Junger v. Daley, PLAINTIFF-APPELLAN

• Citation: 209 F.3d 481
• Decision Date: 17 December 1999
• Docket Number: PLAINTIFF-APPELLAN,DEFENDANTS-APPELLEES,No. 98-4045,V,98-4045
• Parties: (6th Cir. 2000) PETER D. JUNGER,WILLIAM DALEY, UNITED STATES SECRETARY OF COMMERCE, ET AL., Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 481

209 F.3d 481 (6th Cir. 2000)

PETER D. JUNGER, PLAINTIFF-APPELLANT,

V.

WILLIAM DALEY, UNITED STATES SECRETARY OF COMMERCE, ET AL., DEFENDANTS-APPELLEES

No. 98-4045

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 17, 1999

Decided and Filed: April 4, 2000

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 96-01723--James S. Gwin, District Judge.

Gino J. Scarselli (argued and briefed), Raymond Vasvari (briefed), ACLU of Ohio Foundation, Cleveland, Ohio, Kevin F. O'Neill (briefed), Cleveland-Marshall College of Law, Cleveland, Ohio, for Appellant.

Scott R. McIntosh (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for Appellees.

David W. Addis (briefed), Kurt A. Wimmer (briefed), Covington & Burling, Washington, D.C., Robert M. O'Neil (briefed), J. Joshua Wheeler (briefed), Thomas Jefferson Center For The Protection OF Free Expression, Charlottesville, Virginia, Paul F. Gamble (briefed), Bloomfield Hills, Michigan, for Amici Curiae.

Before: Martin, Chief Judge; Clay, Circuit Judge; Weber, District Judge.^*

OPINION

Boyce F. Martin, Jr., Chief Judge

This is a constitutional challenge to the provisions of the Export Administration Regulations, 15 C.F.R. Parts 730-74, that regulate the export of encryption software. Peter D. Junger appeals the district court's grant of summary judgment in favor of Secretary Daley and the other defendants.

The district court found that encryption source code is not sufficiently expressive to be protected by the First Amendment, that the Export Administration Regulations are permissible content-neutral restrictions, and that the Regulations are not subject to a facial challenge as a prior restraint on speech. Subsequent to the district court's holding and the oral arguments before this Court, the Bureau of Export Administration issued an interim final rule amending the regulations at issue. See Revisions to Encryption Items, 65 Fed. Reg. 2492 (2000) (to be codified at 15 C.F.R. Parts 734, 740, 742, 770, 772, 774). Having concluded that the First Amendment protects computer source code, we reverse the district court and remand this case for further consideration of Junger's constitutional claims in light of the amended regulations.

ENCRYPTION AND SOFTWARE BACKGROUND

Encryption is the process of converting a message from its original form ("plaintext") into a scrambled form ("ciphertext"). Most encryption today uses an algorithm, a mathematical transformation from plaintext to ciphertext, and a key that acts as a password. Generally, the security of the message depends on the strength of both the algorithm and the key.

Encryption has long been a tool in the conduct of military and foreign affairs. Encryption has many civil applications, including protecting communication and data sent over the Internet. As technology has progressed, the methods of encryption have changed from purely mechanical processes, such as the Enigma machines of Nazi Germany, to modern electronic processes. Today, messages can be encrypted through dedicated electronic hardware and also through general-purpose computers with the aid of encryption software.

For a general-purpose computer to encrypt data, it must use encryption software that instructs the computer's circuitry to execute the encoding process. Encryption software, like all computer software, can be in one of two forms: object code or source code. Object code represents computer instructions as a sequence of binary digits (0s and 1s) that can be directly executed by a computer's microprocessor. Source code represents the same instructions in a specialized programming language, such as BASIC, C, or Java. Individuals familiar with a particular computer programming language can read and understand source code. Source code, however, must be converted into object code before a computer will execute the software's instructions. This conversion is conducted by compiler software. Although compiler software is typically readily available, some source code may have no compatible compiler.

REGULATORY BACKGROUND

The Export Administration Regulations create a comprehensive licensing scheme to control the export of nonmilitary technology, software, and commodities. In 1996, the President transferred export jurisdiction over nonmilitary encryption items from the State Department to the Commerce Department's Bureau of Export Administration.

The Regulations are structured around the Commodity Control List, which lists items subject to export control. See 15 C.F.R. Part 774. Each item on the List is given an Export Control Classification Number that designates the category of the controlled item and the reasons why the government controls the item's export. See 15 C.F.R. § 738.2. The reasons for control affect the nature and scope of the export controls.

Encryption software, including both source code and object code, is regulated under Export Control Classification Number 5D002 for national security reasons. See id. § 772 Supp. 1. In addition, encryption technology and encryption hardware are regulated for national security reasons under different Classification Numbers. Generally, the Regulations require a license for the export of all encryption items to all foreign destinations, except Canada. See 65 Fed. Reg 2492, 2499 (to be codified at 15 C.F.R. § 742.15(a)). Although the regulations provide some exceptions, most encryption software in electronic form remains subject to the license requirements for export. Encryption software in printed form, however, is not subject to the Regulations. See 15 C.F.R. § 734.3(b)(2).

The Regulations define "export" as the "actual shipment or transmission of items subject to the EAR out of the United States." Id. § 734.2(b)(1). For encryption software, the definition of "export" also includes publication of the software on the Internet, unless steps are taken to restrict foreign access to the Internet site. See 65 Fed. Reg. 2492, 2496 (to be codified at 15 C.F.R. § 734.2(b)(9)(ii)).

FACTUAL BACKGROUND

Peter Junger is a professor at the Case Western University School of Law. Junger maintains sites on the World Wide Web that include information about courses that he teaches, including a computers and the law course. Junger wishes to post on his web site encryption source code that he has written to demonstrate how computers work. Such a posting is defined as an export under the Regulations.

On June 12, 1997, Junger submitted three applications to the Commerce Department, requesting determinations of commodity classifications for encryption software programs and other items. On July 4, the Export Administration told Junger that Classification Number 5D002 covered four of the five software programs he had submitted. Although it found that four programs were subject to the Regulations, the Export Administration found that the first chapter of Junger's textbook, Computers and the Law, was an allowable unlicensed export. Though deciding that the printed book chapter containing encryption code could be exported, the Export Administration stated that export of the book in electronic form would require a license if the text contained 5D002 software. Since receiving the classification determination, Junger has not applied for a license to export his classified encryption source code.

Junger filed this action to make a facial...