                                                                           RECOMMENDED FOR FULL-TEXT PUBLICATION
8    Junger v. Daley, et al.                    No. 98-4045                     Pursuant to Sixth Circuit Rule 206
                                                                        ELECTRONIC CITATION: 2000 FED App. 0117P (6th Cir.)
                                                                                    File Name: 00a0117p.06
  Before any level of judicial scrutiny can be applied to the
Regulations, Junger must be in a position to bring a facial
challenge to these regulations. In light of the recent
amendments to the Export Administration Regulations, the        UNITED STATES COURT OF APPEALS
district court should examine the new regulations to                              FOR THE SIXTH CIRCUIT
determine if Junger can bring a facial challenge.                                   _________________
  For the foregoing reasons, we REVERSE the district court

                                                                                                    ;
and REMAND the case to the district court for consideration

                                                                                                     
of Junger’s constitutional challenge to the amended              PETER D. JUNGER,
                                                                                                     
regulations.                                                               Plaintiff-Appellant,
                                                                                                     
                                                                                                     
                                                                                                        No. 98-4045
                                                                             v.
                                                                                                     
                                                                                                      >
                                                                 WILLIAM DALEY, United               
                                                                                                     
                                                                                                     
                                                                 States Secretary of

                                                                          Defendants-Appellees. 
                                                                 Commerce, et al.,
                                                                                                     
                                                                                                   1
                                                                        Appeal from the United States District Court
                                                                         for the Northern District of Ohio at Akron.
                                                                      No. 96-01723—James S. Gwin, District Judge.
                                                                                  Argued: December 17, 1999
                                                                                Decided and Filed: April 4, 2000
                                                                  Before: MARTIN, Chief Judge; CLAY, Circuit Judge;
                                                                             WEBER, District Judge.*




                                                                    *
                                                                     The Honorable Herman J. Weber, United States District Judge for
                                                                the Southern District of Ohio, sitting by designation.

                                                                                                 1
2    Junger v. Daley, et al.                     No. 98-4045      No. 98-4045                       Junger v. Daley, et al.      7

                    _________________                                The Supreme Court has expressed the versatile scope of the
                                                                  First Amendment by labeling as “unquestionably shielded”
                         COUNSEL                                  the artwork of Jackson Pollack, the music of Arnold
                                                                  Schoenberg, or the Jabberwocky verse of Lewis Carroll.
ARGUED:         Gino J. Scarselli, ACLU OF OHIO                   Hurly v. Irish-American Gay, Lesbian and Bisexual Group,
FOUNDATION, Cleveland, Ohio, for Appellant. Scott R.              515 U.S. 557, 569 (1995).           Though unquestionably
McIntosh, U.S. DEPARTMENT OF JUSTICE, CIVIL                       expressive, these things identified by the Court are not
DIVISION, APPELLATE STAFF, Washington, D.C., for                  traditional speech. Particularly, a musical score cannot be
Appellees. ON BRIEF: Gino J. Scarselli, Raymond Vasvari,          read by the majority of the public but can be used as a means
ACLU OF OHIO FOUNDATION, Cleveland, Ohio, Kevin F.                of communication among musicians. Likewise, computer
O’Neill, CLEVELAND-MARSHALL COLLEGE OF LAW,                       source code, though unintelligible to many, is the preferred
Cleveland, Ohio, for Appellant. Scott R. McIntosh, U.S.           method of communication among computer programers.
DEPARTMENT OF JUSTICE, CIVIL DIVISION,
APPELLATE STAFF, Washington, D.C., for Appellees.                   Because computer source code is an expressive means for
David W. Addis, Kurt A. Wimmer, COVINGTON &                       the exchange of information and ideas about computer
BURLING, Washington, D.C., Robert M. O’Neil, J. Joshua            programming, we hold that it is protected by the First
Wheeler, THOMAS JEFFERSON CENTER FOR THE                          Amendment.
PROTECTION OF FREE EXPRESSION, Charlottesville,
Virginia, Paul F. Gamble, Bloomfield Hills, Michigan, for            The functional capabilities of source code, and particularly
Amici Curiae.                                                     those of encryption source code, should be considered when
                                                                  analyzing the governmental interest in regulating the
                    _________________                             exchange of this form of speech. Under intermediate
                                                                  scrutiny, the regulation of speech is valid, in part, if “it
                        OPINION                                   furthers an important or substantial governmental interest.”
                    _________________                             O’Brien, 391 U.S. at 377. In Turner Broadcasting System v.
                                                                  FCC, 512 U.S. 622, 664 (1994), the Supreme Court noted that
  BOYCE F. MARTIN, JR., Chief Judge. This is a                    although an asserted governmental interest may be important,
constitutional challenge to the provisions of the Export          when the government defends restrictions on speech “it must
Administration Regulations, 15 C.F.R. Parts 730-74, that          do more than simply ‘posit the existence of the disease sought
regulate the export of encryption software. Peter D. Junger       to be cured.’” Id. (quoting Quincy Cable TV, Inc. v. FCC,
appeals the district court’s grant of summary judgment in         768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government
favor of Secretary Daley and the other defendants.                “must demonstrate that the recited harms are real, not merely
                                                                  conjectural, and that the regulation will in fact alleviate these
  The district court found that encryption source code is not     harms in a direct and material way.” Id. We recognize that
sufficiently expressive to be protected by the First              national security interests can outweigh the interests of
Amendment, that the Export Administration Regulations are         protected speech and require the regulation of speech. In the
permissible content-neutral restrictions, and that the            present case, the record does not resolve whether the exercise
Regulations are not subject to a facial challenge as a prior      of presidential power in furtherance of national security
restraint on speech. Subsequent to the district court’s holding   interests should overrule the interests in allowing the free
and the oral arguments before this Court, the Bureau of           exchange of encryption source code.
Export Administration issued an interim final rule amending
6    Junger v. Daley, et al.                     No. 98-4045      No. 98-4045                      Junger v. Daley, et al.     3

and that the Regulations are not subject to facial challenge on   the regulations at issue. See Revisions to Encryption Items,
prior restraint grounds.                                          65 Fed. Reg. 2492 (2000) (to be codified at 15 C.F.R. Parts
                                                                  734, 740, 742, 770, 772, 774). Having concluded that the
  We review the grant of summary judgment de novo. See            First Amendment protects computer source code, we reverse
Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir.       the district court and remand this case for further
1999).                                                            consideration of Junger’s constitutional claims in light of the
                                                                  amended regulations.
  The issue of whether or not the First Amendment protects
encryption source code is a difficult one because source code         ENCRYPTION AND SOFTWARE BACKGROUND
has both an expressive feature and a functional feature. The
United States does not dispute that it is possible to use           Encryption is the process of converting a message from its
encryption source code to represent and convey information        original form (“plaintext”) into a scrambled form
and ideas about cryptography and that encryption source code      (“ciphertext”). Most encryption today uses an algorithm, a
can be used by programmers and scholars for such                  mathematical transformation from plaintext to ciphertext, and
informational purposes. Much like a mathematical or               a key that acts as a password. Generally, the security of the
scientific formula, one can describe the function and design      message depends on the strength of both the algorithm and
of encryption software by a prose explanation; however, for       the key.
individuals fluent in a computer programming language,
source code is the most efficient and precise means by which        Encryption has long been a tool in the conduct of military
to communicate ideas about cryptography.                          and foreign affairs. Encryption has many civil applications,
                                                                  including protecting communication and data sent over the
  The district court concluded that the functional                Internet. As technology has progressed, the methods of
characteristics of source code overshadow its simultaneously      encryption have changed from purely mechanical processes,
expressive nature. The fact that a medium of expression has       such as the Enigma machines of Nazi Germany, to modern
a functional capacity should not preclude constitutional          electronic processes. Today, messages can be encrypted
protection. Rather, the appropriate consideration of the          through dedicated electronic hardware and also through
medium’s functional capacity is in the analysis of permitted      general-purpose computers with the aid of encryption
government regulation.                                            software.
  The Supreme Court has explained that “all ideas having            For a general-purpose computer to encrypt data, it must use
even the slightest redeeming social importance,” including        encryption software that instructs the computer’s circuitry to
those concerning “the advancement of truth, science,              execute the encoding process. Encryption software, like all
morality, and arts” have the full protection of the First         computer software, can be in one of two forms: object code or
Amendment. Roth v. United States, 354 U.S. 476, 484 (1957)        source code. Object code represents computer instructions as
(quoting 1 JOURNALS OF THE CONTINENTAL CONGRESS 108               a sequence of binary digits (0s and 1s) that can be directly
(1774)). This protection is not reserved for purely expressive    executed by a computer’s microprocessor. Source code
communication. The Supreme Court has recognized First             represents the same instructions in a specialized programming
Amendment protection for symbolic conduct, such as draft-         language, such as BASIC, C, or Java. Individuals familiar
card burning, that has both functional and expressive features.   with a particular computer programming language can read
See United States v. O’Brien, 391 U.S. 367 (1968).                and understand source code. Source code, however, must be
                                                                  converted into object code before a computer will execute the
4    Junger v. Daley, et al.                     No. 98-4045      No. 98-4045                      Junger v. Daley, et al.    5

software’s instructions. This conversion is conducted by          definition of “export” also includes publication of the
compiler software. Although compiler software is typically        software on the Internet, unless steps are taken to restrict
readily available, some source code may have no compatible        foreign access to the Internet site. See 65 Fed. Reg. 2492,
compiler.                                                         2496 (to be codified at 15 C.F.R. § 734.2(b)(9)(ii)).
              REGULATORY BACKGROUND                                               FACTUAL BACKGROUND
  The Export Administration Regulations create a                     Peter Junger is a professor at the Case Western University
comprehensive licensing scheme to control the export of           School of Law. Junger maintains sites on the World Wide
nonmilitary technology, software, and commodities. In 1996,       Web that include information about courses that he teaches,
the President transferred export jurisdiction over nonmilitary    including a computers and the law course. Junger wishes to
encryption items from the State Department to the Commerce        post on his web site encryption source code that he has
Department’s Bureau of Export Administration.                     written to demonstrate how computers work. Such a posting
                                                                  is defined as an export under the Regulations.
  The Regulations are structured around the Commodity
Control List, which lists items subject to export control. See       On June 12, 1997, Junger submitted three applications to
15 C.F.R. Part 774. Each item on the List is given an Export      the Commerce Department, requesting determinations of
Control Classification Number that designates the category of     commodity classifications for encryption software programs
the controlled item and the reasons why the government            and other items. On July 4, the Export Administration told
controls the item’s export. See 15 C.F.R. § 738.2. The            Junger that Classification Number 5D002 covered four of the
reasons for control affect the nature and scope of the export     five software programs he had submitted. Although it found
controls.                                                         that four programs were subject to the Regulations, the Export
                                                                  Administration found that the first chapter of Junger’s
  Encryption software, including both source code and object      textbook, Computers and the Law, was an allowable
code, is regulated under Export Control Classification            unlicensed export. Though deciding that the printed book
Number 5D002 for national security reasons. See id. § 772         chapter containing encryption code could be exported, the
Supp. 1. In addition, encryption technology and encryption        Export Administration stated that export of the book in
hardware are regulated for national security reasons under        electronic form would require a license if the text contained
different Classification Numbers. Generally, the Regulations      5D002 software.         Since receiving the classification
require a license for the export of all encryption items to all   determination, Junger has not applied for a license to export
foreign destinations, except Canada. See 65 Fed. Reg 2492,        his classified encryption source code.
2499 (to be codified at 15 C.F.R. § 742.15(a)). Although the
regulations provide some exceptions, most encryption                Junger filed this action to make a facial challenge to the
software in electronic form remains subject to the license        Regulations on First Amendment grounds, seeking
requirements for export. Encryption software in printed form,     declaratory and injunctive relief that would permit him to
however, is not subject to the Regulations. See 15 C.F.R.         engage in the unrestricted distribution of encryption software
§ 734.3(b)(2).                                                    through his web site. Junger claims that encryption source
                                                                  code is protected speech. The district court granted summary
   The Regulations define “export” as the “actual shipment or     judgment in favor of the defendants, holding that encryption
transmission of items subject to the EAR out of the United        source code is not protected under the First Amendment, that
States.” Id. § 734.2(b)(1). For encryption software, the          the Regulations are permissible content-neutral regulations,
