Federal appeals panel rules encryption source code is protected speech

Wednesday, April 5, 2000

Encryption source code is a form of speech protected by the First Amendment,
a federal appeals court ruled yesterday in the case of a Cleveland law professor
seeking to post encryption software on his Web site.

Peter Junger of Case Western Reserve University School of Law sued in August
1996 after the federal Bureau of Export Administration declared that he would
need a license to post encryption source code that was printed in his textbook
Computers and the Law.

Encryption is the process of scrambling data to ensure that electronic
messages are not intercepted and read by anyone other than the intended
recipient. A major application of encryption is to protect communication over
the Internet.

U.S. District Judge James Gwin dismissed Junger’s lawsuit in July 1998,
ruling that encryption source code was not a form of expression protected by the
First Amendment.

Junger appealed Gwin’s decision to the 6th U.S. Circuit Court of Appeals.
After the 6th Circuit heard oral arguments, the Bureau of Export Administration
amended its regulations. The new regulations relaxed export controls on
encryption, though many free-speech advocates say the new regulations still
infringe on free-speech rights.

“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 6th Circuit wrote yesterday in its opinion in Junger
v. Daley

The three-judge panel compared encryption source code to musical scores. Just
as computer programmers can only read encryption software, musicians, the court
reasoned, can only read musical scores.

“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 appeals panel wrote.

The 6th Circuit panel did note that “national security interests can outweigh
the interests of protected speech and require the regulation of speech.”

The appeals court ruling means that Junger’s lawsuit goes back down to the
district court, which will determine whether he can challenge the new encryption
export regulations on their face.

“This case has always been sort of pursuing a moving target because the
regulations have changed so many times since August 1996,” said Raymond Vasvari,
legal director for the American Civil Liberties Union of Ohio, which represented

“The core question has always been whether he can post portions of his book
online and whether he can exchange messages that contain as part of their text
source code relevant to encryption,” Vasvari said.

“At first blush this seems to be a very technical case, but it is hard to
overstate its importance,” he said. “For the first time, a federal appellate
court has decided that computer programming languages are entitled to the
protections of the First Amendment.”

Vasvari referred to the 6th Circuit’s decision as the first federal appeals
court opinion because the 9th Circuit’s opinion in Bernstein v. U.S.
Department of Justice
is being re-evaluated.

In May 1999, a divided three-judge panel of the 9th U.S. Circuit Court of
Appeals ruled in Bernstein that the encryption export regulations
constituted a prior restraint on free speech. The full panel of the 9th Circuit
agreed to rehear the decision. However, the en banc panel remanded the case back
down to the three-judge panel after the new regulations were issued.

“This is a great day for programmers, computer scientists and all Americans
who believe that privacy and intellectual freedom should be free from government
control,” Vasvari said of yesterday’s ruling.

Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of
Free Expression, also called the 6th Circuit’s opinion significant. O’Neil, who
wrote a friend-of-the-court brief on behalf of Junger, said the positive result
in the 6th Circuit was a little more surprising than the 9th Circuit’s ruling in

“This decision is more significant than Bernstein because of the
unpredictably of the 6th Circuit and they (the judges) had a far less favorable
federal district court decision than in the Bernstein case,” O’Neil said.

“This is an extremely important academic freedom case as well as an
encryption case,” O’Neil said.

Calls to the Department of Justice were not returned.