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<title>Peter Junger</title>
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From: Peter Junger
<p>
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.
<p>
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.
<p>
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.
<p>
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:
<p>
<font="maroon">
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....
<p>
``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.
<p>
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.
<p>
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).
</font>
<p>
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:
<p>
<font="maroon">
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.
<p>
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.
</font>
<p>
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''.
<p>
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: <http://samsara.law.cwru.edu/~sftspch/>.
<p>
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.
<p>
<font="navy">
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
E-mail: <a
href="mailto:junger@samsara.law.cwru.edu">junger@samsara.law.cwru.edu</a>,
URL: <a href="http://samsara.law.cwru.edu">http://samsara.law.cwru.edu</a>
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