Press Release

Peter D. Junger (junger@samsara.LAW.CWRU.Edu)
Thu, 26 Mar 1998 15:37:38 -0500

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                            Press Release

 New Judge to Decide Whether Export Restrictions on Software Violate
   Constitutional Guarantees of Freedom of Speech and of the Press

 Reply Briefs in Junger v. Daley Will Be Available on World Wide Web

           Government Argues that Much Software is Harmful

   ----------------------------------------------------------------

             Cleveland, Ohio, Tuesday, March 26, 1998
                        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>

        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, March 26 --

A status conference in the case of Junger v. Daley, the suit in which
a law professor at Case Western Reserve University in Cleveland, Ohio
seeks to enjoin the enforcement by the United States Department of
Commerce of the export regulations on encryption software, will be
held Friday, March 27, at 10:00 a.m. in the chambers of Federal
District Judge James S. Gwin in the federal courthouse in Akron,
Ohio. The case turns on the issue of whether the publication in
electronic form of encryption software---software that is used to
preserve the privacy of electronic communications and data stored on a
computer---is entitled to protection under the First Amendment to the
United States Constitution.

Judge Gwin, a recent appointee to the federal bench who previously
served on the Ohio Court of Common Pleas, has replaced Judge Donald
C. Nugent as the judge responsible for the litigation.

The plaintiff, Professor Peter Junger, who teaches a course in
Computing and the Law and who wishes to publish his class materials
containing some encryption programs on his World Wide Web server,
seeks an injunction against the enforcement by the defendant, Commerce
Secretary Daley, of the export regulations promulgated the Department
of Commerce that require anyone who wishes to publish encryption
software of the Internet or on the World Wide Web to first obtain a
license from the Bureau of Export Administration.

Both sides have filed for summary judgment. Junger argues that the
freedoms of speech and of the press that are secured by the First
Amendment protect the writing and publication of computer programs.
The government, on the other hand, argues that computer programs are
not entitled to the protection of the First Amendment because they are
``functional''.

Each side has filed a brief in support of its motion for summary
judgment. These briefs and the complaint and motions for summary
judgment are available at <http://www.jya.com/> and
<http://samsara.law.cwru.edu/comp_law/jvd/>. In addition both sides
have filed reply briefs that are now, or shortly will be, available at
<http://www.jya.com/pdj6.htm> and <http://www.jya.com/pdj7.htm>.

In his reply brief the plaintiff's lawyers argue: ``Making software
available on the Internet and the World Wide Web is publication of
that software, and publication in that medium is entitled to the
unqualified protection of the First Amendment.''

The government responds to this argument in its reply brief by
claiming that software is a ``functional item'' and thus not entitled
to protection as speech. In furtherance of this claim it points out,
``Much software ... is designed to cause substantial harm,'' and that
``software can be used to invade privacy, commit fraud, and
substantially disrupt and endanger people's lives.''

``That is rather a perverse argument,'' says Junger, ``considering
that encryption software is used to protect against exactly the harms
that the government lists and that there is no law against the use of
encryption software, while, of course, there are laws against invading
privacy, committing fraud, and substantially disrupting and
endangering people's lives. It is clear that the government does not
claim just the right to regulate the writing and publication of
encryption software. It claims the right to forbid the writing and
publication of any type of computer program whatsoever without being
in any way restricted by the First Amendment. There are, of course,
some types of speech, like obscenity, that the courts have held are
not entitled to the protection of the First Amendment, but no court
has ever subscribed to the government's remarkable theory that the
First Amendment does not protect functional speech.''

``My case,'' says Junger, ``is not just about the constitutionality of
the regulations forbidding the export of encryption software, though
that is an extremely important issue. The real issue is whether the
First Amendment protects the writing and publication of any type of
computer program.''

                                 -30-

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