For a general-purpose computer to encrypt data, it must use even the slightest redeeming social importance,” including encryption software that instructs the computer’s circuitry to those concerning “the advancement of truth, science, execute the encoding process. Encryption software, like all morality, and arts” have the full protection of the First computer software, can be in one of two forms: object code or Amendment. Roth v. United States, 354 U.S. 476, 484 (1957) source code. Object code represents computer instructions as (quoting 1 JOURNALS OF THE CONTINENTAL CONGRESS 108 a sequence of binary digits (0s and 1s) that can be directly (1774)). This protection is not reserved for purely expressive executed by a computer’s microprocessor. Source code communication. The Supreme Court has recognized First represents the same instructions in a specialized programming Amendment protection for symbolic conduct, such as draft- language, such as BASIC, C, or Java. Individuals familiar card burning, that has both functional and expressive features. with a particular computer programming language can read See United States v. O’Brien, 391 U.S. 367 (1968). and understand source code. Source code, however, must be converted into object code before a computer will execute the 4 Junger v. Daley, et al. No. 98-4045 No. 98-4045 Junger v. Daley, et al. 5

software’s instructions. This conversion is conducted by definition of “export” also includes publication of the compiler software. Although compiler software is typically software on the Internet, unless steps are taken to restrict readily available, some source code may have no compatible foreign access to the Internet site. See 65 Fed. Reg. 2492, compiler. 2496 (to be codified at 15 C.F.R. § 734.2(b)(9)(ii)). REGULATORY BACKGROUND FACTUAL BACKGROUND The Export Administration Regulations create a Peter Junger is a professor at the Case Western University comprehensive licensing scheme to control the export of School of Law. Junger maintains sites on the World Wide nonmilitary technology, software, and commodities. In 1996, Web that include information about courses that he teaches, the President transferred export jurisdiction over nonmilitary including a computers and the law course. Junger wishes to encryption items from the State Department to the Commerce post on his web site encryption source code that he has Department’s Bureau of Export Administration. written to demonstrate how computers work. Such a posting is defined as an export under the Regulations. The Regulations are structured around the Commodity Control List, which lists items subject to export control. See On June 12, 1997, Junger submitted three applications to 15 C.F.R. Part 774. Each item on the List is given an Export the Commerce Department, requesting determinations of Control Classification Number that designates the category of commodity classifications for encryption software programs the controlled item and the reasons why the government and other items. On July 4, the Export Administration told controls the item’s export. See 15 C.F.R. § 738.2. The Junger that Classification Number 5D002 covered four of the reasons for control affect the nature and scope of the export five software programs he had submitted. Although it found controls. that four programs were subject to the Regulations, the Export Administration found that the first chapter of Junger’s Encryption software, including both source code and object textbook, Computers and the Law, was an allowable code, is regulated under Export Control Classification unlicensed export. Though deciding that the printed book Number 5D002 for national security reasons. See id. § 772 chapter containing encryption code could be exported, the Supp. 1. In addition, encryption technology and encryption Export Administration stated that export of the book in hardware are regulated for national security reasons under electronic form would require a license if the text contained different Classification Numbers. Generally, the Regulations 5D002 software. Since receiving the classification require a license for the export of all encryption items to all determination, Junger has not applied for a license to export foreign destinations, except Canada. See 65 Fed. Reg 2492, his classified encryption source code. 2499 (to be codified at 15 C.F.R. § 742.15(a)). Although the regulations provide some exceptions, most encryption Junger filed this action to make a facial challenge to the software in electronic form remains subject to the license Regulations on First Amendment grounds, seeking requirements for export. Encryption software in printed form, declaratory and injunctive relief that would permit him to however, is not subject to the Regulations. See 15 C.F.R. engage in the unrestricted distribution of encryption software § 734.3(b)(2). through his web site. Junger claims that encryption source code is protected speech. The district court granted summary The Regulations define “export” as the “actual shipment or judgment in favor of the defendants, holding that encryption transmission of items subject to the EAR out of the United source code is not protected under the First Amendment, that States.” Id. § 734.2(b)(1). For encryption software, the the Regulations are permissible content-neutral regulations,