17 October 1997
Date: Thu, 16 Oct 1997 15:59:56 -0400
From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Subject: Press Release: Junger v. Daley
To: CYBERIA-L@LISTSERV.AOL.COM
Press Release
Summary Judgment Motion Filed in Suit Attacking
Restrictions on the ``Export'' of Software
Brief Claims Publication of Computer Software
Is Protected by First Amendment
Export Regulations Restrict Only Publication of Encryption Software,
Not Its Use
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Cleveland, Ohio, Tuesday, October 16, 1997
For Immediate Release
For More Information Contact:
Peter D. Junger (216) 368-2535
<junger@samsara.law.cwru.edu>
Gino Scarselli (216) 291-8601
<gscarsel@mail.multiverse.com>
Raymond Vasvari (216) 622-1780
<freespeech@mail.multiverse.com>
Or see URL: http://samsara.law.cwru.edu/comp_law/jvc/
To be added to, or removed from, the list of those who were sent this
press release, please send e-mail to <lawsuit@upaya.multiverse.com>.
_________________________________________________________________
Cleveland, Ohio, October, 16. --
Pointing out that no law forbids or restricts the use of encryption
software, attorneys for Professor Peter D. Junger have moved for
summary judgment on first amendment grounds in his suit to strike down
export regulations that forbid the publication of ``encryption
software'' on the Internet or in other electronic form.
The government justifies the restrictions on publication, which are
part of the Export Administration Regulations administered by the
U.S. Department of Commerce, by arguing that computer software is
functional and that the use that encryption software might be put to
could endanger national security. But, as Junger's lawyers point out
in their brief in support of the motion, ``[a]lthough the reasons the
government has given for controlling the export of encryption software
have to do with the software's potential use, the regulations do not
prohibit its use.''
``This is not a complicated case involving complex issues of computer
science or engineering,'' says Gino J. Scarselli, Professor Junger's
lead attorney. ``Once you recognize that computer programs are
written and published just like any other text---like mathematical
proofs and musical scores, for example---it becomes clear that the
regulatory scheme, which requires a would-be publisher to apply for
and obtain a license before he can publish, is a classic example of a
prior restraint and it's unconstitutional.''
``I am convinced,'' Scarselli adds, ``that a law prohibiting the use
of encryption software would be unconstitutional, for the same reason
that a law forbidding the manufacture and sale of printing presses or
word processors would be unconstitutional. But that's not the issue
in Junger's case. There is no law against the use of encryption
software; there are only regulations forbidding its publication. And
the fact that it is only publication on the Internet and in other
electronic form that is restricted does not help the government,
because the Supreme Court held this year that the Internet is entitled
to the full protection of the First Amendment.''
Junger's case is similar to one brought by Professor Daniel Bernstein
in which Judge Patel of the Federal District Court for the Northern
District of California recently declared that the challenged
regulations ``are in violation of the First Amendment on the grounds
of prior restraint and are, therefore, unconstitutional''. That
decision is now being appealed by the government.
Recently there has also been extensive debate in Congress over the
issue of whether the import and the domestic distribution of
cryptographic software should be restricted, as has been proposed by
the FBI and other law enforcement agencies who are unhappy with the
idea that they may not be able to read everyone's electronic mail.
But Professor Junger contends that his case and the Bernstein case
involve issues of much greater importance than the availability of
electronic envelopes. ``If the government's functionality argument
were to be upheld, it would mean that the government could suppress
the writing and publication of any software which might be used in
ways the government does not like. And not just software. Any
writing that delights or instructs or persuades has functionality.
The government's functionality argument could justify requiring you to
get a license before you publish a legal form book or a political
pamphlet or a book of sermons. And it is exactly that type of
censorship that led the adoption of the first amendment.''
Copies of the brief and motion will shortly be available at
<http://www.jya.com/>[*] and <http://samsara.law.cwru.edu/comp_law/jvd/>.
Copies of earlier pleadings and other documents in the case of Junger
v. Daley can be found at <http://samsara.LAW.CWRU.Edu/comp_law/jvd/>.
-30-
--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
[* Documents in preparation.]