To: pr_list4@samsara.LAW.CWRU.Edu Subject: Press Release Date: Thu, 26 Mar 1998 15:37:38 -0500 From: "Peter D. Junger" <junger@samsara.LAW.CWRU.Edu> Press Release New Judge to Decide Whether Export Restrictions on Software Violate Constitutional Guarantees of Freedom of Speech and of the Press Reply Briefs in Junger v. Daley Available on World Wide Web Government Argues that Much Software is Harmful ---------------------------------------------------------------- Cleveland, Ohio, Tuesday, March 26, 1998 For Immediate Release For More Information Contact: Peter D. Junger (216) 368-2535 <junger@samsara.law.cwru.edu> Gino Scarselli (216) 291-8601 <gscarsel@mail.multiverse.com> Or see URL: http://samsara.law.cwru.edu/comp_law/jvc/ To be added to, or removed from, the list of those who were sent this press release, please send e-mail to <lawsuit@upaya.multiverse.com>. _________________________________________________________________ Cleveland, Ohio, March 26 -- A status conference in the case of Junger v. Daley, the suit in which a law professor at Case Western Reserve University in Cleveland, Ohio seeks to enjoin the enforcement by the United States Department of Commerce of the export regulations on encryption software, will be held Friday, March 27, at 10:00 a.m. in the chambers of Federal District Judge James S. Gwin in the federal courthouse in Akron, Ohio. The case turns on the issue of whether the publication in electronic form of encryption software---software that is used to preserve the privacy of electronic communications and data stored on a computer---is entitled to protection under the First Amendment to the United States Constitution. Judge Gwin, a recent appointee to the federal bench who previously served on the Ohio Court of Common Pleas, has replaced Judge Donald C. Nugent as the judge responsible for the litigation. The plaintiff, Professor Peter Junger, who teaches a course in Computing and the Law and who wishes to publish his class materials containing some encryption programs on his World Wide Web server, seeks an injunction against the enforcement by the defendant, Commerce Secretary Daley, of the export regulations promulgated the Department of Commerce that require anyone who wishes to publish encryption software of the Internet or on the World Wide Web to first obtain a license from the Bureau of Export Administration. Both sides have filed for summary judgment. Junger argues that the freedoms of speech and of the press that are secured by the First Amendment protect the writing and publication of computer programs. The government, on the other hand, argues that computer programs are not entitled to the protection of the First Amendment because they are ``functional''. Each side has filed a brief in support of its motion for summary judgment. These briefs and the complaint and motions for summary judgment are available at <http://www.jya.com/pdj.htm> and <http://samsara.law.cwru.edu/comp_law/jvd/>. In addition both sides have filed reply briefs that are now available at: <http://www.jya.com/pdj6.htm> <http://www.jya.com/pdj7.htm> In his reply brief the plaintiff's lawyers argue: ``Making software available on the Internet and the World Wide Web is publication of that software, and publication in that medium is entitled to the unqualified protection of the First Amendment.'' The government responds to this argument in its reply brief by claiming that software is a ``functional item'' and thus not entitled to protection as speech. In furtherance of this claim it points out, ``Much software ... is designed to cause substantial harm,'' and that ``software can be used to invade privacy, commit fraud, and substantially disrupt and endanger people's lives.'' ``That is rather a perverse argument,'' says Junger, ``considering that encryption software is used to protect against exactly the harms that the government lists and that there is no law against the use of encryption software, while, of course, there are laws against invading privacy, committing fraud, and substantially disrupting and endangering people's lives. It is clear that the government does not claim just the right to regulate the writing and publication of encryption software. It claims the right to forbid the writing and publication of any type of computer program whatsoever without being in any way restricted by the First Amendment. There are, of course, some types of speech, like obscenity, that the courts have held are not entitled to the protection of the First Amendment, but no court has ever subscribed to the government's remarkable theory that the First Amendment does not protect functional speech.'' ``My case,'' says Junger, ``is not just about the constitutionality of the regulations forbidding the export of encryption software, though that is an extremely important issue. The real issue is whether the First Amendment protects the writing and publication of any type of computer program.'' -30-