Peter Junger

From: Peter Junger

I am the plaintiff in the case of Junger v. Daley in which I seek to enjoin the government from enforcing the export regulations that require one to get a license before publishing cryptographic software on the Internet or the World Wide Web or transmitting it outside the United States by electronic means. The basis of the suit is the claim that the writing and publication of software is speech that is protected by the First Amendment to the United States Constitution.

I am afraid that most people believe that the importance of Junger v. Daley turns on the fact that the encryption of electronic messages is essential if we our to retain any vestige of privacy in electronic communications, and I, of course, agree that this is an important issue. I have always taken the position, however, that the true issue in my case, and in the Bernstein case which raises similar issues, is whether the First Amendment protects the writing, publication, and communication of software in general, not just encryption software.

As you probably know, in the Bernstein case Judge Patel of the Northern District of California held that software is speech that is protected by the First Amendment and the government has appealed that decision to the Ninth Circuit Federal Court of Appeals.

On the other hand, in my case Judge Gwin of the Federal District Court of the Northern District of Ohio has recently held that software is not protected by the First Amendment because it is a ``functional device'' like a telephone circuit, saying:

The Bernstein court's assertion that ``language equals protected speech'' is unsound. ``Speech'' is not protected simply because we write it in a language. Instead, what determines whether the First Amendment protects something is whether it expresses ideas....

``Fighting words'' are written or spoken in a language. While spoken or written in language, they are excluded from First Amendment protection. See, e.g., Sandul v. Larion, 119 F.3d 1250,1255 (6th Cir.), cert. dismissed, 118 S. Ct. 439 (1997) (observing that words ``which by their very utterance inflict injury or tend to incite an immediate breach of the peace'' are not protected because they ``are no essential part of any exposition of ideas ....'') (quoting Chaplinsky, 315 U.S. at 572. Similarly, commercial advertisements are written in a language, but are afforded a lesser level of protection under the First Amendment. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 566 (1980) (acknowledging that the government may ban forms of communication more likely to deceive the public than to inform). Furthermore, the court in Bernstein I misunderstood the significance of source code's functionality. Source code is ``purely functional,'' ... in a way that the Bernstein Court's examples of instructions, manuals, and recipes are not. Unlike instructions, a manual, or a recipe, source code actually performs the function it describes. While a recipe provides instructions to a cook, source code is a device, like embedded circuitry in a telephone, that actually does the function of encryption.

While finding that encryption source code is rarely expressive, in limited circumstances it may communicate ideas. Although it is all but unintelligible to most people, trained computer programmers can read and write in source code. Moreover, people such as Plaintiff Junger can reveal source code to exchange information and ideas about cryptography.

Therefore, the Court finds that exporting source code is conduct that can occasionally have communicative elements. Nevertheless, merely because conduct is occasionally expressive, does not necessarily extend First Amendment protection to it. As the Supreme Court has observed, ``[i]t is possible to find some kernel of expression in almost every activity--for example, walking down the street or meeting one's friends at the shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.'' City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

Now you know, and I know, that Judge Gwin was wrong in his conclusion. I am, however, more and more convinced that most people, and most legislators and most judges, would tend to agree with Judge Gwin, and with the government, which argued in my case that:

The linchpin of plaintiff's First Amendment argument is that ``software is speech.'' This notion ... has unknown and potentially harmful implications. If it were necessary to decide the matter, the more prudent judicial finding would be that encryption software, whatever its informational value, is properly treated as a functional item. The common sense understanding of software -- as recognized by courts -- is as a set of instructions to a computer microprocessor that enables a computer to function a certain way. The common use of software is to perform tasks on a computer, ranging from word-processing, electronic mail, exploring the Internet, playing games, or encrypting data.

Much software, however, is designed to cause substantial harm. Software exists to spread and install ``viruses'' that can destroy computer hard-drives or the files they contain. Software also exists to ``hack'' into secure computer systems, such as banking and telephone systems. Such software can be used to invade privacy, commit fraud, and substantially disrupt or even endanger people's lives -- not because it contains a harmful ``idea'' but because it can do harmful things. Those who transmit such software cannot validly claim they were merely distributing an ``idea'' or ``speech'' when that ``speech'' destroyed a computer hard-drive, shut down a phone system, or hacked into a bank account.

It doesn't take much imagination to realize what a threat this view is to the Open Software movement, which, as Eric Raymond has pointed out is dependent on the free exchange of ideas, usually in the form of freely available source code for computer programs, over the Internet. It is already the case that programmers in the United States may not take part in the development of open cryptographic software, since they may not distribute their versions of the code over the Internet; consider the case of GNU Privacy Guard, for example. And over the past year, Congress has given serious consideration to laws that would make it a crime to ``manufacture'' encryption software without a back door permitting government access to encrypted data or to ``manufacture'' software that could be used in commiting copyright violations, where, of course, ``manufacture'' means simply ``write''.

I have created an electronic discussion list called SoftSpeech to discuss the issues raised by Judge Gwin's decision, and I would like to invite you to subscribe and join in our discussions. Information about the discussion list, including how to subscribe, is available at the SoftSpeech web site: .

I also hope that you will encourage others in the Open Software movement to join in our discussions and, more importantly, to express their concern about the need for constitutional protection for the writings of programmers just as for other writings. There is an important educational and public relations job to be done here. Finally, we will be filing a notice of appeal shortly in my case, and my lawyers assure me that it would be most helpful if some of the organizations that support the Open Software movement, like The Linux Journal and RedHat, to give just two examples, would be willing to submit an amicus brief supporting the claim to First Amendment protection for software. There were several amicus briefs filed in the Bernstein case, and we expect that the same amici will file briefs in support of our position in my appeal. But none of these briefs discussed the issue from the point of view of the Open Software movement. I would welcome your suggestions as to organizations and individuals who might be willing to join in signing such an amicus brief. Everyone here knows, of course, about Open Software and how important it is, and is going to be, for the healthy development of the Internet and the Web and the entire world economy in this Information Age. Most judges on the other hand will not have heard about it yet. The purpose of amicus briefs---an ``amicus'' is a ``friend of the court''---is to inform the court of issues---like the importance of free speech for programmers to the development of Open Software---in which the ``friend'' has special interest and expertise.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH E-mail: junger@samsara.law.cwru.edu, URL: http://samsara.law.cwru.edu