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... ---------- 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? ---------- 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). ###