Press Release Plaintiff Seeks Summary Judgment in Cleveland Case Challenging Licensing of ``Exports'' of Cryptographic Information Government Argues That Law Professor Cannot Challenge Regulation Requiring Him to Get Permission Before Teaching and Publishing Because He Did Not Apply for That Permission Oral Argument in Junger v. Christopher Set for Wednesday, November 20 Cleveland, Ohio, Tuesday, October 1, 1996 For Immediate Release For More Information Contact: Raymond Vasvari (216) 522-1925 Gino Scarselli (216) 291-8601 Or see URL: http://samsara.law.cwru.edu/comp_law/jvc/ Cleveland, Ohio, Oct. 1 -- Lawyers for Professor Peter D. Junger today filed a brief and a motion for summary judgment in Junger v. Christopher, the case challenging the licensing of the communication of ``cryptograhic software'' that is pending before Judge Donald C. Nugent in the Federal District Court here. Junger seeks an injunction against the enforcement of provisions of the International Traffic in Arms Regulations that require him to get the permission of the State Department's Office of Defense Trade Controls (the "ODTC") before he can communicate information about cryptographic software to foreign persons, ``whether in the United States or abroad.'' The penalty for failing to get such permission before disclosing the information can be as great as a fine of one million dollars and imprisonment for ten years. These provisions effectively prevent Junger from admitting foreign students to the course that he teaches about Computers and the Law at Case Western Reserve Law School in Cleveland, Ohio, and keep him from publishing his course materials and articles containing cryptographic software, or explaining what it does, how and where to get it, and how to use it. The challenged licensing scheme threatens the long-run viability of the United States software industry and, according to a blue-ribbon panel of the National Research Council, already costs that industry at least ``a few hundred million dollars per year ..., and all indications are that this figure will only grow in the future.'' The regulations have been extensively criticized by industry and bills to repeal or limit them are now pending in Congress. Junger's legal challenge is not based, however, on the economic damage that the ITAR's cryptographic licensing scheme imposes on the software industry and the nation's economy, but rather on the unconstitutional restraints that it imposes on anyone who wants to speak or write publically about any computer program that has, in the words of the ITAR, the ``capability of maintaining secrecy or confidentiality of information or information systems.'' Junger does not challenge the constitutionality of requiring one to get a license before exporting a physical cryptographic device: ``It isn't unconstitutional for the Office of Defense Trade Controls to damage the computer industry and our economy by requiring export licenses for cryptographic hardware, but information about cryptographic software is, as the National Research Council has pointed out, `pure knowledge that can be transported over national borders inside the heads of people or via letter.' Requiring the permission of the government before one can communicate knowledge is unconstitutional. Such a prior restraint is, in fact, the paradigmatic example of a violation of the First Amendment.'' THE GOVERNMENT ARGUES THAT PLAINTIFF MUST APPLY FOR PERMISSION TO SPEAK BEFORE HE CAN CHALLENGE THE REQUIREMENT THAT HE APPLY FOR SUCH PERMISSION In motions and briefs submitted August 21st, the government has asked the court to dismiss the lawsuit, or in the alternative, to grant the government judgment prior to trial. The government makes the initial argument that Junger lacks standing to claim that the provisions of the ITAR requiring him to get a formal license or other permission from the ODTC before he publically communicates information about cryptographic software, including the contents of the software itself, are unconstitutional. And it also argues that that claim is neither ``ripe'' nor ``colorable'', because Junger has not applied to the ODTC for such permission. Junger takes the position that as a law teacher who venerates the First Amendment it would be as improper for him to request the federal censors for permission to speak and publish as it would be for him openly violate the law. As he puts it: ``My duty is to challenge these unconstitutional regulations, not to give in to them nor to violate them in an act of civil disobedience.'' His lawyers point out in their briefs that few propositions of constitutional law are better established than the rule that a plaintiff does not have to submit to an unconstitutional restraint on speech and on the press before challenging it in court. ``Those arguments by the government are rather strange,'' says Gino J. Scarselli, one of Junger's lawyers, ``they seem to be based on their argument that cryptographic software is actually hardware because it is functional.'' And then he adds, ``Of course, that argument is also rather strange.'' THE GOVERNMENT ARGUES THAT SOME OF THE MATERIAL AT ISSUE IS EXEMPT UNDER THE ITAR The government also contends that some of the information at issue may be exempt from the ITAR's licensing requirements as technical data that is in the ``public domain'' because it is available to the public through ``fundamental research in science and engineering'' or through ``sales at newsstands and bookstores.'' ``That hardly is a defense,'' says Scarselli, ``since it is quite clear that the government will not concede that all of the information that Professor Junger wants to be able publish and discuss is in the public domain. And to make matters worse, the only way that Professor Junger can actually find out whether the government will treat particular information as being exempt from the formal licensing requirements is to apply to the ODTC for it calls a Commodity Jurisdiction Determination, which in reality is just another form of license.'' ``It is not as if I am engaged in fundamental research in science and engineering.'' Junger adds. ``What I want to publish and discuss has to do with the political and legal issues that are raised by computer technology, including, of course, cryptography. ``For just one example, since lawyers have a legal and ethical duty to protect the confidences of their clients, I am convinced that lawyers who use electronic mail or other computer technologies to communicate with their clients, or to store information supplied by their clients, are in some circumstances ethically, and perhaps even legally, required to use cryptography to maintain the confidentiality of that information. And yet I cannot publically explain to law students and lawyers--and lawyers cannot publically explain to their clients--how to obtain and use effective cryptographic software without first getting the government's permission to disclose that information. And, of course, if the cryptographic software really is effective, then there is little or no chance that the government will permit its disclosure.'' THE GOVERNMENT ARGUES THAT CRYPTOGRAPHIC SOFTWARE IS NOT PROTECTED BY THE FIRST AMENDMENT BECAUSE IT IS FUNCTIONAL There is no law in the United States that forbids or regulates the use of cryptography. Yet the government argues that the information in texts containing cryptographic software, including recipes for creating such software, can be used in a computer to preserve secrecy and confidentiality, and concludes that cryptographic software is ``conduct'' and ``functional'' and is thus not a text that is constitutionally protected as speech. Junger's lawyers, on the other hand, say that his claims do not relate to the conduct of running a cryptographic program on a computer--conduct that is not regulated by the ITAR, after all--and that he only challenges the restraints that the ITAR impose on the communication of information about how to carry on such legal conduct. ``Expressive conduct is exactly what is protected by the First Amendment,'' says Raymond Vasvari, another of Junger's lawyers. ``And if that expression were not functional, if it were not effective, there would be no need to protect it. The government's argument turns two hundred years of First Amendment jurisprudence on its head.'' ``The government's arguments about software being conduct and functional are striking examples of the sort of confusion that pervades the whole area of Computers and the Law,'' Junger says. ``Trying to clear up such confusion is my major goal in my course in Computers and the Law. In fact, when I started teaching that course in 1993, I wrote some cryptographic software to assist my students in grasping the distinction between software as a text that can be communicated, and that is protected by copyright law and the First Amendment, and software as a process that runs in a computer's central processor that can be protected by patents, but not by copyrights. If it weren't so frustrating, it would almost be funny that I cannot publish that software because of the prior restraints imposed by the defendants' interpretation of the ITAR, even though it is perfectly legal for me, or for any one else, including `foreign persons,' to actually run such software on a computer. The government's confusion is so extensive that an agent of the ODTC has actually told me that software, cryptographic software, is actually hardware.'' ``It is quite clear to me,'' Junger adds, ``that the State Department and the National Security Agency and other elements in the executive branch of the government are attempting to restrain the communication of information about cryptographic software not only abroad, but also within the United States, because they do not want us actually to be able to use cryptography to preserve the privacy of our thoughts and our communications. It is as if the government required one to get a license before explaining how to make or use an envelope, even though it did not forbid the use of envelopes themselves. After all, all that cryptographic software is is a way of making electronic envelopes.'' ORAL ARGUMENT SCHEDULED Junger v. Christopher has been placed on a fast track by Judge Nugent. On September 5 he established a briefing schedule: the plaintiff's brief was due and was filed today and the government's response is due on Friday, October 18. Oral argument is scheduled for Wednesday, November 20. Judge Nugent's decision is expected before the first of the year. BACKGROUND ON THE LITIGATION Litigation is expensive. Professor Junger and his volunteer lawyers were only able to bring the suit because of a generous gift by an anonymous donor of $5,000 that was used to create the ITAR Legal Attack Fund. Additional donations by Professor Junger and others have increased that fund to more than seven thousand dollars. Scarselli and Vasvari are lawyers in private practice in Cleveland who have dedicated much of their professional lives to the protection of First Amendment freedoms. The third lawyer on the team is Kevin O'Neill, a law professor at Cleveland State University and the former legal director of the Ohio Chapter of the American Civil Liberties Union. --30-- -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu