174 lines
9.4 KiB
HTML
174 lines
9.4 KiB
HTML
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<title>Peter Junger</title>
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<P> <HR> <P>
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From: Peter Junger
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<p>
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I am the plaintiff in the case of Junger v. Daley in which I seek to
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enjoin the government from enforcing the export regulations that
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require one to get a license before publishing cryptographic software
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on the Internet or the World Wide Web or transmitting it outside the
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United States by electronic means. The basis of the suit is the claim
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that the writing and publication of software is speech that is protected
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by the First Amendment to the United States Constitution.
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<p>
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I am afraid that most people believe that the importance of Junger v.
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Daley turns on the fact that the encryption of electronic messages is
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essential if we our to retain any vestige of privacy in electronic
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communications, and I, of course, agree that this is an important issue.
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I have always taken the position, however, that the true issue in my
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case, and in the Bernstein case which raises similar issues, is whether
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the First Amendment protects the writing, publication, and communication
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of software in general, not just encryption software.
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<p>
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As you probably know, in the Bernstein case Judge Patel of the Northern
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District of California held that software is speech that is protected
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by the First Amendment and the government has appealed that decision to
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the Ninth Circuit Federal Court of Appeals.
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<p>
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On the other hand, in my case Judge Gwin of the Federal District Court of
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the Northern District of Ohio has recently held that software is not
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protected by the First Amendment because it is a ``functional device''
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like a telephone circuit, saying:
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<p>
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<font="maroon">
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The Bernstein court's assertion that ``language equals protected
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speech'' is unsound. ``Speech'' is not protected simply because we
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write it in a language. Instead, what determines whether the First
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Amendment protects something is whether it expresses ideas....
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<p>
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``Fighting words'' are written or spoken in a language. While spoken
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or written in language, they are excluded from First Amendment
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protection. See, e.g., Sandul v. Larion, 119 F.3d 1250,1255 (6th
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Cir.), cert. dismissed, 118 S. Ct. 439 (1997) (observing that words
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``which by their very utterance inflict injury or tend to incite
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an immediate breach of the peace'' are not protected because they
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``are no essential part of any exposition of ideas ....'') (quoting
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Chaplinsky, 315 U.S. at 572. Similarly, commercial advertisements
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are written in a language, but are afforded a lesser level of
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protection under the First Amendment. See Central Hudson Gas &
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Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557,
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566 (1980) (acknowledging that the government may ban forms
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of communication more likely to deceive the public than to
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inform). Furthermore, the court in Bernstein I misunderstood the
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significance of source code's functionality. Source code is ``purely
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functional,'' ... in a way that the Bernstein Court's examples of
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instructions, manuals, and recipes are not. Unlike instructions,
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a manual, or a recipe, source code actually performs the function
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it describes. While a recipe provides instructions to a cook,
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source code is a device, like embedded circuitry in a telephone,
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that actually does the function of encryption.
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<p>
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While finding that encryption source code is rarely expressive, in
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limited circumstances it may communicate ideas. Although it is all
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but unintelligible to most people, trained computer programmers can
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read and write in source code. Moreover, people such as Plaintiff
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Junger can reveal source code to exchange information and ideas
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about cryptography.
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<p>
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Therefore, the Court finds that exporting source code is conduct that
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can occasionally have communicative elements. Nevertheless, merely
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because conduct is occasionally expressive, does not necessarily
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extend First Amendment protection to it. As the Supreme Court has
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observed, ``[i]t is possible to find some kernel of expression
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in almost every activity--for example, walking down the street or
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meeting one's friends at the shopping mall--but such a kernel is not
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sufficient to bring the activity within the protection of the First
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Amendment.'' City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
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</font>
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<p>
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Now you know, and I know, that Judge Gwin was wrong in his conclusion. I
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am, however, more and more convinced that most people, and most legislators
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and most judges, would tend to agree with Judge Gwin, and with the
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government, which argued in my case that:
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<p>
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<font="maroon">
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The linchpin of plaintiff's First Amendment argument is that
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``software is speech.'' This notion ...
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has unknown and potentially harmful implications. If it were
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necessary to decide the matter, the more prudent judicial finding
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would be that encryption software, whatever its informational
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value, is properly treated as a functional item. The common sense
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understanding of software -- as recognized by courts -- is as a set
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of instructions to a computer microprocessor that enables a computer
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to function a certain way. The common use of software is to perform
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tasks on a computer, ranging from word-processing, electronic mail,
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exploring the Internet, playing games, or encrypting data.
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<p>
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Much software, however, is designed to cause substantial
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harm. Software exists to spread and install ``viruses'' that can
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destroy computer hard-drives or the files they contain. Software
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also exists to ``hack'' into secure computer systems, such as
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banking and telephone systems. Such software can be used to invade
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privacy, commit fraud, and substantially disrupt or even endanger
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people's lives -- not because it contains a harmful ``idea'' but
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because it can do harmful things. Those who transmit such software
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cannot validly claim they were merely distributing an ``idea'' or
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``speech'' when that ``speech'' destroyed a computer hard-drive,
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shut down a phone system, or hacked into a bank account.
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</font>
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<p>
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It doesn't take much imagination to realize what a threat this view is to
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the Open Software movement, which, as Eric Raymond has pointed out
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is dependent on the free exchange of ideas, usually in the form of
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freely available source code for computer programs, over the Internet.
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It is already the case that programmers in the United States may not
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take part in the development of open cryptographic software, since they
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may not distribute their versions of the code over the Internet; consider
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the case of GNU Privacy Guard, for example. And over the past year,
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Congress has given serious consideration to laws that would make it
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a crime to ``manufacture'' encryption software without a back door
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permitting government access to encrypted data or to ``manufacture''
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software that could be used in commiting copyright violations, where, of
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course, ``manufacture'' means simply ``write''.
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<p>
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I have created an electronic discussion list called SoftSpeech to discuss
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the issues raised by Judge Gwin's decision, and I would like to invite
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you to subscribe and join in our discussions. Information about the
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discussion list, including how to subscribe, is available at the
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SoftSpeech web site: <http://samsara.law.cwru.edu/~sftspch/>.
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<p>
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I also hope that you will encourage others in the Open Software movement
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to join in our discussions and, more importantly, to express their
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concern about the need for constitutional protection for the writings
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of programmers just as for other writings. There is an important
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educational and public relations job to be done here.
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Finally, we will be filing a notice of appeal shortly in my case, and my
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lawyers assure me that it would be most helpful if some of
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the organizations that support the Open Software movement, like
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The Linux Journal and RedHat, to give just two examples, would be
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willing to submit an amicus brief supporting the claim to First Amendment
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protection for software. There were several amicus briefs filed in
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the Bernstein case, and we expect that the same amici will file briefs
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in support of our position in my appeal. But none of these briefs
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discussed the issue from the point of view of the Open Software
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movement.
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I would welcome your suggestions as to organizations and individuals
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who might be willing to join in signing such an amicus brief. Everyone
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here knows, of course, about Open Software and how important it is, and
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is going to be, for the healthy development of the Internet and the Web
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and the entire world economy in this Information Age. Most judges on
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the other hand will not have heard about it yet. The purpose of amicus
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briefs---an ``amicus'' is a ``friend of the court''---is to inform the
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court of issues---like the importance of free speech for programmers to
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the development of Open Software---in which the ``friend'' has special
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interest and expertise.
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<p>
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<font="navy">
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Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
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E-mail: <a
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href="mailto:junger@samsara.law.cwru.edu">junger@samsara.law.cwru.edu</a>,
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URL: <a href="http://samsara.law.cwru.edu">http://samsara.law.cwru.edu</a>
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</font>
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