Junger v. Daley, 1:96-CV-1723.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Citation8 F.Supp.2d 708
Docket NumberNo. 1:96-CV-1723.,1:96-CV-1723.
PartiesPeter JUNGER, Plaintiff, v. William M. DALEY, United States Secretary of Commerce, et al., Defendants.
Decision Date02 July 1998

Kevin F. O'Neill, Cleveland-Marshall College Of Law, Cleveland, OH, Gino J. Scarselli, Richmond Heights, Raymond V. Vasvari, Law Offices Of Raymond V. Vasvari, Cleveland, OH, for Plaintiff.

Anthony J. Coppolino, Department of Justice, Washington, DC, for Defendants.


GWIN, District Judge.

In October and November 1997, Plaintiff Peter Junger ("Junger") and Defendants United States Secretary of Commerce, et al. ("the government") filed cross-motions for summary judgment in this First Amendment case [Doc. 58, 62].1 In his motion for judgment, Plaintiff Junger seeks injunctive and declaratory relief from the government's enforcement of export controls on encryption software. In support of his motion for injunctive relief, Junger claims the Export Administration Regulations ("Export Regulations"), 15 C.F.R. pt. 730 et seq., violate rights protected by the First Amendment.

The government denies that the Export Regulations implicate First Amendment rights. The government says its licensing requirement seeks only to restrict the distribution of encryption software itself, not ideas on encryption. Stated otherwise, the government says it seeks to control only the engine for encrypting data. The government says it controls the distribution of sophisticated encryption software for valid national security purposes.

For the reasons that follow, the Court denies Plaintiff Junger's motion for summary judgment, and grants the government's motion for summary judgment.

I. Background
A. Description of claims made

Plaintiff Junger claims the Export Regulations violate rights protected by the First Amendment. In Count One of his five-count complaint, Plaintiff Junger says licensing requirements for exporting encryption software work a prior restraint, violating the First Amendment's free speech clause. In Count Two, Junger argues that the Export Regulations are unconstitutionally overbroad and vague. In Count Three, he argues that the Export Regulations engage in unconstitutional content discrimination by subjecting certain types of encryption software to more stringent export regulations than other items. In Count Four, Junger claims that the Export Regulations restrict his ability to exchange software, by that infringing his First Amendment rights to academic freedom and freedom of association. In Count Five, Junger alleges that executive regulation of encryption software under the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., is a violation of the separation of powers doctrine.

In addressing these claims, the Court decides whether encryption source code is sufficiently expressive to merit heightened First Amendment protection. The Court then examines whether the Export Regulations are a prior restraint on speech subject to greater First Amendment scrutiny. If the regulatory scheme does not warrant increased scrutiny, the Court decides if the scheme survives intermediate scrutiny.

The Court finds that the Export Regulations are constitutional because encryption source code is inherently functional, because the Export Regulations are not directed at source code's expressive elements, and because the Export Regulations do not reach academic discussions of software, or software in print form. For these reasons, the Court grants the government's motion for summary judgment and denies Junger's motion for summary judgment.

B. Cryptography

Once almost the exclusive province of military and governmental bodies, cryptography is now increasingly available to businesses and private individuals wishing to keep their communications confidential. See Bernstein v. United States Dep't of State, 974 F.Supp. 1288, 1292 (N.D.Cal.1997) ("Bernstein III"). To keep their communications confidential, users encrypt and decrypt2 communications, records and other data. Through encryption, users seek to prevent the unauthorized interception, viewing, tampering, and forging of such data. Without encryption, information sent by a computer is unsecured. Without encryption those other than the intended recipient may view sensitive information.

Encryption has been used for decades although the methods of encryption have changed. Until the end of World War II, mechanical devices commonly did encryption, such as Nazi Germany's Enigma machines. Today, computers and electronic devices have largely replaced mechanical encryption. In using electronic devices, encryption can be done with dedicated hardware (such as a telephone scrambler's electronic circuitry) or with computer software. Encryption software carries out a cryptographic "algorithm," which is a set of instructions that directs computer hardware to encrypt plaintext into an encoded ciphertext. Mathematical functions or equations usually make up the instructions.

Like all software, encryption programs can take two general forms: object code and source code. Source code is a series of instructions to a computer in programming languages such as BASIC, PERL, or FORTRAN. Object code is the same set of instructions translated into binary digits (1's and O's). Thus, source code and object code are essentially interchangeable. While source code is not directly executable by a computer, the computer can easily convert it into executable object code with "compiler" or "interpreter" software.3

C. Regulatory background

On November 15, 1996, President Clinton issued Executive Order 13026. With that order, he transferred jurisdiction over export controls on nonmilitary encryption products and related technology from the State Department to the Commerce Department.4 The order specified that encryption products formerly designated as defense articles on the United States Munitions List after that would be subjected to Commerce Department regulations (the "Export Regulations"). In his order, the President found that "the export of encryption software, like the export of other encryption products described in this section, must be controlled because of such software's functional capacity, rather than because of any possible informational value of such software...." Exec. Order No. 13026, 1996 WL 666563. The Export Regulations remain in effect.5

The Export Regulations control the "export" of certain software. The Export Regulations define "export" of controlled encryption source code and object code software as "downloading, or causing the downloading of, such software to locations ... outside the United States ... unless the person making the software available takes precautions adequate to prevent unauthorized transfer of such code outside the United States." 15 C.F.R. § 734.2(b)(9).

The Export Regulations forbid the transfer of certain encryption software outside the United States. Unless very difficult precautions are taken, posting software on the Internet is an export. See 15 C.F.R. § 734.2(b)(9)(ii)(B). However, it is nearly impossible for most Internet users to carry out or verify the precautions.6 Because of the difficulty of the precautions, almost any posting of software on the Internet is an export.

The Export Regulations set up procedures to obtain approval for exporting items on the Control List. To export any item listed on the Commerce Control List, one must first submit a commodity classification request to the Bureau of Export Administration. See 15 C.F.R. Pts. 740-44. All items on the Commerce Control List are given an Export Control Classification Number, and Bureau of Export Administration regulations specify three categories of controlled Encryption Items.

Export Classification Number 5A002 covers encryption commodities (such as circuitry and hardware products), Export Classification Number 5D002 covers encryption software,7 and Export Classification Number 5E002 covers encryption technology. See 15 C.F.R. § 774 supp. I. Although the Export Administration Act defines "technology" to include software, 50 U.S.C.App. § 2415(4), Bureau of Export Administration regulations treat encryption software the same as encryption commodities. 15 C.F.R. Part 774, Note following 5D002.

For software falling under Export Classification Numbers 5A002, 5D002 and 5E002, the Export Regulations requires licenses for export to all destinations except Canada. See 15 C.F.R. § 742.15(a). As later described, Plaintiff Junger's application involves software classified under Classification Number 5D002. As to this classification number, licensing is required except for encryption source code in a book or other printed material, 15 C.F.R. § 734.3, Notes to Paragraphs (b)(2) and (b)(3). Encryption source code in printed form is not subject to the Export Regulations and, thus, is outside the scope of the licensing requirement.

D. Junger's commodity classification requests

Plaintiff Junger is a law professor. He teaches a course titled "Computers and the Law" at Case Western Reserve University Law School in Cleveland, Ohio. Junger maintains sites on the World Wide Web that include information about courses that he teaches, including a computers and law course. His web sites also set out documents involved with this litigation.8 Plaintiff Junger uses his web site to describe the process of this litigation through press releases and filed materials.9 Besides descriptions of this lawsuit, the web site has information from Junger's courses and other topics of interest to him.

Plaintiff Junger wishes to post to his web site various encryption programs that he has written to show how computers work. Such a posting is an export under the Export Regulations. See 15 C.F.R. § 734.2(b)(9).

On June 12, 1997, Plaintiff Junger submitted three applications to the Commerce Department requesting determination of commodity...

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2 cases
  • Universal City Studios, Inc. v. Reimerdes
    • United States
    • U.S. District Court — Southern District of New York
    • February 2, 2000
    ...with respect to object code), rehearing in banc granted, opinion withdrawn, 192 F.3d 1308 (9th Cir.1999); with Junger v. Daley, 8 F.Supp.2d 708, 715-18 (N.D.Ohio 1998) (holding that encryption software in source code form is functional rather than expressive and therefore not protected spee......
  • Bernstein v. U.S. Dept. of Justice
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 6, 1999
    ...District of Ohio also explored the function versus expression conundrum of encryption source code at some length in Junger v. Daley, 8 F.Supp.2d 708 (N.D.Ohio 1998). Junger, like Bernstein, is a professor, albeit a law professor, who wished to publish in various forms his work on computers,......
1 books & journal articles
  • The medium is the mistake: the law of software for the First Amendment.
    • United States
    • Stanford Law Review Vol. 51 No. 2, January 1999
    • January 1, 1999
    ...The Barnes case would be equally difficult from a threshold perspective in either ontological approach. (93.) See Junger v. Daley, 8 F. Supp. 2d 708 (N.D. Ohio 1998); Karn v. United States Dep't of State, 925 F. Supp. 1 (D.D.C. 1996); Bernstein v. United States Dep't of State, 922 F. Supp. ......

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