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Plaintiff Seeks Summary Judgment in Cleveland Case Challenging Licensing of "Exports" of Cryptographic Information

PRESS RELEASE
September 30, 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
it.

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
Amendment.''

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
license.''

``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
disclosure.''

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
envelopes.''

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
Union.

--30--

- --
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu
URL: http://samsara.law.cwru.edu

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