Junger v. Daley

OPINION AND ORDER

In October and November 1997, Plaintiff Peter Junger (“Junger”) and Defendants United States Secretary of Commerce, et al. (“the government”) filed cross-motions for summary judgment in this First Amendment case [Doc. 58, 62]. 1 In his motion for judgment, Plaintiff Junger seeks injunctive and declaratory relief from the government’s enforcement of export controls on encryption software. In support of his motion for in-junctive relief, Junger claims the Export Administration Regulations (“Export Regulations”), 15 C.F.R. pt. 730 et seq., violate rights protected by the First Amendment.

The government denies that the Export Regulations implicate First Amendment rights. The government says its licensing requirement seeks only to restrict the distribution of encryption software itself, not ideas on encryption. Stated otherwise, the government says it seeks to control only the engine for encrypting data. The government says it controls the distribution of sophisticated encryption software for valid national security purposes.

For the reasons that follow, the Court denies Plaintiff Junger’s motion for summary judgment, and grants the government’s motion for summary judgment.

I. Background

A. Description of claims made

Plaintiff Junger claims the Export Regulations violate rights protected by the First Amendment. In Count One of his five-count complaint, Plaintiff Junger says licensing requirements for exporting encryption software work a prior restraint, violating the First Amendment’s free speech clause. In Count Two, Junger argues that the Export Regulations are unconstitutionally overbroad and vague. In Count Three, he argues that the Export Regulations engage in unconstitutional content discrimination by subjecting certain types of encryption software to more stringent export regulations than other *712 items. In Count Four, Junger claims that the Export Regulations restrict his ability to exchange software, by that infringing his First Amendment rights to academic freedom and freedom of association. In Count Five, Junger alleges that executive regulation of encryption software under the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., is a violation of the separation of powers doctrine.

In addressing these claims, the Court decides whether encryption source code is sufficiently expressive to merit heightened First Amendment protection. The Court then examines whether the Export Regulations are a prior restraint on speech subject to greater First Amendment scrutiny. If the regulatory scheme does not warrant increased scrutiny, the Court decides if the scheme survives intermediate scrutiny.

The Court finds that the Export Regulations are constitutional because encryption source code is inherently functional, because the Export Regulations are not directed at source code’s expressive elements, and because the Export Regulations do not reach academic discussions of software, or software in print form. For these reasons, the Court grants the government’s motion for summary judgment and denies Junger’s motion for summary judgment.

B. Cryptography

Once almost the exclusive province of military and governmental bodies, cryptography is now increasingly available to businesses and private individuals wishing to keep their communications confidential. See Bernstein v. United States Dep’t of State, 974 F.Supp. 1288, 1292 (N.D.Cal.1997) (.“Bernstein III”). To keep their communications confidential, users encrypt and decrypt 2 communications, records and other data. Through encryption, users seek to prevent the unauthorized interception, viewing, tampering, and forging of such data. Without encryption, information sent by a computer is unsecured. Without encryption those other than the intended recipient may view sensitive information.

Encryption has been used for decades although the methods of encryption have changed. Until the end of World War II, mechanical devices commonly did encryption, such as Nazi Germany’s Enigma machines. Today, computers and electronic devices have largely replaced mechanical encryption. In using electronic devices, encryption can be done with dedicated hardware (such as a telephone scrambler’s electronic circuitry) or with computer software. Encryption software carries out a cryptographic “algorithm,” which is a set of instructions that directs computer hardware to encrypt plaintext into an encoded ciphertext. Mathematical functions or equations usually make up the instructions.

Like all software, encryption programs can take two general forms: object code and source code. Source code is a series of instructions to a computer in programming languages such as BASIC, PERL, or FORTRAN. Object code is the same set of instructions translated into binary digits (l’s and 0’s). Thus, source code and object code are essentially interchangeable. While source code is not directly executable by a computer, the computer can easily convert it into executable object code with “compiler” or “interpreter” software. 3

C. Regulatory background

On November 15, 1996, President Clinton issued Executive Order 13026. With that order, he transferred jurisdiction over export controls on nonmilitary encryption products and related technology from the State Department to the Commerce Department. 4 *713 The order specified that encryption products formerly designated as defense articles on the United States Munitions List after that would be subjected to Commerce Department regulations (the “Export Regulations”). In his order, the President found that “the export of encryption software, like the export of other encryption products described in this section, must be controlled because of such software’s functional capacity, rather than because of any possible informational value of such software....” Exec. Order No. 13026, 1996 WL 666563. The Export Regulations remain in effect. 5

The Export Regulations control the “export” of certain software. The Export Regulations define “export” of controlled encryption source code and object code software as “downloading, or causing the downloading of, such software to locations ... outside the United States ... unless the person making the software available takes precautions adequate to prevent unauthorized transfer of such code outside the United States.” 15 C.F.R. § 734.2(b)(9).

The Export Regulations forbid the transfer of certain encryption software outside the United States. Unless very difficult precautions are taken, posting software on the Internet is an export. See 15 C.F.R. § 734.2(b)(9)(ii)(B). However, it is nearly impossible for most Internet users to carry out or verify the precautions. 6 Because of the difficulty of the precautions, almost any posting of software on the Internet is an export.

The Export Regulations set up procedures to obtain approval for exporting items on the Control List. To export any item listed on the Commerce Control List, one must first submit a commodity classification request to the Bureau of Export Administration. See 15 C.F.R. Pts. 740-44. All items on the Commerce Control List are given an Export Control Classification Number, and Bureau of Export Administration regulations specify three categories of controlled. Encryption Items.

' Export Classification Number 5A002 covers encryption commodities (such as circuitry and hardware products), Export Classification Number 5D002 covers encryption software, 7 and Export Classification Number 5E002 covers encryption technology. See 15 C.F.R. § 774 supp. I. Although the Export Administration Act defines “technology” to include software, 50 U.S.CApp. § 2415(4), Bureau of Export Administration regulations treat encryption software the same as encryption commodities. 15 C.F.R. Part 774, Note following 5D002.

For software falling under Export Classification Numbers 5A002, 5D002 and 5E002, the Export Regulations requires licenses for export to all destinations except Canada. See 15 C.F.R. § 742.15(a). As later described, Plaintiff Junger’s application involves software classified under Classification Number 5D002. As to this classification number, licensing is required except for encryption source code in a book or other printed material, 15 C.F.R. § 734.3, Notes to Paragraphs (b)(2) and (b)(3). Encryption source code in printed form is not subject to the Export Regulations and, thus, is outside the scope of the licensing requirement.

D. ' Junger’s commodity classification requests

Plaintiff Junger is a law professor. He teaches a course titled “Computers and the Law” at Case Western Reserve University Law School in Cleveland, Ohio. Junger maintains sites on the World Wide Web that include information' about courses that he teaches, including a computers and law *714 course. His web sites also set out documents involved with this litigation. 8 Plaintiff Jun-ger uses his web site to describe the process of this litigation through press releases and filed materials. 9 Besides descriptions of this lawsuit, the web site has information from Junger’s courses and other topics of interest to him.

Plaintiff Junger wishes to post to his web site various encryption programs that he has written to show how computers work. Such a posting is an export under the Export Regulations. See 15 C.F.R. § 734.2(b)(9).

On June 12, 1997, Plaintiff Junger submitted three applications to the Commerce Department requesting determination of commodity classifications for encryption software programs and other items. With these applications, Plaintiff Junger sought a Commerce Department determination whether they restricted the materials from export. On July 4,1997, the Bureau of Export Administration told Junger that Export Classification Number 5D002 covered four of the five software programs he had submitted, and therefore were subject to the Export Regulations. Although it found that four programs were subject to the Export Regulations, the Commerce Department found that the first chapter of Junger’s textbook, Computers and the Law, was an allowed unlicenced export. 10 While deciding that the printed book chapter containing encryption code could be exported, the Commerce Department said that export of a software program itself would need a license. 11 After receiving the classification determination, Junger has not applied for a license to export his classified encryption software.

II. Legal standards

In reviewing the parties’ motions for summary judgment, the Court first examines the standard for judgment under Fed.R.Civ.P. 56. After a brief review of the standard for summary judgment, the Court examines the First Amendment protection afforded computer software. In deciding what level of protection is afforded and what level of scrutiny should be applied, the Court looks to whether the software is expressive or functional. Then, the Court considers whether the Commerce Department licensing scheme is a prior restraint of speech, whether Plaintiff Junger has standing to claim the Export Regulations are overbroad or vague, and then whether the Export Regulations are content-based discrimination.

A. Summary Judgment

Pursuant to Fed. Rule Civ. Proc. 56, summary judgment will be granted if the evidence presented in the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In assessing the merits of the motion, this court shall draw all justifiable inferences from the evidence presented in the record in the light most favorable to the non-moving party. Woythal v. Tex-Tenn Carp., 112 F.3d 243, 245 (6th Cir.), cert. denied, - U.S. -, 118 S.Ct. 414, 139 L.Ed.2d 317 (1997). However, an opponent to a motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but must set forth through competent and material evi *715 dence specific facts showing that there is a genuine issue for trial. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Miller v. Lorain County Bd. of Elections, 141 F.3d 252, 258-59 (6th Cir.1998).

Summary judgment is particularly appropriate where, as here, the parties contest only legal issues and there are no issues of material fact to be resolved by a trial.' See Oscar W. Larson Co. v. United Capitol Ins. Co., 64 F.3d 1010, 1012 (6th Cir.1995).

B. First Amendment Scrutiny

The scrutiny the Court will apply to the Export Regulations depends upon whether the export of encryption source code is expressive, and whether the Export Regulations are directed at the content of ideas. Prior restraints on expressive materials bear a heavy presumption against their constitutional validity, and are subject to the strictest judicial scrutiny. See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam).

If a law distinguishes among types of speech based on their content of ideas, the Court reviews it under strict scrutiny. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). To survive strict scrutiny, the government must employ narrowly tailored means that are necessary to advance a compelling government interest. See id.

If a law does not distinguish among types of speech based upon the content of the speech, the law will not be subject to strict scrutiny. Turner, 512 U.S. at 658, 114 S.Ct. 2445 (laws favoring broadcast programs over cable programs are not subject to strict scrutiny unless the laws reflect government preference for the content of one speaker). As described in Turner: “It would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others.” Id. at 660, 114 S.Ct. 2445.

If the Export Regulations are not expressive and if the Export Regulations are not aimed at the content of the ideas, then the Court reviews the regulations under an intermediate scrutiny standard. See id. at 662, 114 S.Ct. 2445. Under intermediate scrutiny, a law is constitutional if it furthers a substantial governmental interest, if the interest is unrelated to the suppression of free expression, and if the restriction is no greater than is essential to the furtherance of that interest. See id. (citing United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)).

III. Does the First Amendment protect export of software?

The most important issue in the instant ease is whether the export of encryption software source code is sufficiently expressive to merit First Amendment protection. This is a matter of first impression in the Sixth Circuit. Indeed, the Court is aware of only two other courts in the United States that have addressed this question, and they reached opposite results. 12 This Court finds 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, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the First Amendment was adopted to foster the spread of ideas: “The protection given speech and press was fashioned to assure unfettered interchange of *716 ideas for the bringing about of political and social changes desired by the people.” Id. at 484, 77 S.Ct. 1304 (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., 425 U.S. 748, 762, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (ruling that commercial speech is not wholly without First Amendment protection).

In reviewing governmental 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, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). 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. Like much computer software, encryption source code is inherently functional; it is designed to enable a computer to do a designated task. Encryption source code does not merely explain a cryptographic theory or describe how the software functions. 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.

In the overwhelming majority of circumstances, encryption source code is exported to transfer functions, not to communicate ideas. In exporting functioning capability, encryption source code is like other eneryption devices. For the broad majority of persons receiving such source code, the value comes from the function the source code does.

The Court now examines the relationship between source code’s inherent functionality and First Amendment protection. In Bernstein v. United States Dep’t of State, 922 F.Supp. 1426 (N.D.Cal.1996) {“Bernstein I”), the district court held that the inherent functionality of software does not vitiate its status as protected speech: instructions, do-it-yourself manuals, and recipes “are often purely functional,” but they are also protected as speech because they are written in a language. Bernstein I, 922 F.Supp. at 1435.

That court’s ruling rested on its conclusion that anything written in a language necessarily is protected speech: “[ljanguage is by definition speech, and the regulation of any language is the regulation of speech.” Id. at 1435 (quoting Yniguez v. Arizonans for Official English, 69 F.3d 920, 935 (9th Cir.1995), vacated on other grounds, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). Whether the alleged “speech” is actually expressive is immaterial if it is communicated through language. A court “need only assess the expressiveness of conduct in the absence of ‘the spoken or written word.’ ” Id. at 1434 (construing Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). 13

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. See Roth v. United States, 354 U.S. at 484; Virginia Citizens Consumer Council, 425 U.S. at 762, 96 S.Ct. 1817.

“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. *717 dismissed, — U.S. -, 118 S.Ct. 439, 139 L.Ed.2d 377 (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, 62 S.Ct. 766). 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, 100 S.Ct. 2343, 65 L.Ed.2d 341 (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,” 922 F.Supp. at 1435, 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.

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.

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, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). 14

In Spence v. State of Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam), the Supreme Court established guidelines for determining whether occasionally expressive conduct is “sufficiently imbued with the elements of communication to fall within the scope of the First ... Amendment.” Id. at 409-10, 94 S.Ct. 2727. “An intent to convey a particularized message [must be] present, and in the surrounding circumstances the likelihood [must be] great that the message would be understood by those who viewed it.” Id. at 411, 94 S.Ct. 2727. For example, in Johnson, an individual desecrated an American flag during the Republican National Convention, and the “overtly political nature of this conduct was both intentional and overwhelmingly apparent.” Johnson, 491 U.S. at 406, 109 S.Ct. 2533. Similarly, in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a student’s black arm band “conveyed an unmistakable message” about his stance on the Vietnam war, a “contemporaneous issue of intense political concern.” Id. at 505-06, 89 S.Ct. 733.

Applying this standard, it is evident that exporting encryption source code is not sufficiently communicative. In both Johnson-and Tinker, the expressive nature of the conduct was clear. Unlike Tinker, encryption source code does not convey “an unmistakable message.” Unlike Johnson, the communicative nature of encryption source code is not “overwhelmingly apparent.” Instead, source code is by design functional: it is created and, if allowed, exported to do a specified task, not to communicate ideas. Because the expressive elements of encryption source code are neither “unmistakable” nor “over *718 whelmingly apparent,” its export is not protected conduct under the First Amendment.

IV. Prior Restraint

Plaintiff Junger urges that the Export Regulations are invalid on their face as an unconstitutional prior restraint on the export of encryption source code. Specifically, he alleges that the Export Regulations function as a prior restraint by requiring prepub-lication review and licensing of inherently expressive encryption software. Junger further argues that the Export Regulations lack adequate procedural safeguards to prevent the licensing officials’ abuse of discretion. The Court finds that a facial challenge is inappropriate, and holds that the Export Regulations do not serve as a prior restraint on expressive conduct.

Prior restraints on publication of expressive materials are anathema to American constitutionalism. As the Supreme Court has recognized, “it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment’s free press] guaranty to prevent previous restraints upon publication.” Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). It is for this reason that “[a]ny prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (citations omitted).

In order for a licensing law to be invalidated by a prior restraint facial challenge, it “must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat” of censorship. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). The mere fact that regulated conduct possibly can be expressive is not enough to invalidate a law on its face on prior restraint grounds. See Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir.1996) (although sitting on city sidewalks may occasionally be expressive, city ordinance prohibiting sitting is not subject to facial challenge). As described above, the Court has found that exporting encryption software has little expressive nature. A facial attack upon legislation on First Amendment grounds is appropriate only where the challenged statute “is directed narrowly and specifically at expression or conduct commonly associated with expression.” See Lakewood, 486 U.S. at 760, 108 S.Ct. 2138.

Exporting encryption source code is not an activity that is “commonly associated with expression.” Source code is a set of instructions to a computer that is commonly distributed for the wholly non-expressive purpose of controlling a computer’s operation. It may, as the Court has noted, occasionally be exported for expressive reasons. Nevertheless, the prior restraint doctrine is not implicated simply because an activity may on occasion be expressive.

In Roulette, the Ninth Circuit recognized that Seattle’s anti-sitting ordinance impaired the unquestionably expressive acts of a registrar of voters, a street musician, the Freedom Socialist Party, and the National Organization for Women. 97 F.3d at 302. Nevertheless, the law was not an unconstitutional prior restraint because neither sitting nor lying on the sidewalk are “integral to, or commonly associated with, expression.” Id. at 304.

As in Roulette, exporting encryption software is not integral to expression. Because encryption software is not typically expression, a facial challenge does not succeed. Even if the Ex