Junger vs. U.S. crypto-suit

[Declan McCullagh <declan@well.com>]

Thanks to JYA for putting these documents online; I wasn't able to convert
'em myself.

-Declan

************

http://cgi.pathfinder.com/netly/editorial/0,1012,792,00.html

The Netly News Network / Afterword
Junger vs. U.S.

By Declan McCullagh (declan@well.com)
April 2, 1997

Peter Junger decided to do it differently when he
filed a lawsuit against the Federal government
seeking to lift export controls on encryption
software. He could have mimicked the other two
crypto-suits and asked the government to let him
ship data-scrambling software overseas -- and sue
when the request was denied.

But Junger never sent that query to the Feds.
"In my case I've never applied for permission.
>From the beginning I'm raising the constitutional
issues. So it's a cleaner case," says Junger, a
63-year old law professor at Case Western Reserve
University.

Junger hopes to win by stressing that any
regulation requiring government approval of a
publication -- a "prior restraint" -- is
unconstitutional, even when applied to computer
programs. "My position is that I don't have to
apply for a license. It's unconstitutional for
you to require me to apply for a license," he
says. (The U.S. Supreme Court has repeatedly
ruled that the First Amendment's "chief purpose"
is "to prevent previous restraints upon
publication.")

Junger filed his lawsuit last spring. Now the
documents are online at http://jya.com/pdj.htm;
read on for some excerpts...

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Excerpted from Statement of issues, points, and
authorities

ISSUES

Prof. Junger challenges those provisions of the
ITAR, as written and as would be applied to his
conduct, that require a license or some other
government approval before disclosing
cryptographic software or technical data. The
following are principal standing and First
Amendment issues that plaintiff respectfully
suggests ought to be addressed at oral argument:

Standing Issues

I. Prof. Junger has alleged that he cannot
disclose at least some cryptographic information
(either cryptographic software or technical data)
to foreign persons or place some of the
information on the internet without a license.
Does Prof. Junger have standing to challenge the
regulations? Or must he first apply for a
license?

First Amendment Issues

II. As a threshold matter, is source code and
object code expression or so closely related to
expression that is protected by the First
Amendment?

III. There is no dispute that certain
cryptographic software and technical data is
subject to licensing under ITAR. Do the licensing
requirements amount to a system of
unconstitutional prior restraints?

IV. The government has asserted that export
controls on cryptographic software and technical
data are necessary to protect its ability to
gather foreign intelligence. Do the regulations
control a substantial amount of protected
expression that is unrelated to the government's
stated purpose?

V. Notwithstanding that all statutes and
regulations are imbued with some ambiguity, are
these regulations sufficiently clear to persons
of ordinary intelligence?

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Code that actually encrypts deserves First
Amendment protection apart from its own
expressive content. Code that actually encrypts
can be used to keep other communication secret
and confidential. To the extent that source code
and object code have a function, that function is
to protect the secrecy and confidentiality of
other communication. For this reason alone,
cryptographic computer code deserves First
Amendment protection. As a means of protecting
confidentiality and furthering other
communication. cryptographic code is no different
than the newsracks at issue in Lakewood or the
ink and paper at issue in Minneapolis Star &
Tribune Co. v. Comm. of Revenue, 460 U.S. 575 (
1983).

Any requirement that a person must first seek a
license or other government approval before
publishing or disclosing protected expression is
a classic prior restraint. Near v. Minnesota, 283
U.S. 697 (1931).

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