Junger v. Daley

Citation: Junger v. Daley, 209 F.3d 481 (6th Cir. 2000), rev’g 8 F.Supp.2d 708 (N.D. Ohio 1998).

Factual Background
Plaintiff Peter Junger is a professor at Case Western Law School and teaches a course in computers and law. He wrote encryption source code demonstrating how computers work, and published one program in his course book. He applied for a government determination that five programs, one of which was in the book, were not covered by the regulations. BXA ruled that those in source code only were within 5D002 and were covered; further that the version printed in the book could be exported, but could not be exported in electronic form.

Junger challenged this decision, alleging that encryption source code was protected speech.

Trial Court Decision
The district court granted summary judgment for the government, holding that such “source code is not protected under the First Amendment, that the Regulations are permissible content-neutral regulations, and that the Regulations are not subject to facial challenge on prior restraint grounds.”

Appellate Court Decision
The Sixth Circuit reversed and remanded. Chief Justice Boyce Martin's opinion began by explaining encryption, source and object code, and compilers. Then he noted the Export Administration Regulations (“EAR”), formerly administered by the State Department and now by the Bureau of Export Administration (“BXA”) in the Commerce Department. He then described the Commodity Control List, and its Control Classification Number 5D002 which, for national security reasons, regulates the export of both source and object code (but not printed) versions of encryption software.

The court noted that “the fact that a medium of expression has a functional capacity should not preclude constitutional protection.” Citing First Amendment case protecting such actions as draft-card burning, the artwork of Jackson Pollock, the music of Arnold Schoenberg, and Lewis Carroll's Jabberwocky, Judge Martin said:


 * ”Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an expressive means of the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.”

The court recognized that “national security interests can outweigh the interests of protected speech,” but the burden is on the government to show this. Noting that the BXA relaxed the encryption regulations on January 14, 2000 (65 Fed. Reg. 2492) after the district court's decision and the appellate oral argument, it remanded the case to the District Court to consider Junger's rights in light of the government's burden of proof under the revised rules.