Peter D. Junger v. WILLIAM DALEY , United States Secretary of Commerce

8 Junger v. Daley, et al. No. 98-4045
Before any level of judicial scrutiny can be applied to the
Regulations, Junger must be in a position to bring a facial
challenge to these regulations. In light of the recent
amendments to the Export Administration Regulations, the
district court should examine the new regulations to
determine if Junger can bring a facial challenge.
For the foregoing reasons, we REVERSE the district court
and REMAND the case to the district court for consideration
of Junger’s constitutional challenge to the amended
regulations.
*The Honorable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0117P (6th Cir.)
File Name: 00a0117p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
P ETER D. J UNGER,
Plaintiff-Appellant,
v.
W ILLIAM DALEY , United
States Secretary of
Commerce, et al.,
Defendants-Appellees.
;>

1
No. 98-4045
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 96-01723—James S. Gwin, District Judge.
Argued: December 17, 1999
Decided and Filed: April 4, 2000
Before: MARTIN, Chief Judge; CLAY, Circuit Judge;
WEBER, District Judge.*

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2 Junger v. Daley, et al. No. 98-4045
_________________
COUNSEL
ARGUED: Gino J. Scarselli, ACLU OF OHIO
FOUNDATION, Cleveland, Ohio, for Appellant. Scott R.
McIntosh, U.S. DEPARTMENT OF JUSTICE, CIVIL
DIVISION, APPELLATE STAFF, Washington, D.C., for
Appellees. ON BRIEF: Gino J. Scarselli, Raymond Vasvari,
ACLU OF OHIO FOUNDATION, Cleveland, Ohio, Kevin F.
O’Neill, CLEVELAND-MARSHALL COLLEGE OF LAW,
Cleveland, Ohio, for Appellant. Scott R. McIntosh, U.S.
DEPARTMENT OF JUSTICE, CIVIL DIVISION,
APPELLATE STAFF, Washington, D.C., for Appellees.
David W. Addis, Kurt A. Wimmer, COVINGTON &
BURLING, Washington, D.C., Robert M. O’Neil, J. Joshua
Wheeler, THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION, Charlottesville,
Virginia, Paul F. Gamble, Bloomfield Hills, Michigan, for
Amici Curiae.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Chief Judge. This is a
constitutional challenge to the provisions of the Export
Administration Regulations, 15 C.F.R. Parts 730-74, that
regulate the export of encryption software. Peter D. Junger
appeals the district court’s grant of summary judgment in
favor of Secretary Daley and the other defendants.
The district court found that encryption source code is not
sufficiently expressive to be protected by the First
Amendment, that the Export Administration Regulations are
permissible content-neutral restrictions, and that the
Regulations are not subject to a facial challenge as a prior
restraint on speech. Subsequent to the district court’s holding
and the oral arguments before this Court, the Bureau of
Export Administration issued an interim final rule amending
No. 98-4045 Junger v. Daley, et al. 7
The Supreme Court has expressed the versatile scope of the
First Amendment by labeling as “unquestionably shielded”
the artwork of Jackson Pollack, the music of Arnold
Schoenberg, or the Jabberwocky verse of Lewis Carroll.
Hurly v. Irish-American Gay, Lesbian and Bisexual Group,
515 U.S. 557, 569 (1995). Though unquestionably
expressive, these things identified by the Court are not
traditional speech. Particularly, a musical score cannot be
read by the majority of the public but can be used as a means
of communication among musicians. Likewise, computer
source code, though unintelligible to many, is the preferred
method of communication among computer programers.
Because computer source code is an expressive means for
the exchange of information and ideas about computer
programming, we hold that it is protected by the First
Amendment.
The functional capabilities of source code, and particularly
those of encryption source code, should be considered when
analyzing the governmental interest in regulating the
exchange of this form of speech. Under intermediate
scrutiny, the regulation of speech is valid, in part, if “it
furthers an important or substantial governmental interest.”
O’Brien, 391 U.S. at 377. In Turner Broadcasting System v.
FCC, 512 U.S. 622, 664 (1994), the Supreme Court noted that
although an asserted governmental interest may be important,
when the government defends restrictions on speech “it must
do more than simply ‘posit the existence of the disease sought
to be cured.’” Id. (quoting Quincy Cable TV, Inc. v. FCC,
768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government
“must demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way.” Id. We recognize that
national security interests can outweigh the interests of
protected speech and require the regulation of speech. In the
present case, the record does not resolve whether the exercise
of presidential power in furtherance of national security
interests should overrule the interests in allowing the free
exchange of encryption source code.

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6 Junger v. Daley, et al. No. 98-4045
and that the Regulations are not subject to facial challenge on
prior restraint grounds.
We review the grant of summary judgment de novo. See
Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir.
1999).
The issue of whether or not the First Amendment protects
encryption source code is a difficult one because source code
has both an expressive feature and a functional feature. The
United States does not dispute that it is possible to use
encryption source code to represent and convey information
and ideas about cryptography and that encryption source code
can be used by programmers and scholars for such
informational purposes. Much like a mathematical or
scientific formula, one can describe the function and design
of encryption software by a prose explanation; however, for
individuals fluent in a computer programming language,
source code is the most efficient and precise means by which
to communicate ideas about cryptography.
The district court concluded that the functional
characteristics of source code overshadow its simultaneously
expressive nature. The fact that a medium of expression has
a functional capacity should not preclude constitutional
protection. Rather, the appropriate consideration of the
medium’s functional capacity is in the analysis of permitted
government regulation.
The Supreme Court has explained that “all ideas having
even the slightest redeeming social importance,” including
those concerning “the advancement of truth, science,
morality, and arts” have the full protection of the First
Amendment. Roth v. United States, 354 U.S. 476, 484 (1957)
(quoting 1 J OURNALS OF THE C ONTINENTAL C ONGRESS 108
(1774)). This protection is not reserved for purely expressive
communication. The Supreme Court has recognized First
Amendment protection for symbolic conduct, such as draft-
card burning, that has both functional and expressive features.
See United States v. O’Brien, 391 U.S. 367 (1968).
No. 98-4045 Junger v. Daley, et al. 3
the regulations at issue. See Revisions to Encryption Items,
65 Fed. Reg. 2492 (2000) (to be codified at 15 C.F.R. Parts
734, 740, 742, 770, 772, 774). Having concluded that the
First Amendment protects computer source code, we reverse
the district court and remand this case for further
consideration of Junger’s constitutional claims in light of the
amended regulations.
ENCRYPTION AND SOFTWARE BACKGROUND
Encryption is the process of converting a message from its
original form (“plaintext”) into a scrambled form
(“ciphertext”). Most encryption today uses an algorithm, a
mathematical transformation from plaintext to ciphertext, and
a key that acts as a password. Generally, the security of the
message depends on the strength of both the algorithm and
the key.
Encryption has long been a tool in the conduct of military
and foreign affairs. Encryption has many civil applications,
including protecting communication and data sent over the
Internet. As technology has progressed, the methods of
encryption have changed from purely mechanical processes,
such as the Enigma machines of Nazi Germany, to modern
electronic processes. Today, messages can be encrypted
through dedicated electronic hardware and also through
general-purpose computers with the aid of encryption
software.
For a general-purpose computer to encrypt data, it must use
encryption software that instructs the computer’s circuitry to
execute the encoding process. Encryption software, like all
computer software, can be in one of two forms: object code or
source code. Object code represents computer instructions as
a sequence of binary digits (0s and 1s) that can be directly
executed by a computer’s microprocessor. Source code
represents the same instructions in a specialized programming
language, such as BASIC, C, or Java. Individuals familiar
with a particular computer programming language can read
and understand source code. Source code, however, must be
converted into object code before a computer will execute the

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4 Junger v. Daley, et al. No. 98-4045
software’s instructions. This conversion is conducted by
compiler software. Although compiler software is typically
readily available, some source code may have no compatible
compiler.
REGULATORY BACKGROUND
The Export Administration Regulations create a
comprehensive licensing scheme to control the export of
nonmilitary technology, software, and commodities. In 1996,
the President transferred export jurisdiction over nonmilitary
encryption items from the State Department to the Commerce
Department’s Bureau of Export Administration.
The Regulations are structured around the Commodity
Control List, which lists items subject to export control. See
15 C.F.R. Part 774. Each item on the List is given an Export
Control Classification Number that designates the category of
the controlled item and the reasons why the government
controls the item’s export. See 15 C.F.R. § 738.2. The
reasons for control affect the nature and scope of the export
controls.
Encryption software, including both source code and object
code, is regulated under Export Control Classification
Number 5D002 for national security reasons. See id. § 772
Supp. 1. In addition, encryption technology and encryption
hardware are regulated for national security reasons under
different Classification Numbers. Generally, the Regulations
require a license for the export of all encryption items to all
foreign destinations, except Canada. See 65 Fed. Reg 2492,
2499 (to be codified at 15 C.F.R. § 742.15(a)). Although the
regulations provide some exceptions, most encryption
software in electronic form remains subject to the license
requirements for export. Encryption software in printed form,
however, is not subject to the Regulations. See 15 C.F.R.
§ 734.3(b)(2).
The Regulations define “export” as the “actual shipment or
transmission of items subject to the EAR out of the United
States.” Id. § 734.2(b)(1). For encryption software, the
No. 98-4045 Junger v. Daley, et al. 5
definition of “export” also includes publication of the
software on the Internet, unless steps are taken to restrict
foreign access to the Internet site. See 65 Fed. Reg. 2492,
2496 (to be codified at 15 C.F.R. § 734.2(b)(9)(ii)).
FACTUAL BACKGROUND
Peter Junger is a professor at the Case Western University
School of Law. Junger maintains sites on the World Wide
Web that include information about courses that he teaches,
including a computers and the law course. Junger wishes to
post on his web site encryption source code that he has
written to demonstrate how computers work. Such a posting
is defined as an export under the Regulations.
On June 12, 1997, Junger submitted three applications to
the Commerce Department, requesting determinations of
commodity classifications for encryption software programs
and other items. On July 4, the Export Administration told
Junger that Classification Number 5D002 covered four of the
five software programs he had submitted. Although it found
that four programs were subject to the Regulations, the Export
Administration found that the first chapter of Junger’s
textbook, Computers and the Law, was an allowable
unlicensed export. Though deciding that the printed book
chapter containing encryption code could be exported, the
Export Administration stated that export of the book in
electronic form would require a license if the text contained
5D002 software. Since receiving the classification
determination, Junger has not applied for a license to export
his classified encryption source code.
Junger filed this action to make a facial challenge to the
Regulations on First Amendment grounds, seeking
declaratory and injunctive relief that would permit him to
engage in the unrestricted distribution of encryption software
through his web site. Junger claims that encryption source
code is protected speech. The district court granted summary
judgment in favor of the defendants, holding that encryption
source code is not protected under the First Amendment, that
the Regulations are permissible content-neutral regulations,

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