Encryption Export Controls Held Constitutional By One Judge

(July 7, 1998)  Encryption proponents lost a legal battle on July 2 when U.S. District Court Judge Gwin ruled in the case, Junger v. Daley, that current encryption export controls are not unconstitutional.  Last year another federal trial court judge held such rules are unconstitutional.

Peter Junger is a professor at Case Western Reserve University Law School who brought suit against the U.S. government to challenge the Constitutionality of the government's controls on the export of encryption software.  He sought to publish on the web and elsewhere encryption programs, which government export control regulations prohibits.

Junger brought suit in United States District Court for the Northern District of Ohio.  Judge James Gwin granted the government's motion for summary judgment, and denied Junger's motion summary judgment, ruling that encryption software is not speech deserving of strong First Amendment protections.

Judge Gwin's decision turned on his analysis of whether encryption software constituted expressive speech worthy of First Amendment protection.  He wrote that "The most important issue in the instant case is whether the export of encryption software source code is sufficiently expressive to merit First Amendment protection."   And he concluded that "although encryption source code may occasionally be expressive, its export is not protected conduct under the First Amendment."

As the Supreme Court observed in Roth v. United States, the First Amendment was adopted to foster the spread of ideas; "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." (upholding a federal statute that prohibited mailing obscene materials).  Conversely, speech that is "so far removed from any exposition of ideas, and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government'' lacks First Amendment protection.  Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. (ruling that commercial speech is not wholly without First Amendment protection).

In reviewing government regulation of computer software, the Court need examine the software involved.  Certain software is inherently expressive.  Such expressive software contains an "exposition of ideas," Chaplinsky v. State of New Hampshire.  In contrast, other software is inherently functional.  With such software, users look to the performance of tasks with scant concern for the methods employed or the software language used to control such methods.

Among computer software programs, encryption software is especially functional rather than expressive. ...  More than describing encryption, the software carries out the function of encryption.  The software is essential to carry out the function of encryption.   In doing this function, the encryption software is indistinguishable from dedicated computer hardware that does encryption.   [citations omitted, parentheses in original]

In contrast, in the Daniel Bernstein case, U.S. District Court Judge Marilyn Hall Patel held last August that the International Trafficking in Arms Regulations prohibiting export of strong encryption are both unconstitutionally vague and constitute an impermissible prior restraint of speech under the 1st Amendment.  She held that any language, including something written in a computer language, is speech, and is entitled to a high level of protection under the First Amendment.  That case is currently on appeal to the 9th Circuit Court of Appeals.

"The Ohio Court clearly doesn't understand the communicative nature of software," said Electronic Frontier Foundation attorney Shari Steele in a press release. "It's true that software helps to perform functions, but it does so by telling computers what to do. A good analogy is comparing software to videotapes; the information on a videotape tells the VCR what to play. But it certainly is speech deserving of the highest levels of First Amendment protection."

The EFF supports strong encryption rights, and has been supporting persons challenging the Constitutionality of encryption export restraints in the courts.

"The most disturbing thing about the Junger ruling," Steele continued, "is that the holding could apply to all software, not merely encryption software. The idea that a court could find that all software is not deserving of First Amendment protection is very disturbing."

Encryption Legislation

Also, Congress is considering several encryption bills which could remove or lessen encryption export restraints.  Last week House Speaker Newt Gingrich spoke about encryption at a gathering at 3Com headquarters in Santa Clara, California.  He stated that, "I don't think there should be a compromise.  I think the people who understand the technology and the people who understand national security have to come together to really work out a solution, which is superior to either position.  I'm looking not looking for half security and half commercial process.  I am looking for a genuine synthesis to create a synergistic understanding of what does America have to do in the 21st Century.  And I start with the premise that encryption ultimately will be universal and that people will be able to do it all over the world."