24 April 1999
Source: Hardcopy of 76 pages from Gino Scarselli, Associate Legal Director, ACLU of Ohio, co-lead attorney for Peter Junger.

For comprehensive files see Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/

And, http://jya.com/pdj.htm

See Junger's ACLU Proof Brief for Appeal

NO. 98-4045
__________________________________________________ __________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________
PETER D. JUNGER, Plaintiff-Appellant, v. WILLIAM M. DALEY, SECRETARY OF COMMERCE, et al., Defendants-Appellees.

__________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO __________________
PROOF BRIEF FOR THE APPELLEES __________________

| DAVID W. OGDEN Acting Assistant Attorney General EMILY M. SWEENEY United States Attorney WILLIAM B. SCHULTZ
Deputy Assistant Attorney General

SCOTT R. McINTOSH
Attorney, Appellate Staff
Civil Division, Room 9550
Department of Justice
601 D Street, N.W.
Washington, D.C. 20530-0001
(202) 514-4052

__________________________________________________ __________________________________________________

TABLE OF CONTENTS
| Page
TABLE OF AUTHORITIES | iii
STATEMENT REGARDING ORAL ARGUMENT | vii
STATEMENT OF JURISDICTION | 1
STATEMENT OF ISSUES | 2
STATEMENT OF THE CASE | 2
STATEMENT OF FACTS | 4
STANDARD OF REVIEW | 19
SUMMARY OF ARGUMENT | 19
ARGUMENT | 22
THE EAR'S CONTROLS ON THE EXPORT OF ENCRYPTION SOURCE CODE DO NOT VIOLATE THE FIRST AMENDMENT | 22
I. Introduction | 22
II. The EAR's Export Controls Satisfy Intermediate Scrutiny | 28
III. The EAR's Export Controls Are Not A Facially Unconstitutional Prior Restraint | 52
CONCLUSION | 65
CERTIFICATE OF COMPLIANCE |
CERTIFICATE OF SERVICE |
STATUTORY ADDENDUM |
DESIGNATION OF APPENDIX |

TABLE OF AUTHORITIES

Cases

[Brief page numbers for citations omitted here]

Ater v. Armstrong, 961 F.2d 1224 (6th Cir.), cert. denied, 506 U.S. 985 (1992)

Bateman v. Mnemonics. Inc., 79 F.3d 1532 (11th Cir. 1996)

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995), cert. denied, 517 U.S. 1119 (1996)

City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)

Connection Distributing co. v. Reno, 154 F.3d 281 (6th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3484 (Jan. 19, 1999)

East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.), cert. denied, 516 U.S. 909 (1995)

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)

Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)

HBO v. FCC, 567 F.2d 9 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977)

Haig v. Agee, 453 U.S. 280 (1981)

Jones Intercable of San Diego. Inc. v. City of Chula Vista, 80 F.3d 320 (9th Cir. 1996)

Lovell v. Griffin, 303 U.S. 444 (1938)

Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997)

New York Times v. United States, 403 U.S. 713 (1970)

Reno v. ACLU, 117 S. Ct. 2329 (1997)

Richland Bookmart Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998)

Sega Enterprises. Ltd. v. Accolade. Inc., 977 F.2d 1510 (9th Cir. 1993)

Shuttlesworth v. City of Birmingham 394 U.S. 147 (1969)

Smith v. Wal-Mart Stores. Inc., 167 F.3d 286 (6th Cir. 1999)

Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th Cir.), cert. denied 502 U.S. 899 (1991)

The Enterprise, Inc. v. United States, 833 F.2d 1216 (6th Cir. 1987)

Turner Broadcasting System. Inc. v. FCC, 512 U.S. 622 (1994)

Vance v. Universal Amusement Co., 445 U.S. 308 (1980)

Ward v. Rock Against Racism, 491 U.S. 781 (1989)

Statutes and Regulations

18 U.S.C. 1030(a)(5)(A)
28 U.S.C. 1291
28U.S.C.1331

15 C.F.R. Parts 730-774
15 C.F.R. § 730.3
15 C.F.R. § 732.2(b)
15 C.F.R. § 734.1(a)
15 C.F.R. § 734.2(a)
15 C.F.R. § 734.2(b)(1)
15 C.F.R. § 734.2(b)(2)
15 C.F.R. § 734.2(b)(2)(ii)
15 C.F.R. § 734.2(b)(9)(i)(B)
15 C.F.R. § 734.2(b)(9)(ii)
15 C.F.R. § 734.3(b)
15 C.F.R. § 734.3(b)(2)
15 C.F.R. § 734.3(b)(3)
15 C.F.R. § 734.3(b)(3)
15 C.F.R. § 734.7-734.10
15 C.F.R. § 734.7(a)
15 C.F.R. § 734.8
15 C.F.R. § 734.9
15 C.F.R. § 736.1(b)(1)
15 C.F.R. § 736.2(b)(1)
15 C.F.R. § 738.2(d)(1)-(2)
15 C.F.R. § 738.2(d)(2)(i)
15 C.F.R. § 738.4(a)
15 C.F.R. § Part 740
15 C.F.R. § 740.8
15 C.F.R. § 740.17
15 C.F.R. § 742.2-742.16
15 C.F.R. § 742.15
15 C.F.R. § 742.15(a)
15 C.F.R. § 742.15(b)
15 C.F.R. § 742.15(b)(1)-(7)
15 C.F.R. § 742.15(b)(2)-(7)
15 C.F.R. § 742.15(b)(8)-(9)
15 C.F.R. § 748.3(a)
15 C.F.R. § Part 772
15 C.F.R. 774 Supplement No. 1 (Commerce Control List)
15 C.F.R. 774 Supplement No. 1, ECCN 5A002
15 C.F.R. 774 Supplement No. 1, ECCN 5D002
15 C.F.R. 774 Supplement No. 1, ECCN 5D002
15 C.F.R. 774 Supplement No. 1, ECCN 5E002
22 C.F.R. Parts 120-130

Other Materials

61 Fed. Reg. 58,767 (Nov. 19, 1996)
61 Fed. Reg. 68,572 (Dec. 30, 1996)
63 Fed. Reg. 72,156 (Dec.31, 1998)

32 Weekly Comp. Pres. Doc. 2397 (Nov. 15, 1996)

STATEMENT REGARDING ORAL ARGUMENT

The government concurs with the appellant that this is an appropriate case for the Court to hear oral argument. The export control regulations at issue in this case have been adopted at the direction of the President of the United States to protect important national security and foreign policy interests. Oral argument would assist the Court in understanding the regulatory provisions and in evaluating the parties arguments regarding the constitutionality of those provisions.

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________ NO. 98-4045 __________________
PETER D. JUNGER, Plaintiff-Appellant, v. WILLIAM M. DALEY, SECRETARY OF COMMERCE, et al., Defendants-Appellees.

__________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO __________________
PROOF BRIEF FOR THE APPELLEES __________________

STATEMENT OF JURISDICTION

1. This is a suit for declaratory and injunctive relief based on claims arising under the federal Constitution. The jurisdiction of the district court was asserted under 28 U.S.C. § 1331.

2. The judgment under appeal is the final judgment of the district court. The order is within the appellate jurisdiction of this Court under 28 U.S.C. § 1291.

3. The judgment of the district court was entered on July 2, 1998. The notice of appeal was filed on August 27, 1998, within the time permitted by Rule 4(a)(1) of the Federal Rules of Appellate Procedure.

STATEMENT OF ISSUES

The Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774, control the export of "dual use" products, including encryption products, that have military as well as civilian uses. The issue presented is whether the EAR's controls on the export of encryption products violate the First Amendment as applied to the export of encryption software in source code form.

STATEMENT OF THE CASE

The Department of Commerce is responsible for administering the Export Administration Regulations (EAR), which control the export of "dual use" items that can be used for military as well as civilian purposes. As part of this responsibility, the Department has been directed by the President of the United States to control the export of encryption products. The President has determined that the uncontrolled export of encryption products can jeopardize this country's foreign policy and national security interests and can threaten the safety of American citizens here and abroad. The EAR does not prohibit the export of encryption products altogether, but rather establishes a licensing system that permits the Department of Commerce to review the potential foreign policy and national security consequences that could result if particular encryption products were exported to specific destinations or for particular uses.

This case presents a challenge to the constitutionality of the EAR's encryption export controls. Plaintiff-appellant Peter Junger is a law professor who wishes to engage in unrestricted distribution of encryption software in source code form via the Internet. Because software on the Internet can be accessed from any country in the world, the posting of encryption software on the Internet can constitute an export and ordinarily requires a license under the EAR.

Junger brought this suit to enjoin the Department of Commerce from enforcing the EAR's encryption export controls against him. Junger claims that the application of the EAR's encryption export controls to encryption software in the form of source code violates the First Amendment. Junger asserts a constitutional right to engage in the unrestricted and unreviewed export of encryption software in source code form, regardless of how strong the software is, who will receive and use the software, and what harm the use of the software abroad could cause to this country's national security and foreign policy interests.

On July 2, 1998, the district court entered summary judgment in favor of the government, holding; that the EAR's encryption export controls do not violate the First Amendment. The district court held that the encryption export controls are constitutionally permissible content-neutral regulations and that they do not amount to a facially invalid prior restraint. Junger appeals from that judgment.

STATEMENT OF FACTS

I. Regulatory Background

> A. Cryptography and Encryption

1. The national security of the United States depends in part on the ability of the government to obtain timely information about the activities and plans of potentially hostile foreign governments, groups, and individuals abroad. (R. 63 McNamara Dec. ¶ 4, Apx. _.) The United States therefore uses a variety of means to monitor and intercept communications by foreign intelligence targets. Among other things, the United States engages in signals intelligence (SIGINT), the collection and analysis of information from foreign electromagnetic signals. (Id. ¶¶ 3-4, Apx. _.) Primary responsibility for the government's SIGINT activities belongs to the National Security Agency (NSA), a component of the Department of Defense. (Id. ¶ 3, Apx. _.)

The SIGINT capabilities of the United States can be significantly compromised by the use of encryption by foreign intelligence targets. (R. 63 McNamara Dec. ¶ 5, Apx. _) (NSA Deputy Director). Encryption is the process of converting a message from its original form (commonly known as "plaintext") into a scrambled form (known as "ciphertext"). (R. 87 Stip. ¶ 1, Apx. _.) Encryption has long been a tool in the conduct of military and foreign affairs. (R. 63 McNamara Dec. ¶ 5, Apx. _; R. 11 Lowell Dec. ¶ 4, Apx. .) Today, foreign intelligence targets use encryption in an effort to maintain the secrecy of their communications. (R. 63 McNamara Dec. ¶ 5, Apx. _.) For this reason, one of the NSA's principal SIGINT activities is cryptanalysis, the science of converting ciphertext into plaintext without having access to the "key" used to encrypt the message. (Ibid.; R. 87 Stip. ¶ 4, Apx. _.)

Until the end of the Second World War, encryption was ordinarily performed by mechanical devices, such as the "Enigma" machines used by Nazi Germany. (R. 93 Opinion p. 4, Apx. _.) Since then, mechanical encryption devices have been largely replaced with electronic ones. (Id. at 5, Apx. .) Today, messages can be encrypted electronically through the use of dedicated hardware. (Ibid.) In addition, encryption now can be performed by general-purpose computers, including "desktop" computers of the sort in common use here and abroad. (Ibid.; R. 87 Stip. ¶ 5, Apx. _.)

2. In order for a general-purpose computer to encrypt data, it must use encryption software that makes the computer's circuitry carry out the encoding process. Because the constitutional claim presented in this appeal focuses on encryption software, as distinct from encryption hardware, a short discussion of software is required before we turn to the regulations at issue.

Software consists of a set of specific instructions to a computer that tell the computer's hardware to perform particular tasks. (R. 87 Stip. ¶ 8, Apx. ); see, e.g., Bateman v. Mnemonic, Inc., 79 F.3d 1532, 1537 n.11 (11th Cir. 1996). The instructions that make up a software program may take the form of "object code" or "source code." (R. 87 Stip. ¶ 8, Apx. _.)

Object code, sometimes also referred to as "executable code," represents computer instructions as a sequence of binary digits (0s and 1s) that can be executed directly by the computer's microprocessor. (R. 87 Stip. ¶ 10, Apx. _.) "When a software product incorporating [object] code is plugged into a computer, the computer is instantly given the brainpower, as it were, to perform the tasks the software was designed to enable it to perform." Comshare, Inc. v. United States, 27 F.3d 1142, 1143 (6th Cir. 1994).

Source code represents the same computer instructions in "specialized alphanumeric [programming] languages" such as BASIC, C, or Java. Sega Enterprises, Ltd. v. Accolade. Inc., 977 F.2d 1510, 1514 n.2 (9th Cir. 1993); see R. 63 McNamara Dec. ¶ 9 and Tab 13, Apx. _ (encryption source code). Source code may be converted automatically into object code through the use of readily available "compiler" software. (R. 87 Stip. ¶ 11, Apx. _; R. 63 McNamara Dec. ¶ 9, Apx. _.) When "compiled" in this fashion, source code can be used to control the operation of a computer -- in the case of encryption source code, by making the computer encrypt data. (R. 87 Stip. ¶ 14, Apx. _; R. 63 McNamara Dec. ¶ 9, Apx. _.) Source code can be understood by persons, such as computer scientists and mathematicians, who are trained in the particular programming language in which the source code is written (R. 87 Stip. ¶ 13, Apx. _), but it is not necessary for an end user to read or understand source code in order to compile and use it to control the operation of a computer.

> B. The EAR Encryption Export Controls

The United States imposes controls on the export of a wide variety of products whose use abroad could compromise this country's national security, foreign policy, and law enforcement interests. Because encryption can be used, among other things, to deny the United States access to vital foreign intelligence information, encryption products have long been included in these export restrictions.

Until 1996, primary regulatory responsibility over the export of encryption products was vested in the Department of State, which administers the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130. (See R. 63 Reinsch Dec. ¶ 3, Apx. _.) In November 1996, President Clinton issued an Executive Order and Presidential memorandum transferring regulatory authority over the export of most encryption products from the Department of State to the Department of Commerce, which is responsible for administering the Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774. See Executive Order 13206, 61 Fed. Reg. 58,767 (Nov. 19, 1996); 32 Weekly Comp. Pres. Doc. 2397 (Nov. IS, 1996) (memorandum). This litigation involves encryption export provisions added to the EAR pursuant to the President's Executive Order and memorandum. We first summarize the general structure of the EAR, then describe the specific provisions at issue in this case.

1. The principal purpose of the EAR is to regulate the export of "dual use items -- items that can be used both for military and for civilian purposes. See 15 C.F.R. 6 730.3; see also id. Part 772 (definition of "dual use"). Broadly speaking, and with various exceptions (see id. Part 740), the EAR prohibits the export of dual use items to specified foreign destinations without a license from the Department of Commerce's Bureau of Export Administration (BXA). See id. § 736.2(b)(1).

For present purposes, the heart of the EAR's regulatory scheme is the Commerce Control List (CCL). See 15 C.F.R. 774 Supplement No. 1. The Commerce Control List establishes ten general categories of controlled items, such as nuclear materials (Category 0), computers (Category 4), telecommunications and information security items (Category 5), and lasers and sensors (Category 6). Each of these general categories encompasses "commodities," "software," and "technology." A "commodity" is any item other than software or technology. See 15 C.F.R. Part 772 (definition of "commodity"). "Software" is defined in its conventional sense. See ibid. (definitions of "software" and "program"). "Technology" is defined as specific information necessary for the 'development,' 'production,' or 'use' of a product," including technical data (such as blueprints and diagrams) and technical assistance (such as instruction and consulting services). Ibid.

Every item on the Commerce Control List is assigned an Export Control Classification Number (ECCN). See generally 15 C.F.R. § 738.2(d)(1)-(2). An item's ECCN specifies (among other things) the particular reasons, such as national security or anti-terrorism, why the government controls the export of the item. see id. § 738.2(d)(2)(i). The reasons for control affect the nature and scope of the export controls that apply to the item. see id. §§ 738.4(a), 742.2-742.16.

Certain items are not "subject to the EAR," a term of art meaning that they are not within the regulatory jurisdiction of the BXA and may be exported without regard to the EAR's export controls, even if they otherwise would be covered by the Commerce Control List. See 15 C.F.R. §§ 734.1(a), 734.2(a), 734.3(b). Among other things, printed materials such as newspapers, books, and periodicals are not subject to the EAR, regardless of their subject matter or contents. See id. § 734.3(b)(2). In addition, "publicly available" software and technology generally are not subject to the EAR. Id. § 734.3(b)(3), 734.7-734.10; see also id. Part 772 (definition of "publicly available technology and software"). In contrast, items other than software and technology (i e, "commodities") remain subject to the EAR even when they are publicly available.

2. In December 1996, the Department of Commerce amended the EAR to include the encryption items transferred by the President from the regulatory jurisdiction of the Department of State. See 61 Fed. Reg.68,572 (Dec.30, 1996); see also 63 Fed. Reg;.72,156 (Dec.31,1998) (amendments). As amended, the Commerce Control List includes encryption commodities (e.g., circuitry and other hardware), encryption software, and encryption technology. See 15 C.F.R. Part 774 Supplement No. 1 (CCL), ECCN 5A002 (commodities), 5D002 (software), 5E002 (technology); R. 63 Reinsch Dec. ¶ 5, Apx. _.

In his Executive Order and memorandum, the President prescribed the basic policies governing the EAR's export controls on encryption items. The President determined that "[e]ncryption products, when used outside the United States, can jeopardize our foreign policy and national security interests" and can "threaten the safety of U.S. citizens here and abroad * * * ." 32 Weekly Comp. Pres. Doc. 2397; see 15 C.F.R. § 742.15. The President therefore directed that applications for licenses to export encryption products be reviewed by the Department of Commerce, in conjunction with other agencies, "to ensure that export * * * would be consistent with U.S. foreign policy and national security interests." 32 Weekly Comp. Pres. Doc. 2398.

Generally speaking, a license is required under the EAR to export encryption items to all foreign destinations other than Canada. See 15 C.F.R. §§ 736.1(b)(1), 742.15(a). Certain encryption items whose export poses fewer risks to national security and foreign policy are eligible for liberalized licensing requirements. See 15 C.F.R. §§ 740.8, 740.17, 742.15(b)(2)-(7); R. 63 McNamara Dec.¶ 12, Apx. _. License applications for all other encryption items are subject to case-by-case review "to determine whether the export * * * is consistent with U.S. national security and foreign policy interests." Id. §§ 742.15(b), 742.15(b)(8)-(9).

3. In transferring regulatory jurisdiction from the Department of State to the Department of Commerce, the President specifically addressed the regulatory status of encryption software. The President determined that "the export of encryption software, like the export of other encryption products * * *, must be controlled because of such software's functional capacity" to encrypt data, "rather than because of any possible informational value of such software * * * ." 61 Fed. Reg. 58,768. The President determined that these considerations apply not only to encryption software in the form of object code, but also to encryption source code, since "encryption source code can easily and mechanically be transformed into object code." Ibid.; see p. 7 supra. The President therefore directed that all encryption software, whether in the form of source code or object code, be subject to the same export controls as encryption hardware. Ibid.; 32 Weekly Comp. Pres. Doc. at 2398. In accordance with the President's directive, the EAR's export controls expressly treat encryption software like encryption hardware. See 15 C.F.R. Part 774 Supplement No. 1, ECCN 5D002 ("for export licensing purposes, encryption software is treated under the EAR in the same manner as a[n] [encryption] commodity"); see also id. § 742.15.

In order to provide equivalent regulatory treatment for encryption software and encryption hardware, the EAR treats encryption software differently in certain respects from other kinds of software on the Commerce Control List. In particular, while "publicly available" software generally is not subject to the EAR (see p. 10 supra), encryption software remains subject to the EAR even when it is publicly available, just as encryption hardware does. See 15 C.F.R. § 732.2(b), 734.3(b)(3). However, the "publicly available" exclusion remains applicable to encryption "technology" (information used to develop, produce, or use encryption products), and publicly available encryption technology therefore may be exported without having to meet any of the EAR's licensing requirements. In addition, the EAR's exclusion for books, periodicals, and other published materials (see p. 10 supra) remains fully applicable to publications concerning encryption. As a result, the EAR imposes no restrictions on the export of books, periodicals, and similar widely available printed materials on the subject of encryption, even if a publication contains printed listings of source code for encryption programs. See 15 C.F.R. § 734.3(b)(3) Note ("A printed book or other printed material setting forth encryption source code is not itself subject to the EAR").

4. For purposes of the EAR, software is "exported" when it is shipped or transmitted outside the United States. 15 C.F.R. § 734.2(b)(1). Encryption software is considered to be transmitted outside the United States when, inter alia, it is "ma[de] * * * available for transfer outside the United States" over communications facilities accessible from abroad, including the World Wide Web, unless adequate precautions are taken to prevent unauthorized foreign access. Id. § 734.2(b)(9)(ii); see R. 63 McNamara Dec. ¶ 19, Apx. _; R. 63 Reinsch Dec. ¶ 20, Apx. _. Accordingly, posting an encryption software program on a World Wide Web site with unrestricted foreign access constitutes export of the software and is subject to the EAR's encryption export licensing requirements.

II. The Present Litigation

> A. Junger's Claims

Peter Junger is professor of law who teaches a course on computers and the law. In connection with his course, Junger wishes to post encryption software in source code form on a World Wide Web site that he maintains. (R. 87 Stip. 11 30, Apx. _.) As explained above, the posting of encryption software on the Internet constitutes an export unless foreign access to the Web site is restricted (see 15 C.F.R. 6 734.2(b)(9)(ii)). Junger also wishes to export encryption software by other means. (R. 87 Stip. 11 30, Apx. _.)

Junger brought suit against the government in the District Court for the Northern District of Ohio, seeking declaratory and injunctive relief that would permit him, inter alia, to engage in unrestricted distribution of encryption software through his World Wide Web site. For present purposes, Junger's suit involves two distinct but related First Amendment claims. First, Junger claims that the application of the EAR's export controls to the export of encryption source code constitutes an impermissible "content-based" regulation of speech. Second, Junger claims that the application of the export controls to encryption source code constitutes a facially invalid prior restraint on speech. The "speech" underlying both claims is the encryption source code itself, rather than the communications that can be encrypted by using encryption software.1

_________________

> 1 The amici advance an additional, and fundamentally different, First Amendment claim: the claim that the EAR's encryption export controls "chill private electronic communications" and thereby infringe on the First Amendment rights of persons who wish to use encryption products. Brief of Amici Electronic Privacy Information Center et al. (EPIC Br.) 29-35. Unlike Junger's First Amendment claims, which focus on the "speech" allegedly embodied in encryption source code itself, the amici's claim is based on the communications that are subject to encryption. The amici's claim therefore implicate not only the export controls on encryption source code, but also the export controls on encryption object code and encryption hardware. The amici's claim is without merit, but because Junger himself has not raised it and is not claiming that the EAR impairs his own ability to encrypt his communications, we need not address it farther here.

During; the pendency of the suit, Junger submitted several "classification requests" to BXA. (R. 87 Stip. ST 27-35, Apx. ; R. 63 Reinsch Dec. FIT 10-17, Apx. _.) A classification request is a request for guidance from BXA regarding the regulatory requirements applicable to a particular item -- in particular, "whether or not [the] item is subject to the EAR and, if applicable, the appropriate ECCN." 15 C.F.R. § 748.3(a); see R. 63 Reinsch Dec. ¶ 10, Apx. . In response to Junger's classification requests, BXA advised Junger, inter alia, that certain software programs that he wishes to export are encryption programs covered by ECCN 5D002 and therefore are subject to the EAR's encryption export licensing requirements; that certain other software programs and related materials that he wishes to export are not covered by ECCN 5D002 and may be distributed on the Internet without a license; and that he does not need a license to export the first chapter of his book on "Computers and the Law." (R. 87 Stip. ¶¶ 29-35, Apx. ; R 63 Reinsch Dec. ¶¶ 11-17, Apx. _; R. 63 McNamara Dec. ¶¶ 13-16, Apx. _.)

A classification request is not a license application. (See R. 63 Reinsch Dec. ¶ 10, Apx. _.) Junger has never applied for a license to export any encryption software. Accordingly, the government has not been called on to decide whether (or under what conditions) Junger should be granted a license, nor has the government ever denied him a license.

> B. The District Court's Decision

On July 2 1998. the district court issued an opinion and order rejecting Junger's constitutional claims and granting summary judgment in favor of the government. The district court held, inter alia, that the EAR's encryption export controls constitute permissible content-neutral regulations, rather than impermissible content-based ones, and that they are not subject to facial invalidation on prior restraint grounds. (R. 93 Opinion pp. 17-20, 22-29, Apx. _.)2

_______________

> 2 Junger also presented several other constitutional claims, all of which were rejected by the district court. (See R. 75 Supp. and Amended Complaint ¶¶ 60-85, Apx. _; R. 93 Opinion pp. 2-3, 20-22, 29-31, Apx. _.) Junger has abandoned those claims on appeal.

At the outset of its opinion, the district court addressed the question whether the export of encryption source code is sufficiently expressive to warrant First Amendment protection. (R. 93 Opinion pp. 12-17, Apx. _.) The Court noted that encryption software has the functional capacity to make computers encrypt data, and this functional capability inheres in encryption source code as well as encryption object code. (Id. at 13-15, Apx. _.) The court acknowledged that encryption source code also "may communicate ideas," because persons versed in computer programming can read and write source code, and persons like Lunger "can reveal source code to exchange information and ideas about cryptography." (Id. at 15-16, Apx. _.) However, the court reasoned that encryption source code typically is exported for the functional purpose of performing encryption, rather than the communicative purpose of conveying ideas about cryptography, and that exporting source code therefore is not a "sufficiently communicative" activity to be "protected conduct under the First Amendment." (Id. at 13, 17, Apx. _.)

Having held that exporting encryption source code is not protected by the First Amendment. the district court could have concluded its constitutional analysis, since Junger's First Amendment claims presuppose that the export of encryption software is protected in some fashion by the First Amendment. Nevertheless, the court chose not to rest its decision on that ground alone. Instead, the court went on to address and reject both of Junger's First Amendment claims on their own terms. (R. 93 Opinion pp. 17-20, 22-29, Apx. _.) The court held that the EAR's encryption export controls do not constitute an impermissible content-based speech restriction because they are based on "the technical capacity [of encryption software] to encrypt data," not on any views [encryption source code] may express." (R. 93 Opinion p. 24, Apx. _.) The court further held that the export controls are not subject to a facial challenge on prior restraint grounds because the licensing requirements "are not directed narrowly at expressive conduct," but rather apply to "all types of devices that have the capacity to encrypt data, whether software or hardware." (R. 93 Opinion p. 20, Apx. _.)

STANDARD OF REVIEW

A district court order granting a motion for summary judgment is subject to de novo review. See, e.g., Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999).

SUMMARY OF ARGUMENT

The President has directed the Department of Commerce to control the export of encryption products in order to protect important national security and foreign policy interests. The district court correctly held that the First Amendment does not require the government to exempt encryption software in the form of source code from these export controls.

1. Junger argues that the application of EAR's export controls to encryption source code amounts to an impermissible "content-based" regulation of speech regarding cryptography. But the EAR's encryption export controls are manifestly content-neutral, not content-based. They are directed not at the publication of cryptographic information, as Junger suggests, but rather at the export of encryption products. The export of encryption source code is controlled for the same reason that the government controls the export of other encryption products -- because it can be used to make computers encrypt data and thereby maintain the secrecy of information. While it is possible to use encryption source code to represent and convey cryptographic ideas, the EAR's export controls are not applied to encryption source code in order to suppress information or speech about cryptography, but rather to regulate the non-communicative risks created by the uncontrolled export of encryption software. The EAR is not designed to prevent -- and the record makes clear that it does not have the effect of preventing -- free public discussion and exchange of information and ideas about cryptography. The district court therefore was correct in holding that the application of the EAR's export controls to encryption source code is subject only to intermediate scrutiny, rather than strict scrutiny, under the First Amendment. And Junger does not challenge the district court's conclusion that the export controls satisfy the requirements of intermediate scrutiny.

2. Junger also argues that the EAR's controls on the export of encryption source code constitute a facially invalid prior restraint. The district court correctly held that the export controls are not subject to a facial challenge under the prior restraint doctrine. When the government creates licensing schemes that are designed to control the flow of information and ideas, or that single out speech or expressive activities for special burdens, the risks to First Amendment interests are great enough that courts permit such schemes to be challenged on their face, rather than requiring a plaintiff to demonstrate that the license was applied to him in a constitutionally impermissible fashion. But when the government instead operates a general licensing system like the EAR that encompasses a wide range of non-expressive as well as expressive activities, and that is not designed to suppress information or ideas, the risks to First Amendment interests are substantially smaller, and a plaintiff must demonstrate that the licensing; system has actually been applied to him in a constitutionally impermissible manner. Because Junger has never applied for an export license, much less been denied one, he cannot make (and does not attempt to make) such a showing here.

ARGUMENT

THE EAR'S CONTROLS ON THE EXPORT OF ENCRYPTION
SOURCE CODE DO NOT VIOLATE THE FIRST AMENDMENT

I. Introduction

A. The regulations at issue in this case are designed to control the export of products that are capable of "maintain[ing] the secrecy of information, and thereby may be used by persons abroad to harm national security, foreign policy and law enforcement interests." 15 C.F.R. § 742.15. Junger claims that the application of these export controls to encryption software in the form of source code violates the First Amendment. In order to place Junger's claim in the appropriate First Amendment context, four basic features of this regulatory scheme must be kept in mind.

First, it is undisputed that encryption source code can be used to make computers encrypt data. To say this is not to deny that encryption source code also has the capability of reflecting and conveying information and ideas about cryptography. But source code for encryption software can be compiled and used to make computers encrypt data regardless of whether the source code is convey cryptographic information and ideas, and regardless of whether the person who receives the source code understands -- or is even capable of understanding -- whatever cryptographic information it may embody.

Second. the EAR controls the export of encryption source code solely because of its non-communicative capacity to control the operation of computers, not because of its potential capacity to convey information and ideas about cryptography. Under the terms of the EAR, it is immaterial what ideas (if any) may be embodied or conveyed by particular encryption source code. The regulatory status of software under the EAR's encryption provisions turns entirely on what the software does, not on what information its source code might be capable of conveying.

Third, while Junger repeatedly asserts that the government is regulating "the publication of encryption source code," what the EAR actually controls is the export of encryption products. The EAR's encryption provisions encompass all products that have the capability of performing encryption, not just encryption source code, and the applicability of the EAR's licensing requirements to these products turns on whether they are being exported, not whether they are being "published. " The EAR treats the export of encryption source code just like the export of encryption object code and encryption hardware, which do not have any meaningful capacity to convey cryptographic information but which -- like encryption source code -- can be used by foreign intelligence targets to encrypt their communications. The EAR's export licensing requirements thus are not targeted at "expression" about cryptography, but instead are directed at products that are capable of performing encryption.

Fourth, while the EAR controls the export of encryption products, the EAR does not attempt to control the public exchange of information and ideas about cryptography, either here or abroad. To the contrary, the terms of the EAR -- in particular, the EAR's treatment of publicly available encryption technology and printed publications -- reflect a considered effort to control the export of encryption products without impeding open public discussion and debate about the subject of cryptography. As a consequence, discussion and debate about cryptography are flourishing -- and take place without the need for a license from the federal government. R. 87 Stip. ¶¶ 18-21, Apx. _; see pp. 50-51 infra.

Junger's own academic activities illustrate this final point. (See R. 63 Reinsch Dec. ¶ 18, Apx. _.) Lunger does not need a license under the EAR to engage in public discussion and instruction about cryptography in the classroom or in academic conferences, either here or abroad (15 C.F.R. §§ 734.3(b)(3), 734.7(a)(4), 734.9). He does not need a license to distribute copies of his encryption programs to his students or anyone else in the United States, other than an agent of a foreign government (id. § 734.2(b)(9)(i)(B)).3 He does not need a license to distribute his ideas about cryptography abroad in books, journals, or other printed publications, even if source code for encryption programs is reproduced in such publications (id. §§ 734.3(b)(2), 734.3(b)(3), 734.7). And despite his insistence that the EAR's encryption export controls require him to obtain a license in order to distribute encryption source code on the Internet, he is free to distribute encryption source code over the Internet by any means that do not "make such software available for transfer outside the United States" (id. 934.2(b)(9)(ii)) [as written, probably § 734] -- for example, by using electronic mail to send source code files to his students and other domestic recipients. (See R. 63 Reinsch Dec. ¶ 19, Apx. _.)

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> 3 The EAR generally treats the release of source code to a foreign national as an "export," even when the release takes place within the United States. 15 C.F.R. § 734.2(b)(2)(ii). This "deemed export" rule does not, however, apply to encryption software. See id. §§ 734.2(b)(2), 734.2(b)(9)(i)(B).

When these basic features of the EAR's encryption export controls are kept in mind, it becomes clear that Junger has chosen highly inhospitable terrain for his First Amendment challenge. Junger cannot (and does not) argue that the government is controlling the export of encryption source code for the purpose of preventing public discussion of ideas and information about cryptography, either here or abroad. Nor can he seriously argue that the EAR's encryption export controls have the effect of preventing academic (or other public) exchanges of cryptographic information, either as a general matter or as applied to Junger himself. The most that can be said is that, in the course of regulating the impact of encryption products on America's foreign intelligence-gathering capabilities, the EAR's export controls may place an incidental burden on the expressive use of encryption source code in particular instances. As we discuss in detail below, this kind of incidental burden, incurred in the pursuit of important governmental interests unrelated to the suppression of speech, does not offend the First Amendment.

B. Junger devotes the principal part of his brief (pp. 23-49) to the argument that encryption source code is a form of expression and that the export of encryption source code is therefore entitled to First Amendment protection. We address this argument in detail below. At the outset, however, we wish to be clear about the relationship between this argument and Junger's underlying First Amendment claims.

The government does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography, and that encryption source code can be used by programmers and scholars for such informational purposes. Moreover, the Court may assume that Lunger himself wishes to post encryption source code on the Internet for, inter alia, the academic purpose of conveying cryptographic information and ideas.

However, the fact that encryption source code is capable of being used to convey information and ideas about cryptography does am mean that the government is therefore disabled from regulating the export of encryption source code, nor does it mean that the EAR's controls on the export of encryption source code are subject to strict scrutiny under the First Amendment, as Junger contends. It is common for the government to regulate activities that may (or may not) be undertaken for communicative purposes, but that cause non-communicative harms wholly apart from their possible communicative purpose or effect. When a government regulation is "aimed at the non-communicative impact of the conduct," rather than being "motivated by a governmental intent to suppress ideas or information," it is subject to intermediate scrutiny under the First Amendment, not strict scrutiny -- even when it is applied to a person who wishes to engage in the conduct for communicative purposes. Ater v. Armstrong, 961 F.2d 1224, 1228 (6th Cir.), cert. denied, 506 U.S. 985 (1992).

We discuss the First Amendment distinction between intermediate scrutiny and strict scrutiny, and the application of that distinction to the EAR's encryption export controls, in the pages that follow. What we wish to stress at the outset is that Junger's lengthy argument about the expressive potential of encryption source code "only begins the 'First Amendment' inquiry," rather than ends it. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 ( 1984). To say that encryption source code is "entitled to the protections of the First Amendment" (Junger Br. 25) is to say only that the application of the EAR to the export of encryption source code may be subject to some form of First Amendment review in some instances -- not to say that the export controls are constitutionally suspect, much less that they are actually unconstitutional.

II. The EAR's Export Controls Satisfy Intermediate Scrutiny

A. Junger asserts that the First Amendment entitles him to engage in unrestricted and unreviewed export of software, in source code form, that can be used by intelligence targets to electronically shield their communications and activities from this Nation's foreign intelligence-gathering capabilities. Junger's First Amendment claim is a novel one. The constitutional principles that govern it, however, are not. The constitutionality of the EAR's encryption export controls rests on a basic and well-settled First Amendment distinction: the distinction between laws that seek to restrict speech or other forms of expression because of the information or ideas that they convey, and laws that place incidental burdens on speech or expressive acts for reasons that are unrelated to the potential informational or communicative value of the regulated activity.4

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> 4 Given the foreign locus of the EAR's encryption export controls and the national security concerns that underlie them, the First Amendment may not apply with its ordinary force in this case, but the Court need not resolve that question in order to decide this case. See Haig v. Agee, 453 U.S. 280, 308 (1981) (declining to decide whether "First Amendment protections reach beyond our national boundaries").

When the government seeks to "suppress, disadvantage, or impose differential burdens on speech because of its content," the First Amendment ordinarily subjects such efforts to strict scrutiny. Turner Broadcasting System. Inc. v. FCC, 512 U.S. 622, 642 (1994). In contrast, "regulations that are unrelated to the content of speech" are subject to less demanding First Amendment scrutiny, because they ordinarily "pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue." Ibid. Laws that restrict speech and expressive activities because of the information and ideas that they convey are often referred to as "content-based" laws, while laws whose restrictions are not tied to the informational or communicative effects of the regulated activity are referred to as "content-neutral" laws. See, e.g., Connection Distributing Co. v. Reno, 154 F.3d 281, 290 (6th Cir. 1998), petition for cert. filed,67 U.S.L.W. 3484 (Jan. 19, 1999) (No. 98-1156); Richland Bookmart. Inc. v. Nichols, 137 F.3d 435, 438 (6th Cir. 1998); Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1250-52 (6th Cir. 1997). Determining whether a challenged law is content-based or content-neutral is "[t]he normal starting point for a discussion of the facial validity of statutory regulation[s] of speech" (Richland Bookmart, 137 F.3d at 438), "because that determination will decide the level of [First Amendment] scrutiny" (Connection Distributing, 154 F.3d at 290).

"Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (emphasis in original; citations and internal quotations omitted); Connection Distributing, 154 F.3d at 290. The "controlling consideration" is " [t]he government's purpose" in imposing the restriction. Ibid. As this Court has explained, "[t]he central inquiry with respect to content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message it conveys or because of a desire to suppress information." Ater, 961 F.2d at 1227 (citation and internal quotations omitted). If the regulation is not designed "to suppress ideas or information," but instead "is aimed at the non-communicative impact" of the regulated activity, it is content-neutral for First Amendment purposes. Id. at 1228.

Content-neutral laws are subject to a less demanding standard of First Amendment review than content-based laws, a standard commonly referred to as "intermediate scrutiny." See, e.g., Connection Distributing, 154 F.3d at 291. A law satisfies intermediate scrutiny "if'it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."' Turner, 512 U.S. at 662 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)); Michigan State AFL-CIO, 103 F.3d at 1250. "To satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government's interests. Rather, the requirement of narrow tailoring is satisfied so long as the * * * regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Turner, 512 U.S. at 662 (emphasis added; internal quotations omitted). For purposes of intermediate scrutiny, a regulation is narrowly tailored as long as "the means chosen do not burden substantially more speech than is necessary to further the government's legitimate interests" (ibid.) and the regulation "leave[s] open ample alternative channels for communication of the information." Turner, 512 U.S. at 662; Ward 491 U.S. at 791; Connection Distributing, 154 F.3d at 292-93.

Some cases employing this intermediate standard of review, such as O'Brien, involve conduct that is ordinarily not undertaken for communicative purposes, but that can be employed to express and communicate ideas in particular instances. However, the applicable level of First Amendment scrutiny does not depend on whether the regulated activity is characterised as "conduct" or as "speech." Instead, as this Court has explained, "the real issue is whether the law is aimed at the communicative impact" of the regulated activity. Michigan State AFL-CIO, 103 F.3d at 1252; Blount v. SEC, 61 F.3d 938, 942 & n.2 (D.C. Cir. 1995), cert. denied, 517 U.S. 1119 (1996) (motive-based First Amendment inquiry "has come to replace the distinction between speech and conduct regulations"); HBO v. FCC, 567 F.2d 9, 47-48 (D.C. Cir.) (per curiam), cert. denied, 434 U.S. 829 (1977). If the law is not "aimed at the communicative impact" of the activity, intermediate scrutiny applies, even if the activity is characterised (in general or in the particular instance) as speech rather than conduct. Michigan State AFL-CIO, 103 F.3d at 1251 ("the non-expressive aspects of speech may be regulated so long as the legislative goal is not to stifle speech itself") (emphasis added); see, e.g., Turner, 512 U.S. at 641-61 (applying intermediate scrutiny to cable television programming regulations); Ward, 491 U.S. at 790-803 (applying; intermediate scrutiny to regulations restricting volume of music played in outdoors concerts).

B. Junger argues that the EAR's controls on the export of encryption source code are content-based, rather than content-neutral, and therefore should be subjected to strict scrutiny. The district court correctly rejected that argument. (R. 93 Opinion pp. 22-29, Apx. .) As noted above, "[t]he central inquiry with respect to content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message it conveys or because of a desire to suppress information." Ater, 961 F.2d at 1227 (citation and internal quotations omitted). Here, it is manifest that the EAR's export controls are not designed "to suppress ideas or information," but instead are aimed solely "at the non-communicative impact" of the regulated activity (id. at 1228) -- activity that in many cases is entirely non-expressive.

1. The President has determined that the use of encryption products outside the United States "can jeopardise our foreign policy and national security interests" and can "threaten the safety of U.S. citizens here and abroad * * * ." 32 Weekly Comp. Pres. Doc. 2397 (Nov. 15, 1996). Encryption products are subject to export controls in order to protect the United States against these harms. The government's object in controlling the export of encryption products is to minimize the risk that foreign intelligence targets will obstruct our intelligence-gathering capabilities, and thereby compromise our national security and foreign policy interests, by using encryption products exported from this country.

The export of encryption software, including encryption source code, presents the same risks as the export of other kinds of encryption products, and is subject to the regulatory jurisdiction of the Department of Commerce for the same reasons. The President directed the Department of Commerce to control the export of encryption software "because of such software's functional capacity" to enable computers to encrypt data, a capacity that encryption software shares with encryption hardware, "rather than because of any possible informational value of such software." 61 Fed. Reg. 58,768 (Nov. 19, 1996); see R. 63 McNamara Dec. ¶ 22, Apx. _. Encryption source code in electronic form shares this functional capacity. As explained by the Deputy Director of the NSA, "compiling source code into object code is a trivial task that can take a matter of seconds at the press of a keystroke" with commonly available compiler software. (R. 63 McNamara Dec. ¶ 9, Apx. _; see p. 7 supra). "Since a source code program can easily, readily, and quickly be turned into object code executable on a computer to encrypt information," there is "no meaningful distinction between the two for purposes of export controls." (Ibid.) Because encryption source code "can easily and mechanically be transformed into object code." it can be used to make computers encrypt data, and it is subject to export controls for that reason. 61 Fed. Reg. 58,768 (Nov. 19, 1996).

Junger argues at length that, while encryption source code can be used to make computers encrypt data, it also can be used to represent and express basic ideas and information about cryptography, and that people who have the requisite training, such as computer programmers and mathematicians, use encryption source code for such purposes. Junger Br. 23-49. Because encryption source code can be used to express cryptographic information and ideas, Junger takes issue with the district court's conclusion that the export of encryption source code is not a "sufficiently communicative" activity to be "protected conduct under the First Amendment." (R. 93 Opinion pp. 13, 17, Apx. _.)

Junger is correct that encryption source code is capable of being used to represent information and ideas about cryptography. Junger is also correct that the export of encryption software in source code form can (at least in principle) be undertaken to convey cryptographic information and ideas to persons who are able to read and understand such source code, although it also can be (and is) undertaken for entirely different, non-expressive purposes. Because the export of encryption source code may be undertaken for expressive purposes in particular instances, this Court may treat the export of encryption source code for such purposes as being within the ambit of the First Amendment, rather than as wholly unprotected conduct. Cf. Clark, 468 U.S. at 293 (assuming, without deciding, that sleeping in public park in connection with political demonstration "is expressive conduct protected to some extent by the First Amendment").5 To the extent that the district court suggested otherwise, it went further than it needed to go.

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> 5 In contrast, a party who exports encryption source code for non-expressive purposes -- for example, a software vendor who wishes to export encryption source code in order to compile and sell encryption software abroad -- could not assert that restrictions on the export of encryption source code impinge on its First Amendment rights.

However, for purposes of determining the appropriate framework for First Amendment review, the critical fact is not that the export of encryption source code can serve expressive purposes, but that encryption source code in electronic form has the entirely non-expressive capacity to control the operation of a computer, and the export of encryption source code is controlled because of that capacity. A computer program written in source code is, first and foremost, a sequence of instructions to a computer (see pp. 6-7 supra), and it is routinely written, distributed, and used for the wholly non-expressive purpose of making a computer carry out specified tasks here, the task of encrypting data. (See R. 63 McNamara Dec. ¶ 9, Apx. _ (encryption source code "sets forth, in precise detail, instructions which are directed to a computer's microprocessor that enable the computer to encrypt or decrypt information").) Encryption source code can be used by a recipient abroad to perform encryption whether or not the source code was originally written or distributed for expressive purposes. Moreover, because source code can be converted into object code by the computer itself (see p. 7 supra), a person who receives encryption source code in an electronic medium (such as a downloaded file or a computer diskette) can load the source code into his computer, convert it into object code, and execute the program without reading the source code and without understanding the sequence of computer instructions that it contains. The EAR's controls on the export of encryption source code thus do not depend, even indirectly, on the information or ideas that may be claimed to be embodied in the source code.

As the district court pointed out, source code in electronic form is fundamentally different in this respect from blueprints, recipes, and "how-to" materials. (R. 93 Opinion p. 15, Apx. _; see R. 63 McNamara Dec. ¶ 10, Apx. _.) A blueprint cannot be used to make a building unless a person reads and understands it; it cannot do anything; other than convey information to human beings. Similarly, a recipe cannot be used to make a casserole or a cake unless it is read by a person who understands the information it contains and who acts on the basis of that information. Source code. in contrast, can be used to control the operation of a computer without being read by, or otherwise conveying information to, the user. (See R. 63 McNamara Dec. ¶ 10, Apx. _.) Junger is therefore simply incorrect when he asserts that source code "is no more functional than plain language instruction[s] like recipes and instruction manuals" (Junger Br. 44).

The EAR controls the export of encryption source code because of this physical capability to control the operation of computers, not because of its potential communicative capacity to convey information and ideas about encryption to particular recipients. Because the export controls are "aimed at the non-communicative impact of the conduct" (i.e., the use of encryption by foreign intelligence targets), rather than at "suppress[ing] ideas or information" about encryption, the export controls are subject to intermediate scrutiny as content neutral regulations. Ater, 961 F.2d at 1228. Characterizing the export of encryption source code as expressive conduct, or even as "speech," does not affect that conclusion.

2. The structure of the EAR's encryption export provisions confirms that the EAR does not control the export of encryption source code "because of disagreement with the message it conveys." Ward, 491 U.S. at 791. As noted above, the EAR's export licensing requirements apply to all encryption products on the Commerce Control List. 15 U.S.C. § 742.15; see pp. 11-12 supra. The EAR draws no regulatory distinction between encryption source code, on the one hand, and encryption object code and encryption hardware, on the other. What encryption source code shares with encryption object code and encryption hardware is the functional ability to enable recipients to encrypt data -- not the capacity to convey information about cryptography, a capacity that object code and hardware effectively lack. The parity of treatment between encryption source code and other encryption products confirms that the EAR controls the export of encryption source code because of what it does, not because of what (if anything) it says.

At the same time the EAR does not attempt to restrict the free flow of public information and ideas about cryptography, either domestically or internationally. As explained above, encryption "technology" -- information that can be used in the design, production, and operation of encryption products -- is not subject to the EAR's export controls, and therefore may be freely exported without a license, as long as it is publicly available. Id. § 734.3(b)(3); see p. 13 supra. Encryption technology is "publicly available" if, inter alia, it is published or otherwise is generally accessible to the interested public in any form (id. § 734.7(a)); it is a product of fundamental research (id. § 734.8); or it is distributed through academic instruction (id. § 734.9). See p. 10 supra. Thus, the EAR does not require a license for persons to engage in public discussion and instruction about the subject of cryptography, nor does it require a license for the distribution of such information abroad. In addition, the EAR categorically excludes books, magazines, and similar widely distributed publications on all subjects, thereby giving carte blanche to the export of printed publications on cryptography. See id. § 734.3(b)(2). In short, the EAR goes out of its way to distinguish between the export of encryption products, which generally requires a license, and the public dissemination of cryptographic information, which does not. Such a regulatory scheme obviously is not the product of government hostility toward the subject of cryptography or the free exchange of ideas on that subject.

3. Junger does not contend that the EAR's export controls are based on a desire to suppress ideas or information about cryptography. Nevertheless, he contends that the export controls should be deemed content-based for First Amendment purposes because they treat encryption source code differently from source code for other kinds of software. Junger Br. 60-61.

This argument fails to come to terms with the basic structure of the EAR's encryption export controls. The point of the EAR's export controls is to regulate the export of products that can be used to perform encryption. Because encryption source code shares this functional capability, the regulations treat encryption source identically with all other encryption products. See 15 C.F.R. § 742.15; 61 Fed. Reg. 58,768 (Nov. 19, 1996). To the extent that the EAR treats encryption software differently from other software (for example, with respect to the treatment of "publicly available" software), it is solely because of the physical capacity of encryption software to make computers encrypt data, not because of any conceivable "disagreement with the message" (Ward, 491 U.S. at 791) that encryption source code may be claimed to convey. Because the regulatory treatment of encryption source code is based on its non-informational, physical capacity to control computers, rather than on the information about cryptography that encryption source code may be capable of conveying, the EAR's export controls remain content-neutral for First Amendment purposes.

This Court addressed and rejected an argument similar to Junger's in Michigan State AFL-CIO. In Michigan State AFL-CIO, labor unions presented a First Amendment challenge to a Michigan statute that required them to obtain consent from their members to use dues for political purposes but not for other purposes. 1243-44. The unions argued, inter alia, that the statute was content-based because it distinguished between the use of dues for political speech and the use of dues for other kinds of speech. The Court squarely rejected that argument:

> As for the claim that the statute's application only to political speech renders the provision content-based, it must be remembered that the focus is on whether the government has addressed a class of speech in order to suppress discussion of that topic. * * * As [the Supreme Court's decision in] Turner Broadcasting makes clear, the real issue is whether the law is aimed at the communicative impact of speech. We do not conclude that the law was content-based simply because it practically applied only to political speech[,] because such a conclusion does not necessarily address that fundamental issue. * * * The critical issue is whether the state's justification for the distinction is the 'content' of the speech itself or some other concern.

103 F.3d at 1252 (emphasis added; citations and internal quotations omitted).

The Court's reasoning in Michigan State AFL-CIO applies with equal, if not greater, force here. The EAR's encryption export controls are content neutral because they are not "aimed at the communicative impact" of encryption source code, but rather at the non-commmunicative capacity of encryption source code -- in common with other forms of encryption products -- to control the operation of computers. Cf Connection Distributing, 154 F.3d at 291.

By way of analogy, one can readily imagine a law imposing special restrictions on the export or domestic distribution of computer "virus" software because of the capacity of computer viruses to damage electronic data. Cf: 18 U.S.C. § 1030(a)(5)(A) (unlawful to "knowingly cause[] the transmission of a program * * * and [thereby] intentionally cause[] damage[,] without authorization, to a protected computer"). The fact that such a law treats computer virus software more restrictively than other software would hardly mean that, for First Amendment purposes, the law is a content-based regulation of "the subject of computer viruses" or "speech about viruses."

Junger also argues that the EAR's export controls are content-based because they "effectively foreclose" the use of the Internet for "discussions and publications" about cryptography that involve encryption source code. Junger Br. 61; see also id. at 46 (export controls "restrict any Internet publication or discourse that includes encryption source code"). As a factual matter, this argument considerably overstates the extent to which the EAR prevents the use of the Internet to discuss cryptography. As explained above, the EAR imposes no restrictions on the use of the Internet for the publication and public dissemination of encryption "technology" -- information that can be used to develop, produce, or use encryption products. See p. 13 supra; see also R. 87 Stip. ¶ 19, Apx. _. Moreover, encryption software (including source code) can be made available over the Internet without a license as long as it is distributed by means that do not make it accessible from abroad. One way of doing so is to configure a Web site to restrict foreign access, as vendors like Microsoft and Netscape have done in order to carry out domestic distribution of encryption software over the Internet. Encryption source code can also be transmitted electronically to domestic recipients by electronic mail. See p. 15 supra. It is thus not the case, as Junger claims, that "computer programmers and scientists cannot use the Internet to collaborate on encryption research projects" (Junger Br. 47), nor is it the case that the export regulations "effectively eliminate all communications on electronic media that describe or discuss cryptographic source code" (id. at 48).

The more basic weakness of Junger's argument, however, is legal rather than factual: the EAR's Internet export provisions do not discriminate between the "subject" of cryptography and other subjects, as Junger suggests, but rather between software that can perform encryption and software that cannot. The use of the Internet to distribute encryption software is controlled not only when the software takes the form of source code, but also when it takes the form of object code, which has no comparable ability to convey information and ideas about cryptography. 15 C.F.R. § 734.2(b)(9)(ii); see p. 14 supra. Because the EAR's Internet export provisions draw distinctions between products, rather than subjects, and because the distinctions are based solely on the non-informational capacity of the regulated products to control the operation of computers, they do not transform the encryption export controls into content-based regulations. And even if it is assumed, solely for the sake of argument, that the regulations have the incidental effect of impinging on the use of the Internet to discuss cryptography, the Supreme Court has held squarely that "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791.

Finally, Junger argues that the licensing review process allows the government to review the "content" of encryption source code and make licensing decisions based on that "content." Junger Br. 62. But to the extent that the government must examine the "content" of encryption source code in order to make export licensing decisions, the government does so solely to assess the physical capacity of the program to encrypt data -- not to gauge the communicative capacity of the source code to convey information and ideas about cryptography. (See R. 63 McNamara Dec. ¶ 22, Apx. _) (encryption software export licensing recommendations are based "solely on the basis of what [the software] does: namely, whether it can function to maintain the secrecy of information on a computer") (emphasis added).

C. The foregoing discussion demonstrates that the EAR's controls on the export of encryption software are subject to intermediate, rather than strict, First Amendment scrutiny. The district court concluded that the export controls satisfy the requirements of intermediate scrutiny. (R. 93 Opinion pp. 26-29, Apx. _.) Wisely, Junger does not challenge that conclusion.

The EAR's export controls plainly "further[] an important or substantial governmental interest" (Turner, 512 U.S. at 662). "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 at 307. Here, the government has a compelling interest in controlling the export of encryption products to hostile countries, organizations, and individuals whose use of such products abroad could jeopardize our national security and foreign policy.

As the Deputy Director of the NSA has explained, the use of encryption products by foreign intelligence targets "can have a debilitating effect on NSA's ability to collect and report * * * critical foreign intelligence." (R. 63 McNamara Dec. ¶ 5, Apx. _.) Absent the kind of licensing requirements contained in the EAR, domestic producers of encryption software could engage in the unrestricted export of their products to any person abroad for any reason, regardless of a particular encryption product's strength and its potential attractiveness to hostile interests abroad. Even if the person exporting the software does not intend or expect that the software will be used for purposes contrary to this country's national security and foreign policy interests, he ordinarily has no direct control over the use to which the software will be put once it has been exported, particularly if the software is made available for unrestricted distribution via the Internet.6

___________________

> 6 The value of controlling the export of encryption software and other encryption products is not negated by the mere fact that some encryption products are also available from foreign sources abroad. (R. 63 McNamara Dec. ¶ 18-19, Apx. _.) The President expressly determined that the uncontrolled export of encryption items "could harm national security and foreign policy interests even where comparable products are or appear to be available from sources outside the United States." 61 Fed. Reg. 58,767 (Nov. 19, 1996). The existing availability of particular encryption products abroad says nothing about how widely such products are used or how effective such products may be. Nor does it imply that this country's intelligence-gathering capabilities would be unimpaired by the uncontrolled export of all encryption software products, regardless of their strength and usefulness abroad. (See R. 63 McNamara Dec. ¶ 18, Apx. _.) Even if foreign availability were assumed to be relevant to the grant or denial of an individual export license, it is irrelevant to whether exports should be subject to a licensing requirement in the first instance.

In addition to being substantial, the interests served by the EAR's export controls are "unrelated to the suppression of free expression"' (Turner, 512 U.S. at 662). As shown above, the EAR controls the export of encryption software, including encryption source code, because of its capacity to make computers encrypt data, not because of any information or ideas about cryptography that it may be claimed to embody or convey. The EAR's controls are not designed to (and, as discussed below, do not) suppress the free exchange of ideas about cryptography, either among computer scientists or among members of the public.

Finally, the EAR's export controls are narrowly tailored. As noted above, the narrow tailoring requirement of intermediate scrutiny is satisfied if the government's interests "would be achieved less effectively absent the regulation." Turner, 512 U.S. at 662 (internal quotations omitted). That is obviously the case here. As explained above, encryption software on a computer diskette or similar electronic media can be converted from source code into object code at the press of a button, thereby enabling computers to scramble messages and other data. Elimination of export controls on encryption source code would permit the unrestricted export of encryption software to any person, organization, or country, without regard to the strength of the software, the identity of the recipients, or the uses to which they could be expected to put it. The detrimental impact on the national security and foreign policy interests identified by the President is obvious. It would not be feasible to abolish controls on the export of encryption software for "academic" purposes, because encryption software can be used to perform encryption, and thereby impede this country's intelligence-gathering capabilities, regardless of the reasons why it was exported. (See R. 63 Reinsch Dec. ¶ 21, Apx. _.) And Junger's suggestion that national security and foreign policy concerns are not implicated by the distribution of encryption software on the Internet (Junger Br. 64) is simply incorrect. (See R. 63 McNamara Dec. ¶ 18, Apx. _.)

The EAR's export controls "do not burden substantially more speech than is necessary to further the government's legitimate interests." Turner, 512 U.S. at 662 (internal quotations omitted). As the district court recognized, the export controls are targeted at precisely the activity that threatens the government's legitimate interests -- the export of products that have the capability of shielding foreign intelligence targets from American intelligence-gathering efforts. The EAR does not prohibit the export of encryption products altogether, but rather establishes a licensing system under which exports that are consistent with our national security and foreign policy interests may go forward. See 15 C.F.R. § 742.15(b) (encryption export license applications reviewed "to determine whether the export or reexport is consistent with U.S. national security and foreign policy interests"); R. 63 Reinsch Dec. ¶ 5, Apx. _. The licensing requirements are tailored to the risks presented, with less restrictive requirements for exports that pose lesser risks. See 15 C.F.R. § 742.15(b)(1)-(7).

Moreover, the EAR's provisions regarding encryption technology and printed cryptographic publications (see pp. 13-14 supra) "leave open ample alternative channels of communication" (Ward, 491 U.S . at 802) for the exchange of information and ideas regarding cryptography. Far from being significantly impaired by the EAR's encryption export provisions, the public exchange of information and ideas about cryptography is flourishing. Articles, papers, journals, and textbooks concerning cryptography, and containing and discussing cryptographic theories, algorithms, and source code, are commonly published and distributed. (R. 87 Stip. ¶ 18, Apx. _; R. 63 Second Coppolino Dec. ¶ 3 and Tabs 21-25, Apx. _; R. 63 McNamara Dec. ¶¶ 23, 27-37, Apx. _.) Academic courses on cryptography, including theories concerning cryptographic algorithms and software, are taught at many U.S. colleges and universities. (R. 87 Stip. ¶ 19, Apx. _; R. 63 Second Coppolino Dec.¶ 2 and Tabs 1-20, Apx. _; R. 63 McNamara Dec.¶ 25, Apx. _.) And public conferences and symposia are commonly held at which theories of cryptography, including algorithms and their implementations in source code, are publicly discussed. (R. 87 Stip. ¶ 21, Apx. _; R. 63 McNamara Dec.¶ 24, Apx. _.) None of this activity requires a license under the EAR.

Citing Reno v. ACLU, 117 S. Ct. 2329 (1997), Junger argues that the availability of other avenues of communication, like printed books and magazines, is irrelevant to the constitutionality of the EAR's export controls. But Reno involved a quintessential example of a content-based law, the Communications Decency Act (CDA), and the Supreme Court dismissed alternative media as irrelevant in Reno specifically "because the CDA regulates speech on the basis of its content." 117 S. Ct. at 2348 (emphasis added). In contrast, when the regulations in question are content neutral, as here, the availability of "alternative channels for communication" is highly relevant. See Ward, 114 S. Ct. at 791. As this Court has held, "[t]he First Amendment is not violated merely because a content-neutral regulation * * * prevents the use of one mode of communication[,] where others exist." The Enterprise Inc. v. United States, 833 F.2d 1216, 1224 (6th Cir. 1987) (emphasis added).

III. The EAR's Export Controls Are Not A Facially Unconstitutional Prior Restraint

In addition to arguing that the EAR's controls on the export of encryption source code are unconstitutional content-based regulations, Junger also argues that requiring a license for the export of encryption source code amounts to an unconstitutional prior restraint on speech. Junger Br. 49-59. As noted above, Junger has never applied for an export license, much less been denied one. See p. 17 supra. Junger therefore is not in a position to make an "as-applied" challenge to the licensing requirements. He cannot, for example, claim that the government has denied him a license in order to suppress the dissemination of particular information about cryptography, since the government has never denied him a license at all. Instead, he argues that the licensing; requirements are unconstitutional on their face, and that he therefore is entitled to have the licensing requirements invalidated without applying for a license and without showing that the licensing requirements have been applied to him, or anyone else, in an invidious manner.

The district court held that the EAR's licensing requirements are not subject to facial invalidation on prior restraint grounds. (R. 93 Opinion pp. 17-20, Apx. _.) That holding; is correct. When the government creates licensing schemes that are designed to control the flow of information and ideas, or that single out speech or expressive activities for special burdens, the risks to First Amendment interests are great enough that courts permit such schemes to be challenged on their face, rather than requiring a plaintiff to demonstrate that the license was applied to him in a constitutionally impermissible fashion. But as the district court recognized, when the government instead operates a general licensing system that encompasses a wide range of non-expressive as well as expressive activities, and that is not designed to suppress information or ideas, the risks to First Amendment interests are substantially smaller, and a plaintiff must demonstrate that the licensing system has actually been applied in a constitutionally impermissible manner. Junger has not made, and cannot make, such a showing here.

A. The federal government and state and local governments require licenses and permits for a wide range of activities. Some licensing schemes focus on speech or characteristically expressive activities, such as marching or picketing. Other licensing schemes address conduct that is not characteristically undertaken for expressive purposes, but that may be associated with expression in a particular case. These two contrasting kinds of licensing schemes are treated very differently for purposes of facial challenges under the prior restraint doctrine.

The Supreme Court's decision in City of Lakewood v. Plain Dealer Publishing Co, 486 U.S. 750 (1988), establishes the governing standards for "distinguish[ing] laws that are vulnerable to facial challenge [on prior restraint grounds] from those that are not." 486 U.S. at 759. In order for a licensing law to be subject to a facial challenge, it "must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat" of censorship. Ibid. In contrast, "laws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken" are not subject to facial invalidation, but rather may be challenged only on an as-applied basis. Id. at 760-61. Thus, for example, a law requiring building licenses is not subject to facial challenge on prior restraint grounds, even though it restrains activities that may be undertaken for expressive purposes (such as the construction of a newspaper printing plant or a movie theater) and even though it might be used for the impermissible purpose of restraining speech or expressive activities in particular cases. Id. at 762. In sum, under Lakewood, a facial challenge to a licensing scheme cannot be entertained unless the licensing scheme "is directed narrowly and specifically at expression or conduct commonly associated with expression." Lakewood, 486 U.S. at 760 (emphasis added).

Applying these standards, the EAR's export controls are not subject to facial invalidation under the prior restraint doctrine. To begin with, Junger has not shown that exporting; encryption software in source code form is a "expression or conduct commonly associated with expression." As explained above, source code is a set of instructions to a computer, and it is routinely written and distributed for the wholly non-expressive purpose of controlling a computer's operation. We do not mean to suggest that the export of encryption source code may never be undertaken for expressive purposes. But it nonetheless stands in obvious contrast to activities such as holding parades, posting signs, or distributing handbills, which are always (or almost always) undertaken for expressive purposes.

In any event, even if the export of encryption source code were ordinarily an expressive activity, the EAR's export controls are not "directed narrowly and specifically" (Lakewood, 486 U.S. at 760) at that activity. Rather, the EAR's controls on the export of encryption source code are simply part and parcel of its general controls on the export of encryption products. Instead of singling out encryption source code from other encryption items, the EAR expressly provides that the export of encryption software (meaning not only source code but object code) is to be controlled just like the export of encryption hardware. 15 C.F.R. § 742. 15; id. Part 774 Supplement No. 1 (CCL), ECCN 5D002 Note ("for export licensing purposes, encryption software is treated * * * in the same manner as a[n] [encryption] commodity") . In turn, encryption products form only a small part of the vast range of "dual use" items whose export is controlled by the EAR. Thus, far from singling out or targeting expressive activities, the EAR is a classic example of a "law[] of general application * * * not aimed at conduct commonly associated with expression." Lakewood, 486 U.S. at 760-61; cf. Jones Intercable of San Diego, Inc. v. City of Chula Vista, 80 F.3d 320, 325 (9th Cir. 1996) (declining to entertain facial challenge to regulation that "applies to conduct as well as speech, and encompasses many potential activities having no expressive function").

Junger argues that the export licensing requirements are subject to a facial challenge under Lakewood because "the publication of encryption source code on the Internet" is an expressive activity (Junger Br. 51 ). But as explained above, the export controls are not directed at, and do not single out, the publication of encryption source code on the Internet. Instead, they regulate the export (not the "publication") of encryption products (not just encryption source code) by any means (not just the Internet). The licensing regulations are not confined to the potentially expressive activity of "publishing" source code on the Internet, and they draw no distinction among encryption products based on their potential, or lack of potential, to convey information and ideas about cryptography. The bare fact that the regulated activity -- the export of encryption products -- could be undertaken for expressive purposes in a particular case does not mean that the export controls are therefore subject to a facial challenge on prior restraint grounds, any more than a law requiring commercial building permits is subject to a facial challenge because it happens to encompass the construction of publishing facilities. See Lakewood, 486 U.S. at 761. Nor does it mean that these regulations create a sufficiently "real and substantial threat" of censorship (Lakewood, 486 U.S. at 759) to warrant facial invalidation. Because the EAR's export controls apply to all encryption products, not just encryption source code, and because the EAR intentionally leaves open alternative avenues for public discussion and circulation of cryptographic information and ideas (see pp. 50-51 supra), it "provide[s] too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse." Lakewood, 486 U.S. at 761.

The EAR's encryption export controls stand in direct contrast to the kinds of licensing schemes that have been subjected to facial invalidation by the Supreme Court and this Court. The Supreme Court has entertained facial challenges to laws requiring licenses for the distribution of handbills and newspapers; laws requiring licenses for public speeches and parades; and laws licensing businesses engaged in sexually explicit speech. See, e.z., Lakewood (licensing distribution of newspapers on public property); FW/PBS, Inc. v. CitY of Dallas, 493 U.S. 215 (1990) (licensing scheme that "largely targets businesses purveying sexually explicit speech"); Forsyth County v. Nationalist Movement,505 U.S.123 (1992) (licensing public speeches and parades); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) (licensing parades); Lovell v. Griffin, 303 U.S. 444 (1938) (licensing distribution of literature). This Court has entertained facial challenges to similar licensing schemes. See, e.g., Stonewall Union v. City of Columbus, 931 F.2d 1130, 1132-37 (6th Cir.), cert. denied, 502 U.S. 899 (1991) (entertaining facial challenge to parade licensing regulations but holding that regulations did not violate First Amendment). In each of these cases, the laws in question have been directed at expression or conduct commonly associated with expression, and the laws have either confined their scope to expressive activities or have singled out expressive activities for special burdens. The EAR does nothing of the kind.

As noted above, the EAR treats encryption software differently from, and in some (but not all) respects more restrictively than, other kinds of software listed on the Commerce Control List. But this differential treatment does not justify the facial invalidation of the EAR's encryption export controls. The EAR subjects encryption software to different restrictions precisely because the government is not concerned with the potential informational content of such software, but rather with its entirely non-expressive capability to make a computer encrypt data. To hold that the government is impermissibly "singling out" encryption software by refraining from regulating it on the basis of its potential informational value is to turn the logic of the prior restraint doctrine on its head. The fact that the EAR requires encryption software to be regulated the same way as encryption hardware reduces, rather than increases, the risk that the licensing system can be used for the purpose of suppressing information.

B. Junger argues that the encryption export provisions vest the government with "excessive discretion*" and that they are subject to facial invalidation on that ground. Junger Br. 52-56. This argument is misconceived at two levels.

First, Junger overstates the degree of discretion that the EAR's encryption export provisions give to the BXA and other agencies involved in the export licensing process. The EAR contains detailed descriptions of the encryption products that are subject to the EAR and the activities involving those products that require a license. See pp. 11-14 supra. In cases where a license is required, the President's Executive Order and memorandum, and the export licensing policies set forth in the regulations themselves, provide meaningful standards to govern and guide the administrative decisionmakers. 61 Fed. Reg. 58,767-58,768 (Nov. 19, 1996); 32 Weekly Comp. Pres. Doc. 2397-98; 15 C.F.R. 6 742.15. The fact that these standards must be applied to most encryption products on a case-by-case basis (15 C.F.R. § 742.15(b)), and that they do not always lend themselves to mechanical application, does not mean that they leave administrators with "essentially unlimited discretion" (Junger Br. 53), and it likewise does not mean that the licensing; scheme lends itself to manipulation as a means of suppressing information about cryptography.

Second, whether a licensing scheme vests officials with discretion and whether the scheme is subject to a facial challenge are two different questions, not (as Junger's argument implies) the same question. If a licensing scheme "is directed narrowly and specifically at expression or conduct commonly associated with expression."' (Lakewood, 486 U.S. at 760), then it is subject to a facial challenge, and the discretion that it vests in licensing officials may provide a basis for invalidating it on its face. But if the licensing scheme does not single out expressive activity in this fashion, it is not subject to a facial challenge (id. at 761), and a plaintiff therefore cannot prevail merely by pointing to the existence of licensing discretion. Instead, he must bring; an as-applied claim challenging the application of that discretion to him -- something that Junger cannot do, since he has never even applied for a license.

Junger's argument that the export controls are facially unconstitutional because they lack rigid time limits on licensing decisions (Junger Br. 57-58) is misconceived for the same reason. When a licensing scheme focuses narrowly on expressive activities, the risk of delay resulting form a lack of strict time limits means that "every application of the statute create[s] an impermissible risk of suppression of ideas." East Brooks Books. Inc. v. City of Memphis,48 F.3d 220,224 (6th Cir.), cert. denied, 516 U.S.909 (1995) (internal quotations omitted). But when a licensing system does not single out expressive activities, it is not subject to facial invalidation simply because it lacks time limits or other procedural features, but rather must be shown to have been applied in an unconstitutional manner.7

_________________

> 7 The amici erroneously cite FW/PBS for the proposition that an absence of procedural safeguards subjects a licensing scheme to facial invalidation even if the licensing system does not single out expressive activities. EPIC Br. 20-21. The licensing scheme at issue in FW/PBS "largely target[ed] businesses purveying sexually explicit speech," and subjected them to special licensing requirements inapplicable to other businesses. 493 U.S. at 224-25 (plurality opinion).

Junger claims that the discretion embodied in the export licensing requirements creates an intolerable risk of "self-censorship" (Junger Br. 54), meaning a risk that individuals will forgo expressive activities that are not subject to licensing requirements because they fear that a license is required. But as this Court has observed, the "'mere assertion of some possible self-censorship resulting from a statute is not enough to render * * * [a] law unconstitutional."' Connection Distributing, 154 F.3d at 294 (quoting Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 60 (1989)). Here, Junger has greatly overstated the risk that the licensing regulations will deter persons from engaging in expressive activities for which a license is not required. Not only do the regulations describe the licensing requirements in considerable detail, but in addition, persons who are uncertain about the applicability of the licensing requirements can obtain guidance from the BXA by submitting a classification request -- as Junger himself did in this case (see pp. 16- 17 supra).

C. Finally, Junger seeks to analogize the EAR's licensing requirements to the prior restraints presented in cases such as New York Times v. United States, 403 U.S. 713 (1970) (per curiam), and Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (per curiam). However, the EAR's export controls are fundamentally different, both in purpose and in effect, from the prior restraints at issue in such cases.

In New York Times the government sought to enjoin the publication of the Pentagon Papers because the government feared that the documents contained " 'information whose disclosure would endanger the national security.' " New York Times, 403 U.S. at 718 (Black, J., concurring;) (emphasis added) (quoting government brief); id. at 726 n.* (Brennan, J., concurring). Similarly, in Vance, state officials sought to enjoin the operation of a motion picture theater in order to prevent the showing of potentially obscene films. Vance, 445 U.S. at 309. In these and other traditional prior restraint cases, the express purpose of the government's actions was to prevent speakers from communicating "harmful" information and ideas to the public. Prior restraints directed at the communicative effect of speech go to the core of the First Amendment, which serves first and foremost to preserve the free flow of information and ideas. It is chiefly for this reason that the use of prior restraints to prevent "harmful" speech is subject to a "heavy presumption" (New York Times, 403 U.S. at 714) of unconstitutionality.

Here, in contrast, the government's controls on the export of encryption source code and other encryption products are manifestly not aimed at preventing the free exchange of information and ideas about cryptography. As explained above, the EAR's encryption export provisions are concerned with controlling the export of products that encrypt data, not with obstructing the public dissemination of cryptographic knowledge. The exclusion of publicly available technology and printed materials from the scope of the EAR ensures that licensing requirements for the export of encryption products cannot be used to keep cryptographic information out of the hands of computer scientists or the public at large, either here or abroad. This scheme bears no meaningful resemblance to the efforts to restrain speech in cases like New York Times and Vance.

For this reason, Junger is wrong when he argues that New York Times requires the government to "prove" that export of encryption source code will cause "immediate and irreparable harm" to the United States (Junger Br. 59). As noted, the government's object in New York Times was to suppress "'information whose disclosure would endanger the national security."' 403 U.S. at 718 (Black, J., concurring). The use of a prior restraint to prevent speakers from communicating disfavored information and ideas to the public strikes at the heart of the First Amendment, and for that reason, an exceptionally compelling showing by the government is required to justify such an undertaking. In contrast, when a regulatory scheme is not designed to suppress disfavored information and ideas, the mere fact that it involves licensing; does not subject it to the kind of strict scrutiny employed in the New York Times case.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

> Respectfully submitted,

> DAVID W. OGDEN
> Acting Assistant Attorney General

> EMILY M. SWEENEY
> United States Attorney

> WILLIAM B. SCHULTZ
> Deputy Assistant Attorney General

> SCOTT R. McINTOSH
> Attorney, Appellate Staff
> Civil Division, Room 9550
> Department of Justice
> 601 D Street, N.W.
> Washington, D.C. 20530-0001
> (202) 514-4052

April 7, 1999

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. The brief uses a 14-point proportional font and contains 13,977 words.

> [Signature]

> Scott R. McIntosh

CERTIFICATE OF SERVICE

I hereby certify that on April 7, 1999, I filed and served the foregoing BRIEF FOR THE APPELLEES by causing copies to be delivered to the Clerk of the Court and the following persons by first-class mail:

Raymond Vasvari
Gino J. Scarselli
American Civil Liberties Union of
Ohio Foundation, Inc.
1266 West Sixth Street, Suite 200
Cleveland OH 44112
Tel 216-781-6277

Kurt A. Wimmer
David W. Addis
Covington & Burling
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, D.C. 20044-7566
Tel 202-662 6000

David L. Sobel
Marc Rotenberg
Electronic Privacy Information Center
666 Pennsylvania Avenue, S.E.
Washington, D.C. 20003
Tel: 202-544-9240

J. Joshua Wheeler
Robert M. O'Neil
The Thomas Jefferson Center for the
Protection of Free Expression
400 Peter Jefferson Place
Charlottesville VA 22911-8691
Tel: 804-295-4784

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________ NO. 98-4045 __________________
PETER D. JUNGER, Plaintiff-Appellant, v. WILLIAM M. DALEY, SECRETARY OF COMMERCE, et al., Defendants-Appellees.

__________________

APPELLEES' DESIGNATION OF APPENDIX CONTENTS

Appellees, pursuant to Sixth Circuit Rule 30(b), hereby designate the following filings in the district court record as items to be included in the joint appendix:

Description of Entry | Date | Record Entry No.
Declaration of William J. Lowell | 8/22/96 | 11
Second Declaration of Anthony J. Coppolino | 9/18/97 | 63
Declaration of Barbara A. McNamara | 9/18/97 | 63
Declaration of William A. Reinsch | 9/18/97 | 63
Supplemental and Amended Complaint | 9/15/97 | 75
Stipulation of facts not in dispute | 4/10/98 | 87
Opinion and Order | 7/2/98 | 93

> [Signature]

> Scott R. McIntosh

[End]

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