26 March 1998
Source: Hardcopy and digital file from Peter Junger

See related files at Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/

Documents of the suit: http://jya.com/pdj.htm

GINO J. SCARSELLI (0062327)
664 Allison Dr.
Richmond Hts., OH 44143-2907
(216) 291-8601

RAYMOND VASVARI (0055538)
1201 Superior Building
815 Superior Ave. East
Cleveland, OH 44114-2702
(216) 622-1780
KEVIN FRANCIS O'NEILL (0010481)
Assistant Professor of Law
Cleveland-Marshall College of Law
1801 Euclid Ave.
Cleveland, OH 44115
(216) 687-2286

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PETER D. JUNGER Plaintiff v. WILLIAM DALEY, et al. Defendants
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> Case No. 96 CV 1723
> JUDGE NUGENT
> PLAINTIFF'S REPLY BRIEF IN
> SUPPORT OF HIS MOTION FOR
> SUMMARYJUDGMENT AND IN
> OPPOSITION TO THE
> DEFENDANTS' MOTION FOR
> SUMMARY JUDGMENT

TABLE OF CONTENTS
TABLE OF AUTHORITIES | ii
INTRODUCTION | 1
SUMMARY OF THE ARGUMENT | 1
ARGUMENT | 3

> I. Encryption Software Is Speech Entitled To Full First Amendment Protection

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> II. Intermediate Scrutiny Is Not The Appropriate Standard Becausethe Regulations Are Content-Based And Impose An Unconstitutional Prior Restraint

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> III. Even If The Regulations Are Treated Under Intermediate Scrutiny, They Are Unconstitutional

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> IV. The Regulations Are Substantially Overbroad And Plaintiff Is Entitled To Raise An Overbreadth Claim

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> V. The IEEPA Count Has Not Been Withdrawn And Is Not Appropriate For Summary Judgment

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CONCLUSION | 17

TABLE OF CASES
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) 2
Bd. of Trustees, S.U.N.Y. v. Fox, 492 U.S. 469 (1989) 15
Bernstein v. U.S. Dept. of State (Bernstein I), 922 F.Supp. 1426 (N.D. Calif. 1996) 5
Bernstein III. 1997 U.S. Dist LEXIS 13146 (1997) 10, 12
City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) 15, 17
East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995) 12
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) 12, 16
Freedman, 380 U.S. 51 (1965) 12, 13
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) 11
Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539 (1985) 3
Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995) 6
Lakewood v. Plain Dealer, 486 U.S. 750 (1988) 10, 11
Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990) 15
McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995) 7-8
Meyer v. Nebraska, 262 U.S. 390 (1923) 6
Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983) 9
New York Times Co., United States, 403 U.S. 713 (1971) 13
Procter & Gamble Co., v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) 13
Reno v. ACLU, 117 S.Ct. 2329 (1997) 3
Sandul v. Larion, 119 F.3d 1250 (6th Cir. 1997) 6
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) 12
Talley v. State of California, 362 U.S. 60 (1960) 8
Turner Broadcasting System, Inc. v. FCC, 114 S.Ct. 2445 (1994) 9, 14, 14
United States v. O'Brien , 391 U.S. 367 (1968) 12, 13, 14
Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988) 16
Ward v. Rock Against Racism, 491 U.S. 781 (1989) 13, 14

SECONDARY SOURCES
Anthony L. Clapes, Confessions of an Amicus Curiae: Technophobia, Law, and Creativity in the Digital Arts, 19 Dayton L. Rev. 903 (1994) 4, 5
Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648, 655 (1955) 10
Bruce Schneier, Applied Cryptography 7
Bruce Schneier and Dave Banisar, The Electronic Privacy Papers (1997) 14
David Banisar, A Primer on Electonic Surveillance for Human Rights Organizations, International Privacy Bulletin (1993) 8
Donald E. Knuth, Literate Programming, preface ix (1992) 6

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INTRODUCTION

After insisting that export controls, first under the ITAR and now under the EAR, impose no restrictions on academic activity, the defendants now admit that there is no academic exception to the licensing requirements for the "export" of encryption software. According to William Reinsch, Undersecretary for Export Administration, Department of Commerce, such an exception would create a "significant loophole in export controls." Reinsch Decl. ¶ 21. As a consequence, Professor Junger cannot make an article he has written on computing and the law available on his Web site if it includes encryption source code unless he either obtains a license or censors it from his publication.(1) Apparently the defendants believe that this is one of the prices Americans must pay to protect our national interests.

The defendants have it completely backwards. The enjoyment of First Amendment liberties is right of Americans, not a benefit that the government bestows at its discretion. These regulations not only require a prepublication license, they include severe criminal penalties -- not for harming national security, but for "exporting" without a license. As Secretary Reinsch candidly admits, the regulations have nothing to do with the intent of the exporter. Id.

Perhaps even worse, a person intending to publish encryption software on the Internet, for example, cannot be sure what is and is not covered without first submitting the publication to the government. Professor Junger believed for years that a program he wrote, a onetime pad, was an encryption program covered under the export laws. He held this belief for a very simple reason: He and his students used it to encrypt and the regulations define encryption software as software with the capability of encrypting. See 15 C.F.R. Part 772 (Definition of "encryption software"). ]The defendants, however, decided that the program was not covered in spite of the fact that a government official threatened someone else for putting a one-time pad incorporating

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the same function on the Internet.(2)

In reality, the government's position has not changed since the Justice Department's Office of Legal Counsel (OLC) determined that the export controls in effect at that time were suspect. The OLC determined that the export controls could not be constitutionally applied to "communications of unclassified information" by persons, such as university professors, "who are not directly connected or concerned in any way with any foreign conduct carrying dangerous potential for the United States."(3) Ex. 2F, OLC memorandum at 212. That was in 1981.

The defendants claim that if there were no licensing exceptions for the export of encryption software, anyone could be free to provide powerful encryption to Saddam Hussein. Defs.' Br. at 3. Their argument is specious. Professor Junger has never argued that there can be no controls on the export of encryption. From the beginning of this suit, the plaintiff has argued only that specific provisions of the export laws are unconstitutional. The defendants have a myriad of laws at their disposal, including federal conspiracy (18 U.S.C. § 844), solicitation (18 U.S.C. § 373) and aiding and abetting laws (18 U.S.C. § 2), as well as the Espionage Act (18 U.S.C. § 792 et seq.) that could criminalize the export of powerful encryption to Saddam Hussein. What the defendants cannot do is restrict publication -- the general dissemination of software and technology -- in advance or prevent Professor Junger or anyone else from emailing encryption software to, for example, the Dalai Lama.(4)

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ARGUMENT

I. Encryption Software Is Speech Entitled To Full First Amendment Protection
Instead of addressing plaintiff's claims that computer programs express ideas and convey information through language and that making programs available to the general public is, consistent with the dictionary definition, a form of publication, the defendants simply characterize plaintiff's theory as equating "software" with "speech" and "the Internet" with "publication." Defs. Br. at 14-15. This may not be the most illuminating way of describing plaintiff's position, but it is essentially correct. Software has all the indicia of speech and, therefore, is speech entitled to full First Amendment protection. Making software available on the Internet and the World Wide Web is publication of that software, and publication in that medium is entitled to the unqualified protection of the First Amendment. See Reno v. ACLU, 117 S.Ct. 2329, 2344 (1997).(5)
The defendants concede that computer programs in source code are readable by humans. See Defs.' Br. at 8-9. They are wrong, however, in stating that only source code can be read or understood. See id. at 15. Although object code is more difficult to read than source code, programmers often find it necessary to read and write in object code.(6) Moreover, in both source code and object code forms, programs are protected as literary works under the copyright laws which means that they are necessarily works of expression.(7) See Apple Computer, Inc. v.

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Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983) (recognizing computer programs as literary works protected under copyright), cert. dismissed, 464 U.S. 1033 (1984); cf. also Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 558 (1985) (recognizing that the Copyright Act's protection of expression reflects the core values of the First Amendment). These characteristics are sufficient to place software well within the realm of First Amendment protection.

Nonetheless, the defendants argue that software should be treated as a "product" because of its functionality.(8) Computer programs are functional in the sense that they contain instructions that can be performed by a properly configured computer, but only if certain conditions occur. Software in a book, or on a floppy disk or on a Web site cannot funciton by itself. Only when a person loads the program, after it has been converted into executable form, into a properly configured computer and instructs the computer to execute the program does the computer -- not the software -- perform the function specified by the program's instructions.(9) In this sense of "functional," music CDs are functional. A music CD will not play unless someone inserts it into a CD player or a properly configured computer with a CD-ROM drive and presses the "play" button. In the sense that the government uses "functional," the music CD is functional because it "becomes software that causes a computer to produce a result: music . . ." Anthony L. Clapes, Confessions of an Amicus Curiae: Technophobia, Law, and Creativity in the Digital Arts, 19 Dayton L. Rev. 903, 904 (1994).

That a writing contains instructions, whether or not they can be implemented with the aid

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of a computer, does not deprive it of First Amendment protection. There is no constitutional difference between software and instructions that "cannot be executed to program a computer's microprocessor." See Defs.' Br. at 15. Both kinds of instructions can be used to perform a certain task. A recipe, for example, can be carried out by a person by simply following simple step-by-step instructions or by a baking machine. The result of having a person follow a step by step recipe or using a computer program to operate a baking machine is the same: a cake. The defendants have given no reason why instructions that are written, read and understood should be treated differently under the First Amendment simply because they can be executed by a computer. The operation that a computer performs may be more conduct than speech, but the same can be said for building a house from blueprints or baking a cake from a recipe. Just as it would be impermissible to require a license for the publication of a recipe, it is impermissible to require a license for the publication of computer program.

What the defendants fail to grasp are the symbolic and linguistic features of computer programs. All computer programs are written in languages either directly by humans or with the assistance of other programs written by humans, such as compilers and assemblers that take a program in source code and translate it into a program in object code. The relevant point for First Amendment purposes is that a computer program is written in a language, and like other languages, a programming language is a medium of communication with a "sophisticated and complex system of understood meanings."(10) Bernstein v. U.S. Dept. of State (Bernstein I), 922 F.Supp. 1426, 1435 (N.D. Calif. 1996), appeal docketed, (citing Yniguez v. Arizonans for Official English, 69 F.3d 920, 935-36 (9th Cir. 1995) (en banc), cert. granted, 116 S. Ct. 1316 (1996), vacated on other grounds and remanded sub nom Arizonians for Official English v.

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Arizona, 117 S. Ct. 1055 (1997)). The boundaries of the First Amendment may not be entirely clear, but freedom of speech must include at least whatever can be written in a language. As this Circuit has recently stated, "First Amendment protection is very expansive." Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (recognizing fighting words as the only kind of language explicity excluded from First Amendment protection).

Computer programs, moreover, are not less protected by the First Amendment because not all people can read them. Not all English speakers can read or understand German, but that did not prevent the Supreme Court from striking down a law that prohibited school instruction in German. See Meyer v. Nebraska, 262 U.S. 390 (1923). Musical scores and mathematical proofs provide other examples of texts protected by the First Amendment, but readable only by a minority of people. Readability, moreover, may not even be necessary for First Amendment protection. Justice Souter in a fairly recent Supreme Court decision had no difficulty considering the nonsense verse of Lewis Carrol's Jaberwocky, which by definition cannot be understood, as protected expression under the First Amendment.(11) Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 569 (1995) (noting that the paintings of Jackson Pollock, the music of Arnold Schenberg and the Jabberwocky verse of Lewis Carroll are all example of First Amendment protected expression). If the First Amendment is broad enough to protect nonsense verse, it is certainly broad enough to protect computer programs, which are a means of expression for programmers and vital for the development of computer science. See, e.g., Goldberg Decl. ¶ 10-12.

To avoid having this case turn on the question of whether software should be protected by the First Amendment, the defendants rephrase the question in terms of export: "The question

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is not whether the 'item' can be expressive, but whether regulation of some activity with that item -- here, its export from the United States -- impermissibly limits expression." Defs.' Br. at 15. Rephrasing the question, however, does not help the government's position for a number of reasons.

First, the defendants cannot reasonably redefine "export" to include posting to a Web site. See 15 C.F.R. § 734.2(b)(9)(ii) ("downloading or causing the downloading of [encryption] software to locations . . . outside the U.S., or making such software available for transfer outside the United States, including transfers from electronic bulletin boards and Internet file transfer protocol and World Wide Web sites. . ." considered an "export") (emphasis added). The Internet is a global medium, but defining "export" to include publishing on the Web truly distorts the English language, especially when it would make all publication on the Web, not just the publication of software, potentially subject to regulation and licensing under the guise of export regulations. It may make sense to consider a private transmission via email from a person in the United States to a person overseas as an export, but stretching the definition to include publication on the World Wide Web is absurd.

Second, by characterizing the question as one of impermissibly limiting expression, the defendants concede that the regulations limit expression. The regulations prohibit the publication of encryption software on the Internet without a license, regardless of whether the software is published for peer review among computer scientists or in scientific journals or law reviews.

Third, an encryption program's functionality -- its use -- implicates First Amendment interests that would not be implicated by attempts to regulate many other kinds of software. When the defendants speak of encryption software's functionality, they mean that encryption software can be used to encrypt information to preserve privacy and keep communications confidential. This functionality is itself entitled to special First Amendment protection.

As a people, we have a right to encrypt our communications and protect our messages and identities from third parties, including the government. See McIntyre v. Ohio Elections

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Commission, 115 S.Ct. 1511, 1524 (1995); Talley v. State of California, 362 U.S. 60, 64 (1960). The use of encryption is necessary for this protection. It can be used by lawyers to protect sensitive email and by human rights organizations in the U.S. and political dissidents overseas to protect their communications.(12) As there is no academic exception for "exporting" encryption software, there is no human rights exception -- in both cases, U.S. citizens must obtain a license from the government before they make encryption available to foreign clients and foreign dissidents.

The defendants' theory would create a First Amendment exception for all computer programs, notwithstanding their admitted expressiveness and the linguistic and communicative features they share with other functional writings. If the Court adopts the defendants' theory, there is nothing to prevent the defendants from licensing the "export" of Bruce Schneier's book Applied Cryptography and Professor Junger's course materials, both of which contain encryption software that the government has already classified as ECCN 5D002.(13) The defendants' theory, moreover, would have the drastic effect of potentially subjecting all software to prepublication review and a license because all software is, in the government's sense, functional. Such regulation, whether under the guise of export controls or content-neutral regulations, is nothing but censorshp, pure and simple.

II. Intermediate Scrutiny Is Not The Appropriate Standard Becausethe Regulations Are Content-Based And Impose An Unconstitutional Prior Restraint.

The defendants claim that the regulations are content-neutral and, therefore, should be evaluated under intermediate scrutiny because they "are not targeted at the content of ideas." Defs.' Br. at 22. According to the defendants, the government's purpose "is the controlling consideration" in determining whether a regulation is content-based or content-neutral, and as

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long as the government has not adopted the regulations "because of disagreement with the message [speech] it conveys," the regulations are content-neutral. Id. at 18-19 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

As the Court recognized in Tuner Broadcasting System, Inc. v. FCC, 114 S.Ct. 2445, 2459 (1994), "[d]eciding whether a particular regulation is content-based or content-neutral is not always a simple task." Illicit intent or disagreement with a particular message is not always necessary to find a law or regulation content-based. Id. ("[W]hile a content-based purpose may be sufficient in certain circumstances to show that a regulation is content-based, it is not necessary to such a showing in all cases."); cf. Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983) ("We have long held that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.").

Whether or not the government's purpose is content-neutral, the regulations themselves are content-based because they target encryption software. Like all software, encryption software is a set of instructions, and its content is simply the instructions. Assuming for the sake of argument that the defendants are not interested in regulating the content of encryption programs, they cannot regulate the publication of encryption programs without regulationg content. The publication of any software is nothing other than the publication of a set of instructions. This was recognized by Congress in the Export Administration Act (EAA), 50 U.S.C. App. § 2401 et seq. where "software" is included in the definition of "technology," which includes "information or know-how [tangible or intangible] that can be used to design, produce, manufacture, utilize or reconstruct goods, including computer software and technical data, but not the goods themselves." Id. at § 2415(4). The EAA created two mutually exclusive classes, technology and goods, see id. § 2415, and the EAR follows the EAA except when it comes to encryption software. All software other than encryption software is controlled under the EAR as "technology." Only encryption software is treated as a product only since December 30, 1996.

For a separate reason, the government's purpose is irrelevant to the disposition of this

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case. Apart from whether the regulations are content-based or content-neutral, they constitute a prior restraint on speech. Prior restraints are given special treatment under the First Amendment and can be struck down even if content-neutral. If the EAR imposes a prior restraint on activity that has "a close enough nexus to expression or to conduct commonly associated with expression," the government's purpose is irrelevant, and the regulations must be struck down on facial grounds because they do not provide either (i) narrow and objective standards or (ii) the minimal procedural safeguards. See generally Lakewood v. Plain Dealer, 486 U.S. 750 (1988).

The encryption regulations impose a licensing scheme. There is no dispute about this. The dispute is whether the regulations have "a close enough nexus to expression or to conduct commonly associated with expression, " and therefore constitute a prior restraint. Any scheme that suppresses or forbids speech in advance of its expression is a prior restraint. See Ward, 491 U.S. at 795 n.5. The encryption regulations do just that. Apart from some minor exceptions,(14) all encryption software must be licensed before it can be transmitted outside the United States or published on the Internet, even if published for purely academic reasons or put freely into the public domain.(15) Thus, the licensing scheme imposed by the EAR on encryption is a classic example of a prior restraint. See Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648, 655 (1955) ("[T]he clearest form of prior restraint arises in those situations where the government . . . undertakes to prevent future publication or other communication without advance approval of an executive official.").

The defendants insist that the regulations do not create a prior restraint and cannot be challenged facially because they are not "directed narrowly and specifically at expressive activities." Defs.' Br. at 30. This argument was rejected by Judge Patel in Bernstein III. 1997 U.S. Dist LEXIS 13146 at *53. A similar argument was also rejected by the Court in Lakewood.

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See 486 U.S at 774 (dissent, White, J.) (arguing that placement of newsracks on city property is not conduct specifically protected by the First Amendment). The rule in Lakewood is that as long as a licensing scheme places excessive discretion in government officials and is sufficiently related to expression, the scheme is a prior restraint and can be challenged facially regardless of whether it is also content-neutral. "[E]ven if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or a permit from a government official in that official's boundless discretion." Id. at 764; see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990) (ordinance struck down as a prior restraint even though "the city [did] not exercise discretion by passing judgment on the content of any protected speech").

Moreover, even on the theory advanced by the defendants -- that the regulations are content-neutral because the government's purpose is legitimate and unrelated to restricting expressive activity -- the regulations would still fall under Lakewood. The Court in Lakewood struck down the ordinance restricting the placement of newsracks as a prior restraint even though the city had legitimate purposes unrelated to expression or expressive activity: the protection of pedestrians and motorists from an increased probability of accidents and protection of the city's aesthetic interests. See id. at 782-83.

Content-based distinctions are only relevant to a prior restraint analysis insofar as they explain why the Court in Lakewood adopted a broad rule allowing facial challenges to discretionary licensing schemes that have a sufficiently close nexus to expression. The Court in Lakewood identified two risks in such licensing schemes: self-censorship and the difficulty of proving content-based censorship or discrimination. See 486 U.S. at 759. Both are present in this case. Professor Junger, and others, have censored their publications, and even though Professor Junger had to submit detailed specifications of what he believed were encryption programs, there is really no way for him to know whether the classification decisions were based

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on content as well as funcitonality.(16)
Content-neutrality is thus irrelevant when judging a prior restraint. This is evident in Judge Patel's decision in Bernstein and the Sixth Circuit's decision in East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995). In Bernstein III, the court held that the encryption regulations were an unconstitutional prior restraint without deciding whether the regulations were content-based or content-neutral. See id. at *12 ("thus, without deciding whether the regulations are content based, the court turns to the procedural safeguards afforded under the encryption regulations.") In East Brooks, the court struck down the licensing provisions of an ordinance regulating sexually oriented business while at the same time finding the ordinance content-neutral, but nonetheless invalid under the O'Brien test. See 48 F.3d at 224-26. As East Brooks and Bernstein III demonstrate, a licensing scheme can be struck down as a prior restraint regardless of whether or not it is content-neutral. Thus, intermediate scrutiny is neither the appropriate, nor only, test needed to evaluate the EAR scheme.

The appropriate tests come from two lines of Supreme Court cases, both of which are directed at protecting against abuses of discretion. The first line, from Freedman, requires that the defendants provide minimal procedural safeguards. Specifically, Freedman requires (1) definite and reasonable time limits, (2) prompt judicial review and (3) a burden on the government to seek court review and justify an adverse licensing decision. 380 U.S. at 58-60. As argued in the previous brief, the present scheme is unconstitutional for failing to provide the first two requirements, let alone the third. See Pl.'s Br. at 20-21.

The second line of cases is found in Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) and Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). These cases require "narrow, objective and definite standards" to restrain the discretion of licensing officials. Id. at 131 (quoting Shuttlesworth, 394 U.S. at 150-51). Again, as argued in the previous brief, the regulations fail to provide any standards, let alone "narrow, objective, and definite" ones, and

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instead specifically allow licensing decisions to be made on a "case-by-case" basis. See 15 C.F.R. 742.15(b); Pl.'s Br. at 20-22. Overlapping both lines is the Pentagon Papers case, New York Times Co., United States, 403 U.S. 713 (1971). New York Times requires that the government satisfy an additional burden of establishing "direct, immediate, and irreparable" harm if the restraint is on publication. See Procter & Gamble Co., v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996).

The defendants offer only two responses to plaintiff's prior restraint arguments. Both are unconvincing. First, the defendants argue that the prior restraint cases cited by Professor Junger are too dissimilar to the present case. As the defendants put it, "[a] principle of law cannot be wrenched from the context in which it has been applied." Defs.' Br. at 32. This principle, however, does not keep the defendants from relying on cases about burning a draft card (O'Brien), playing music in a public forum (Ward) and requiring cable operators to carry local broadcast stations (Turner). If the defendants are looking for substantially similar facts, the most appropriate place to look are Judge Patel's opinions in Bernstein.

The defendants' more serious argument is that the government cannot be forced to go to court to stop someone from "exporting" encryption software. Defs.' Br. at 3, 32-33. This argument is directed against plaintiff's reliance on New York Times and the third Freedman safeguard. Even if New York Times is ignored and the third Freedman safeguard is disregarded, the encryption regulations are still unconstitutional because they fail to provide narrow, objective standards and fail to satisfy the first two Freedman safeguards.

III. Even If The Regulations Are Treated Under Intermediate Scrutiny, They Are Unconstitutional

Granted that the government has a legitimate interest in the export of some encryption software to certain foreign citizens outside the United States, the encryption regulations are nonetheless unconstitutional under intermediate scrutiny because they are not "unrelated to the suppression of free expression" and "burden substantially more speech than is necessary to further the government's legitimate interests." Turner, 512 U.S. at 662. Even if the regulations

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are content-neutral as the defendants claim, they suppress expression and espressive activity in two ways. First, the regulations directly suppress the publication, or as the defendants prefer, "distribution," of encryption software. This has the effect of directly suppressing speech on the Internet, including the publication of encryption software itself for purely academic reasons. See, e.g., Ex. 1P, ACM letter. Second, as the defendants admit, the controls are directed at the widespread use of encryption software. This has the effect of suppressing encrypted communication posing no threat to U.S. security interests. See, e.g., Banisar Decl. ¶ 6 (without encryption, some speech, pure political speech, would not occur over the Internet).

The government has stated that the purpose of the export controls is to allow the NSA to intercept and collect foreign communications. See McNamara Decl. ¶ 5. The government's interest may , in fact, be broader than intercepting strictly foreign communications: "The national security community is especially interested in preventing the spread of high quality encipherment routines overseas, and argues that more extensive use here at home will inevitably result in such a proliferation." Ex. 2I, Mem. from Ray Polari, April 30, 1993, reprinted in Bruce Schneier and Dave Banisar, The Electronic Privacy Papers 627 (1997). Whether the government's intelligence gathering is directed soley to foreign targets or also targets communication between foreigners and U.S. citizens, the government's intent is to restrict the widespread use of encryption, and this has the effect, intended or not, of suppressing the communication of U.S. citizens.(17) Thus, unlike the laws and regulations at issue in the defendants' principal cases, O'Brien, Ward and Turner, the EAR is specifically aimed at suppressing expression.

Moreover, the harms that the defendants assert must be real and "not merely conjectural." Turner, 512 U.S. at 664. The defendants must show that "the regulation will in fact alleviate these harms in a direct and material way." Id. (emphasis added). As noted in plaintiff's first brief, the foreign availability of encryption software and the exemption under the EAR for encryption software in print form undermine the purpose of the regulation. See Pl.s' First Br at

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10-11, 15-17. The defendants have not established sufficient facts showing that the plaintiff is wrong. Thus, the defendants cannot succeed on their motion for summary judgment even if the Court applies intermediate scrutiny.

IV. The Regulations Are Substantially Overbroad And Plaintiff Is Entitled To Raise An Overbreadth Claim

Defendants argue that plaintiff lacks standing to challenge the regulations as overbroad because plaintiff has identified no significant difference between his activities and those of third parties not before the Court. This is plainly wrong. First, defendants' reliance on City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) is misplaced. Not only did Taxpayers for Vincent not involve a licensing scheme, the Supreme Court has since stated that it would be "absurd" to prevent someone from bringing an overbreadth claim merely because he or she has direct standing.(18) Bd. of Trustees, S.U.N.Y. v. Fox, 492 U.S. 469, 484 (1989); see also Leonardson v. City of East Lansing, 896 F.2d 190, 194-95 (6th Cir. 1990) (entertaining an overbreadth challenge even though plaintiff's had direct standing). (19)
The encryption regulations contain numerous restrictions that are not raised by plaintiff's own speech. For instance, Professor Junger is not in the business of selling software and therefore is not in the same position as commercial vendors such as Netscape and Microsoft. On the other hand, Professor Junger is an academic and claims academic freedom for his activities; many persons affected by the regulations are not associated with educational institutions and therefore cannot claim this specific First Amendment right.

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Moreover, Professor Junger asserts not only his own rights to speak and publish, but the rights of others to receive encryption software and technology. When a speaker alleges the rights of receivers, overbreadth doctrine is properly invoked. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 393 (1988) (pre-enforcement overbreadth challenge by booksellers permissible because infringement of bookbuyers' First Amendment rights alleged).

The real concern is the degree to which the regulations deter protected speech. A party may bring a challenge "under the overbreadth doctrine . . . where the ordinance sweeps too broadly, penalizing a substantial amountof speech that is constitutionally protected." Forsyth County, 505 U.S. at 129-30 (citations omitted). Taxpayers for Vincent itself recognizes that "where the statute unquestionably attaches sanctionsto protected conduct," as here, "the likelihood that the statute will deter that conduct is ordinarily sufficientlygreat to justify an overbreadth attack." 466 U.S. at 800 n. 19.

As plaintiff has already demonstrated in his first brief, the regulations are substantially overbroad. See Pl.'s Br. at 15-18. Thus, the Court must strike them as a whole unless there is some narrowing construction. The most obvious narrowing construction would be to treat encryption software like all other software and technology controlled under the EAR. This would make the exemptions in exempt encryption software that is publicly available and a result of academic teaching and research. This narrowing would not remove all the constitutional infirmity, but it would narrow the class of unconstituional applications.

V. The IEEPA Count Has Not Been Withdrawn And Is Not Appropriate For Summary Judgment
The IEEPA count is dependent on legally significant facts still in dispute. For example, plaintiff claims that the government's licensing scheme is nothing more than a means of controlling the distribution of encryption items and technology, and therefore the spread of encryption and legitimate encrypted communications, including on the Internet which has the effect of controlling the dissemination of information and software in the United States. Such

16

facts are directly relevant to Plaintiff's IEEPA claim that the encryption export scheme constitutes an impermissibly broad delegation of authority and therefore a separation of powers problem. Summary Judgment is therefore inappropriate.(20)

CONCLUSION

For the reasons given, plaintiff's motion for summary judgment should be granted on all counts other than IEEPA, and defendants' motion for summary judgment on all counts should be denied.
Respectfully submitted,
[Signature]
______________________

Gino J. Scarselli (0062327)
664 Allison Drive
Richmond Hts., OH 44143
Tel. 216-291-8601
Attorney for the Plaintiff

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was served by Federal Express to upon Anthony J. Coppolino, Department of Justice, Civil Division Room 1084, 901 E Street, N.W., Washington, D.C. 20530, on December 5, 1996,
Respectfully submitted,
[Signature]
_______________________

Gino J. Scarselli (0062327)
664 Allison Drive
Richmond Hts., OH 44143
Tel. 216-291-8601
Fax 216-291-8601
Attorney for the Plaintiff

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NOTES

1. See Tab F to Supp. Comp., letter from James Lewis to plaintiff's counsel, August 7, 1997, at 2.

2. See letter of James T. Demberger, dated September 22, 1994, and related correspondence attached to Demberger Decl.

3. That memorandum specifically dealt with the constitutionality of export restrictions on technical data ("technology"). Plaintiff's position is that encryption software should, at the least, be treated as technical data, for which there is no question that the First Amendment applies. Thus, although plaintiff's first brief argued specifically for First Amendment protection of encryption software, all of the arguments are applicable to restrictions on encryption technical data or technology (other than the overbreadth claim where most of the constitutional problems arise because the EAR exemptions for technical data and technology do not apply to encryption software).

4. See Tabs to Decl. of plaintiff's counsel. Defendants attached numerous articles giving the impression that cryptography articles in scientific journals do not include code. The articles attached to plaintiff's counsel's declaration, which were found in a single afternoon, show otherwise.

5. The Court's opinion in ACLU v. Reno makes it clear that the government cannot treat Internet publication any differently than publication in print.

6. See Minow Decl. ¶¶ 7, 10., in particular Attachment A.

7. "Literary works" are defined under the copyright law as works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. 17 U.S.C. § 101.

8. The defenants accuse us of playing semantics, but their use of "product" is misleading. Books, CD-Roms, videotapes, etc. can all be considered"products," but that does not put them outside the reach of the First Amendment.

9. The defendants' functionality argument is related to their harm argument. For encryption software to be harmful to the United States some foreign person must (1) find the software, and (2) if in source code, compile it into a ready to run program, and (3) use it to encrypt (4) a message the content of which is potentially harmful to the interests of the United States, then (5) send that message to (6) yet another person who receives it, and (7) decrypts it, and (8) acts upon the information it contains in a manner injurious to the United States. Without all these steps taken by third parties, encryption software is no more a threat to the national security of the United States than a closed book on a shelf.

10.

> Programs are written in a code that's referred to as a computer language, and that's just what it is -- a language, complete with subjects and verbs and all the other parts of speech we used to be able to name back in junior high school. Programmers learn to speak the language, and good programmers learn to speak it fluently.

Confessions of an Amicus Curiae, 19 Dayton L. Rev. at 928 n.101 (quoting Cringely, Accidental Empires: How the Boys of Silicon Valley Make Their Millions, Battle Foreign Competition, and Still Can't Get a Date 28 (1992)).

11. Compare nonsense verse with what a prominent computer scientists has to say about programming:

> Programming is best regarded as the process of creating works of literature, which are meant to be read . . . Computer programs that are truly beautiful, useful, and profitable must be readable by people. So we ought to address them to people, not to machines.

Donald E. Knuth, Literate Programming, preface ix (1992).

12. See Banisar Decl. 6-7; see also David Banisar, A Primer on Electonic Surveillance for Human Rights Organizations, International Privacy Bulletin 3 (1993).

13. The government has explicity reserved the right to license books and other printed material that contain encryption programs. 15 C.F.R. § 734.3, Note.

14. Software used by financial institutions, for example, to protect confidentiality is not treated as encryption software under ECCN 5D002. See 15 C.F.R. Part 774, ECCN 5D002.

15. Even the defendants concede that some "exports" of encryption software are expressive activities. See Defs.' Br. at 30-31.

16. Plaintiff's OTP program was not considered controlled software, but James Demberger's OTP was. See Demberger Decl and attached letters.

17. For a short explanation of key escrow, see Ex. 2K, NRC Report at 167-69.

18. Defendants also argue that plaintiff lacks standing to challenge the restrictions on the "technology" provisions. See Defs.' Br. at 37-40. If defendants were correct, it would follow that Professor Junger has standing to bring an overbreadth challenge based on the rights of others to disseminate technology. Defendants cannot have it both ways.
19. Plaintiff also argues that the definition of "encryption software" is vague and must be redrawn because it does not provide fair notice of what falls under the definition. See Leonardson, 896 F.2d at 196.

20. These claims are related to plaintiff other IEEPA claim that the plain language of statute excludes the regulation of information put in the public domain. This latter IEEPA claim, which plaintiff also does not withdraw, could be appropriate for summary judgment, but is better raised with the others.

[End]

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