3 September 1997
See related documents: http://jya.com/pdj.htm
To: pr_list4@samsara.LAW.CWRU.Edu
Subject: Amended Complaint Filed in Cleveland Crypto Suit
Date: Wed, 03 Sep 1997 06:50:46 -0400
From: "Peter D. Junger" <junger@samsara.LAW.CWRU.Edu>
Press Release
New Complaint Filed in Suit Challenging Constitutionality of
Regulations Forbidding Publication of Software on Internet
Suit Seeks to Enjoin Enforcement of Regulations
on ``Export'' of Encryption Software
Programmers Are Entitled to at Least as Much Constitutional
Protection as Pornographers, Professor Claims
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Cleveland, Ohio, Tuesday, September 2, 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, September 2. --
In the wake of last week's decision in Bernstein v. U.S. Department of
State, in which Judge Patel of the federal district court in San
Francisco held that the regulations that forbid the publication of
encryption software on the Internet or the World Wide Web without a
license from the Department of Commerce ``are an unconstitutional
prior restraint in violation of the First Amendment'', lawyers for
Professor Peter Junger of Case Western Reserve University Law School,
in Cleveland, Ohio, filed a an amended complaint in his suit to enjoin
the government from enforcing those same regulations.
The regulations, which were initially part of the International
Traffic in Arms Regulations (``ITAR'') administered by the Department
of State and which are now contained in the Export Administration
Regulations (``EAR'') administered by the Department of Commerce,
originally required one to apply for and obtain a license under the
ITAR before disclosing any cryptographic software in any way to
``foreign persons''. Under the EAR, however, one is permitted to
export such software in books and other ``hard copy'', but is still
required to obtain a license before publishing the same software on
the Internet or the World Wide Web or in other electronic form or
media.
The amended complaint, which names Secretary of Commerce Daley as the
primary defendant, simplifies the issues by focusing only on the new
version of the regulations that are set out in the EAR. In that
complaint Professor Junger, who wishes to publish a number of
encryption programs, written by himself and others, on his World Wide
Site as part of the materials used in his course in Computing and the
Law, seeks not only relief for himself but also a ``preliminary and
permanent injunction enjoining the defendants . . . from
interpreting, applying and enforcing the encryption software and
technology provisions of EAR against any person who desires to
disclose or `export' . . . encryption software and technology.'' The
complaint alleges that those encryption regulation violate the freedom
of speech and of the press that are protected, particularly from prior
restraints such as licensing requirements, by the First Amendment
to the United States Constitution as has already been held by Judge
Patel in the Bernstein case.
The question of whether the export regulations on cryptography should
be relaxed is being hotly debated in Congress at the present time and
the software industry has expended considerable sums lobbying in favor
of weakening or abolishing those regulations, claiming that they cause
severe damage to the software industry in the United States and that
the restriction on the export of cryptographic software written in the
United States is leading to the export of programming jobs from the
United States to other countries without such regulations.
Professor Junger points out, however, that the case involves far more
than the effect of the EAR on the writing and publication of
cryptograpic programs by the software industry. ``The government's
claim is not that the publication of encryption software is not
protected by the First Amendment,'' he says. ``Rather its claim is
that no publication of software is protected, because software is
functional.
``If the government can constitutionally require me to get a license,
which I probably can't get, before I publish encryption software, they
could require me to get a licencse before I publish any sort of
software. And they just might do that it in order to standardize the
programs that are available and limit competition in favour of certain
selected large companies. They already have provisions that allow IBM
or Microsoft to get a license to export fairly strong encryption
programs that are not available to me or to any other individual
programmer or small enterprise.''
``What tends to get overlooked,'' Junger adds, ``is that computer
programs are not a floppy disk that one sticks into a computer to make
it work. Computer programs are written and published by human beings
just as, for example, pornography is. The Supreme Court recently held
in Reno v. ACLU that the full protection of the First Amendment
extends to pornography in cyberspace. I find it hard to believe that
programmers are not entitled to at least as much constitutional
protection as pornographers.''
Copies of the amended complaint will shortly be available at
<http://www.jya.com/> and <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