Press Releases: September 1996
Government Argues That Law Professor Cannot Challenge Regulation
Requiring Him to Get Permission Before Teaching and Publishing
Because He Did Not Apply for That Permission
Oral Argument in Junger v. Christopher Set for Wednesday, November 20
Cleveland, Ohio, Tuesday, October 1, 1996
For Immediate Release
For More Information Contact:
Raymond Vasvari (216) 522-1925
Gino Scarselli (216) 291-8601
Or see URL: http://samsara.law.cwru.edu/comp_law/jvc/
Cleveland, Ohio, Oct. 1 -- Lawyers for Professor Peter D. Junger today
filed a brief and a motion for summary judgment in Junger v.
Christopher, the case challenging the licensing of the communication of
``cryptograhic software'' that is pending before Judge Donald C. Nugent
in the Federal District Court here.
Junger seeks an injunction against the enforcement of provisions of
the International Traffic in Arms Regulations that require him to get
the permission of the State Department's Office of Defense Trade
Controls (the "ODTC") before he can communicate information about
cryptographic software to foreign persons, ``whether in the United
States or abroad.'' The penalty for failing to get such permission
before disclosing the information can be as great as a fine of one
million dollars and imprisonment for ten years. These provisions
effectively prevent Junger from admitting foreign students to the
course that he teaches about Computers and the Law at Case Western
Reserve Law School in Cleveland, Ohio, and keep him from publishing
his course materials and articles containing cryptographic software,
or explaining what it does, how and where to get it, and how to use
The challenged licensing scheme threatens the long-run viability of
the United States software industry and, according to a blue-ribbon
panel of the National Research Council, already costs that industry at
least ``a few hundred million dollars per year ..., and all
indications are that this figure will only grow in the future.'' The
regulations have been extensively criticized by industry and bills to
repeal or limit them are now pending in Congress.
Junger's legal challenge is not based, however, on the economic damage
that the ITAR's cryptographic licensing scheme imposes on the software
industry and the nation's economy, but rather on the unconstitutional
restraints that it imposes on anyone who wants to speak or write
publically about any computer program that has, in the words of the
ITAR, the ``capability of maintaining secrecy or confidentiality of
information or information systems.'' Junger does not challenge the
constitutionality of requiring one to get a license before exporting a
physical cryptographic device: ``It isn't unconstitutional for the
Office of Defense Trade Controls to damage the computer industry and
our economy by requiring export licenses for cryptographic hardware,
but information about cryptographic software is, as the National
Research Council has pointed out, `pure knowledge that can be
transported over national borders inside the heads of people or via
letter.' Requiring the permission of the government before one can
communicate knowledge is unconstitutional. Such a prior restraint is,
in fact, the paradigmatic example of a violation of the First
THE GOVERNMENT ARGUES THAT PLAINTIFF MUST APPLY FOR PERMISSION
TO SPEAK BEFORE HE CAN CHALLENGE THE REQUIREMENT
THAT HE APPLY FOR SUCH PERMISSION
In motions and briefs submitted August 21st, the government has asked
the court to dismiss the lawsuit, or in the alternative, to grant the
government judgment prior to trial.
The government makes the initial argument that Junger lacks standing
to claim that the provisions of the ITAR requiring him to get a formal
license or other permission from the ODTC before he publically
communicates information about cryptographic software, including the
contents of the software itself, are unconstitutional. And it also
argues that that claim is neither ``ripe'' nor ``colorable'', because
Junger has not applied to the ODTC for such permission.
Junger takes the position that as a law teacher who venerates the
First Amendment it would be as improper for him to request the federal
censors for permission to speak and publish as it would be for him
openly violate the law. As he puts it: ``My duty is to challenge
these unconstitutional regulations, not to give in to them nor to
violate them in an act of civil disobedience.'' His lawyers point out
in their briefs that few propositions of constitutional law are better
established than the rule that a plaintiff does not have to submit to
an unconstitutional restraint on speech and on the press before
challenging it in court.
``Those arguments by the government are rather strange,'' says Gino
J. Scarselli, one of Junger's lawyers, ``they seem to be based on
their argument that cryptographic software is actually hardware
because it is functional.'' And then he adds, ``Of course, that
argument is also rather strange.''
THE GOVERNMENT ARGUES THAT SOME OF THE MATERIAL AT ISSUE
IS EXEMPT UNDER THE ITAR
The government also contends that some of the information at issue may
be exempt from the ITAR's licensing requirements as technical data
that is in the ``public domain'' because it is available to the public
through ``fundamental research in science and engineering'' or through
``sales at newsstands and bookstores.''
``That hardly is a defense,'' says Scarselli, ``since it is quite
clear that the government will not concede that all of the information
that Professor Junger wants to be able publish and discuss is in the
public domain. And to make matters worse, the only way that Professor
Junger can actually find out whether the government will treat
particular information as being exempt from the formal licensing
requirements is to apply to the ODTC for it calls a Commodity
Jurisdiction Determination, which in reality is just another form of
``It is not as if I am engaged in fundamental research in science and
engineering.'' Junger adds. ``What I want to publish and discuss has
to do with the political and legal issues that are raised by computer
technology, including, of course, cryptography.
``For just one example, since lawyers have a legal and ethical duty to
protect the confidences of their clients, I am convinced that lawyers
who use electronic mail or other computer technologies to communicate
with their clients, or to store information supplied by their clients,
are in some circumstances ethically, and perhaps even legally,
required to use cryptography to maintain the confidentiality of that
information. And yet I cannot publically explain to law students and
lawyers--and lawyers cannot publically explain to their clients--how
to obtain and use effective cryptographic software without first
getting the government's permission to disclose that information.
And, of course, if the cryptographic software really is effective,
then there is little or no chance that the government will permit its
THE GOVERNMENT ARGUES THAT CRYPTOGRAPHIC SOFTWARE
IS NOT PROTECTED BY THE FIRST AMENDMENT
BECAUSE IT IS FUNCTIONAL
There is no law in the United States that forbids or regulates the use
of cryptography. Yet the government argues that the information in
texts containing cryptographic software, including recipes for
creating such software, can be used in a computer to preserve secrecy
and confidentiality, and concludes that cryptographic software is
``conduct'' and ``functional'' and is thus not a text that is
constitutionally protected as speech.
Junger's lawyers, on the other hand, say that his claims do not relate
to the conduct of running a cryptographic program on a
computer--conduct that is not regulated by the ITAR, after all--and
that he only challenges the restraints that the ITAR impose on the
communication of information about how to carry on such legal conduct.
``Expressive conduct is exactly what is protected by the First
Amendment,'' says Raymond Vasvari, another of Junger's lawyers. ``And
if that expression were not functional, if it were not effective,
there would be no need to protect it. The government's argument turns
two hundred years of First Amendment jurisprudence on its head.''
``The government's arguments about software being conduct and
functional are striking examples of the sort of confusion that
pervades the whole area of Computers and the Law,'' Junger says.
``Trying to clear up such confusion is my major goal in my course in
Computers and the Law. In fact, when I started teaching that course
in 1993, I wrote some cryptographic software to assist my students in
grasping the distinction between software as a text that can be
communicated, and that is protected by copyright law and the First
Amendment, and software as a process that runs in a computer's central
processor that can be protected by patents, but not by copyrights. If
it weren't so frustrating, it would almost be funny that I cannot
publish that software because of the prior restraints imposed by the
defendants' interpretation of the ITAR, even though it is perfectly
legal for me, or for any one else, including `foreign persons,' to
actually run such software on a computer. The government's confusion
is so extensive that an agent of the ODTC has actually told me that
software, cryptographic software, is actually hardware.''
``It is quite clear to me,'' Junger adds, ``that the State Department
and the National Security Agency and other elements in the executive
branch of the government are attempting to restrain the communication
of information about cryptographic software not only abroad, but also
within the United States, because they do not want us actually to be
able to use cryptography to preserve the privacy of our thoughts and
our communications. It is as if the government required one to get a
license before explaining how to make or use an envelope, even though
it did not forbid the use of envelopes themselves. After all, all
that cryptographic software is is a way of making electronic
ORAL ARGUMENT SCHEDULED
Junger v. Christopher has been placed on a fast track by Judge Nugent.
On September 5 he established a briefing schedule: the plaintiff's
brief was due and was filed today and the government's response is due
on Friday, October 18.
Oral argument is scheduled for Wednesday, November 20.
Judge Nugent's decision is expected before the first of the year.
BACKGROUND ON THE LITIGATION
Litigation is expensive. Professor Junger and his volunteer lawyers
were only able to bring the suit because of a generous gift by an
anonymous donor of $5,000 that was used to create the ITAR Legal
Attack Fund. Additional donations by Professor Junger and others have
increased that fund to more than seven thousand dollars.
Scarselli and Vasvari are lawyers in private practice in Cleveland who
have dedicated much of their professional lives to the protection of
First Amendment freedoms. The third lawyer on the team is Kevin
O'Neill, a law professor at Cleveland State University and the former
legal director of the Ohio Chapter of the American Civil Liberties
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet: firstname.lastname@example.org email@example.com
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Counsel
John Gilmore, Founding Board Member
Cindy Cohn, McGlashan & Sarrail
San Francisco, CA -- On Friday, September 20, 1996, Judge Marilyn Hall
Patel will hold hearings in a case with far-reaching implications for
personal privacy, U.S. competitiveness, and national security. Mathematician
Daniel J. Bernstein, a Research Assistant Professor in the Department of
Mathematics, Statistics and Computer Science at the University of Illinois at
Chicago, has sued several Federal agencies on the grounds that the
agencies' requirement that he obtain a license prior to publishing his
ideas about cryptography violates his First Amendment right to freedom
Cryptography is the science of secret writing. It is the technology
to use for providing privacy or proving authenticity over distances.
All kinds of communications, from cellular phones to corporate or
government databases, depend on cryptography for protection. The
security of computers against intruders, the privacy and integrity of
the Internet, ATM machines, satellite and cable TV, and the world
financial networks all depend on cryptographic protection. In fact,
the very future of the global Internet, especially as a tool for
commerce, political organizing and scientific development of new ideas,
depends upon the availability of strong encryption.
The U.S. government has restricted cryptography since it was useful in
winning World War II. However, cellular telephones, satellites, ATM
machines, and the Internet did not exist in 1945; advances in
communication and cheap computation have made cryptography useful in
many new applications. In addition, strong encryption is already
available abroad, making laws restricting their export obsolete and
damaging the ability of U.S. businesses to compete in overseas markets.
In fact, Congress is currently considering three pieces
of legislation that would all update the export control laws and remove
encryption from its current place on the U.S. Munitions List.
While Washington toils with Pro-CODE and the other introduced bills, this
hearing will examine the various legal tests that will determine
whether the export laws and regulations (the "ITAR") are
constitutional. Professor Bernstein argues that they violate
the First Amendment in several different ways:
* Any legal framework that allows a government bureaucrat to
censor speech before it happens is an unconstitutional prior restraint.
The government is not allowed to set up such a drastic scheme
unless they can prove that publication of such information will
"surely result in direct, immediate, and irreparable damage to our
Nation or its people" and that the regulation at issue is necessary
to prevent this damage. The government must also tightly restrain
the discretion given to the bureaucrats to ensure that they don't
misuse this power. The government has not met this burden
regarding the ITAR legal framework.
* Because restrictions on speech about cryptography are based on the
content of what is being said, the court must apply a strict scrutiny test
to determine whether individuals can be punished for engaging in this
speech. This requires that the regulation be necessary to serve a
compelling state interest and that it is narrowly drawn to achieve that
end. The ITAR regulatory scheme has adopted a too- restrictive approach,
by prohibiting many forms of speech in the area of cryptography.
* The ITAR regulatory framework lacks the necessary procedural
safeguards. Grants of administrative discretion must be limited by clear
standards, and judicial review must be available. "Quite simply, the ITAR
Scheme allows its administrative agencies to make inconsistent, incorrect
and sometimes incomprehensible decisions censoring speech, all without the
protections of judicial review or oversight."
* The ITAR framework is unconstitutionally vague. The government
doesn't even seem to know what its regulations include and exclude! Here,
they told Professor Bernstein that he could not publish his academic paper
for over three years, only changing their collective mind and withdrawing
that decision after being sued. The lack of standards has allowed the
government to misuse a statute aimed at commercial, military arms sales
to limit academic and scientific publication.
* The ITAR regulatory scheme is overbroad. In an internal memo
written almost 20 years ago, the government's own Office of Legal Counsel
concluded that the ITAR's licensing standards "are not sufficiently
precise to guard against arbitrary and inconsistent administrative
action." The OLC specifically warned that the coverage was so broad it
could apply to "communication of unclassified information by a technical
lecturer at a university or to the conversation of a United States
engineer who meets with foreign friends at home to discuss matters of
theoretical interest." This is exactly what is happening here, and it is
Judge Patel will hear arguments from attorneys for Bernstein and the
government concerning their respective motions for summary judgment. The
hearing on Friday is scheduled for 12:00 noon at the United States
District Court for the Northern District of California, San Francisco
Headquarters, at 450 Golden Gate Avenue. The hearing is open to the press
and to the public.
Bernstein completed the development of an "encryption algorithm" (a recipe
or set of instructions) he calls "Snuffle." In order to contribute Snuffle
to the marketplace of scientific ideas, and to allow other scientists to
evaluate and test his ideas, Bernstein wishes to publish (a) a paper in
English describing and explaining the algorithm, (b) the "source code" for
a computer program that uses the algorithm (this source code more
precisely describes and implements the idea), and (c) instructions for how
a person could use the source code and a computer to encrypt communications.
He wishes to publish them in print journals as well as on the Internet.
Bernstein also wishes to discuss these items at mathematical conferences, in
college classrooms, on the Internet, and in other open, public meetings. In
fact, he would like to use Snuffle as part of his course material for a
cryptography class he will be teaching next spring.
The Arms Export Control Act and the International Traffic in Arms
Regulations (the ITAR regulatory scheme) required Bernstein to submit
his ideas about cryptography to the government for review, to register
as an arms dealer, and to apply for and obtain from the government a
license to publish his ideas. Failure to do so would result in severe
civil and criminal penalties. Bernstein believes this is a violation
of his First Amendment rights and has sued the government.
In the first phase of this litigation, the government argued that
since Bernstein's ideas were expressed, in part, in computer language
(source code), they were not protected by the First Amendment. On
April 15, 1996, Judge Patel rejected that argument and held for the
first time that computer source code is protected speech for purposes
of the First Amendment.
Because of its far-reaching implications, the Bernstein case is being
watched closely by privacy advocates, the computer industry, the export
and cryptography communities, and First Amendment activists. In fact,
several members of these communities provided declarations that were
submitted in support of Bernstein's motion.