TECHNOLOGY AND FREEDOM OF EXPRESSION

Case 3 Encryption Source Code and the First Amendment

Peter Junger is a law professor at Case Western University in Cleveland, Ohio, He maintains a Web site that includes course material, and he sought to post on that Web site encryption source code that he had written to illustrate how this technology worked. Data encryption is nothing more than the use of a secret code to ensure that confidentiality is not breached when a message is communicated.13 It works by relying on an algorithm that translates a plain text message such as "we will invade tomorrow" into some sort of unintelligible ciphertext. The only way that this ciphertext can be translated into something intelligible is by means of a key, which is available only to the recipient of the message. There are many commercial software products that enable users to encrypt their messages, but Junger had written his own encryption program.

In 1997 Junger submitted an inquiry to the Department of Commerce concerning the status of encryption software source code that he intended to post to his Web site. In keeping with the law against exporting certain encryption code, which had originally been classified by the United States as munitions, Junger was informed that a license would be required before he could post this source code. According to Junger v. Daley, "almost any posting of software on the Internet is an export."14 But Professor Junger had been allowed to publish encryption programs in his textbook Computers and the Law.

The federal government has long sought to control the dissemination of encryption software and products for obvious reasons. If strong encryption, that is, encryption with a virtually uncrackable 128-bit key, is employed by criminals or terrorists, it will stymie the surveillance efforts of law enforcement officials.

In response to this demand for an export license, Professor Junger challenged this decision in federal district court. He argued that the government's restriction was tantamount to prior restraint on his free speech rights. This case raises the larger question of whether the source code15 of computer software is a form of expression deserving First Amendment protection. The district court determined that encryption source code is not protected by the First Amendment because it is not really expressive speech. According to the court, the export regulation is a content-neutral regulation that did not violate Junger's free speech rights. The district court also found that encryption source code in digital form was "inherently functional... indistinguishable from dedicated computer hardware that does encryption."

Junger promptly appealed this decision, and the appeal was heard by the Sixth Circuit Court of Appeals. During this process export regulations were liberalized by the Clinton administration, but encryption software in electronic form was still considered subject to reporting requirements. In a surprising turn of events, the appeals court reversed the decision of the lower court, ruling that the First Amendment does indeed protect computer source code. The court admitted that the issue of First Amendment protection was a difficult one, since the source code is both expressive and functional. It is expressive like a literary work, but it also functions like a virtual "machine" that processes data or computes numbers. The district court had reasoned that the functional characteristics of this source code "overshadowed" its expressive features. But as the appeals court opined, "the fact that a medium of expression has a functional capacity should not preclude constitutional protection." The court also pointed to the "versatile scope" of the First Amendment, which has fully protected "the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll.".

Based on this reasoning, the Sixth Circuit reversed the district court on the matter of First Amendment protection and it remanded the case for further consideration in light of the amended export regulations (see Case 5.7, "Crypto Wars").

Question: Analyze this case by applying any four major ethical theories (Kantian, utilitarian, etc.) to answer these questions: The federal government clearly has an interest in regulating and restricting certain forms of speech such as encryption source code. The appeals court recognized this but concluded that the government had not made the case that the national security issues at stake implied the need to curb the free exchange of encryption source code. Can such a case be made? Should national security interests outweigh the interests of free speech in this case?