Is Software Like a Can Opener or a Recipe?

July 17, 1998

By CARL S. KAPLAN

Is Software Like a Can Opener or a Recipe?
an openers are not protected by the First Amendment. This should come as no surprise. After all, can openers and other gadgets are not a form of expression.
But what about a recipe for pumpkin pie, or a guide to home repair? These can be useful 'tools,' but they are also forms of speech, fully protected by the Constitution.

The distinction between a gadget and a recipe was at the heart of a recent federal court ruling that denied First Amendment protection to encryption computer software.
On July 2, in a closely-watched decision, Judge James S. Gwin of the U.S. District Court for the Northern District of Ohio ruled that Peter D. Junger, a law professor, could not challenge on First Amendment grounds government regulations that restricted his dissemination of computer software that can encrypt messages.
Junger, a professor at Case Western Reserve University Law School in Cleveland, Ohio, teaches a course in computers and the law. He had sought to post on his Web site various encryption programs he had written as demonstrations. In the fall of 1997, Junger challenged the government's enforcement of the export regulations, claiming that his encryption software was protected by the First Amendment.
In response, the government asserted in legal filings that encryption software was outside the scope of free speech protection. In addition, government lawyers claimed the export restrictions on encryption software, once maintained by the State Department but now supervised by the Department of Commerce, were necessary for national security, lest terrorists and other adversaries gain the capability to veil their messages from the eyes of U.S. intelligence agents. Even though Junger had no plans to export the software himself, posting it on the Web would make it available for downloading worldwide.
In denying Junger's motion to have the case dismissed, Judge Gwin considered the important question of whether encryption source code warrants First Amendment protection. Source code, a series of instructions written by the programmer, is converted or "compiled" into the machine-level code that the computer can run.
Reasoning that only speech or conduct that fosters the spread of ideas is within the scope of the First Amendment, Judge Gwin concluded that encryption source code is not deserving of First Amendment protection because it is not "expressive" but rather is an "inherently functional" device.
The source code "is designed to enable a computer to do a designated task," carrying out the function of encryption, said Judge Gwin. "In doing this function, the encryption software is indistinguishable from...other encryption devices," such as computer hardware or telephone scramblers.
Judge Gwin's decision is in stark contrast to a 1996 decision by Judge Marilyn Hall Patel of the Federal District Court in San Francisco. In that earlier case, Bernstein v. United States, Judge Patel also considered whether encryption source code was protected by the First Amendment.
Grasping the nettle from a different angle, Judge Patel declared that computer source code was a form of writing in a foreign language, and language, by definition -- whether German, French or Fortran -- is protected speech under the First Amendment.

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The functionality of encryption source code was not a bar to First Amendment protection, added Judge Patel. Reaching for a metaphor, she wrote, "Instructions, do-it-yourself manuals, recipes, even technical information about hydrogen bomb construction...are often purely functional; they are also speech."
Judge Gwin, in his ruling, addressed Judge Patel's decision and called it "unsound."
"While a recipe provides instructions to cook, source code is a device, like embedded circuitry in a telephone, that actually does the function of encryption," he wrote.
The Bernstein case has been appealed and is currently pending before the Ninth Circuit. Professor Junger said he expects to appeal his case to the U.S. Court of Appeals for the 6th Circuit. Legal experts agree that it is likely one or both cases will eventually reach the Supreme Court.
Michael Froomkin, a cryptography expert who is a law professor at the University of Miami, said he believed that Judge Gwin was wrong to conclude that encryption source code was an inexpressive gadget.
"It is absolutely correct to say that gadgets are not speech. But is source code a gadget? I think computer programmers would tell you that source code is, in fact, expressive. [Programmers and scientists] exchange bits of code when they talk to each other," he said.
"Of course, once you define source code as purely functional, you get to do away with the First Amendment -- you're in widgetland," added Froomkin. "Apparently, one court thought [source code] was a widget, the other thought it was a recipe. This is an example in law of how metaphors matter. It's how the legal mind works. That's how we teach our students -- to reason by analogy."
For his part, Junger, 64, insists encryption source code is a form of speech that communicates ideas. "Source code does contain words and figures," he said. "My position basically is that things that one writes and communicates [to others] are obviously expressive."
Junger added that he thought Judge Gwin had set up a false dichotomy, because a form of speech could be functional and laden with ideas at the same time. For example, "some speech can make someone else mad," he said.
Junger added that he has been waging his battle against the government on a shoestring, through the kindness of his volunteer attorneys. In the wake of the recent court decision, he said he is confident that some contributions will be sent to his recently-created legal fund.
Not all encryption legal experts agree that Judge Gwin was off the mark, however. Stewart A. Baker, a partner at the Washington law firm of Steptoe & Johnson and former general counsel at the National Security Agency, said he believed the court's decision was "respectable."
"Reading the decision gives you a feeling of how someone who isn't influenced by the atmosphere of Washington or Silicon Valley looks at things," Baker said, adding that it is easy for one to conclude that encryption source code is not expressive. "Most people don't view source code as a way to communicate ideas; it's a way to manipulate computers," he said.

Internet links of interest to Cyber Law Journal readers

Baker added that Judge Gwin might also have been reluctant to second-guess the government on an issue of national security. "That kind of concern doesn't show up in a footnote to the opinion, but it's a fair wind that...helps the government get past its rough spots," he said.
As the legal cases on encryption software flow through the appeals courts, the potential exists to break the political stalemate in Congress on encryption policy, said Barry Steinhardt, president of the Electronic Frontier Foundation, which sponsored the Bernstein litigation.
"Right now there is a strong section in Congress that is pushing hard to relax the export regulations," said Steinhardt. "But the push back from the National Security Agency and the F.B.I. is equally strong. We get a slight movement from the Commerce Department from time to time. If these cases succeed [in establishing First Amendment protection for software], then they will change the landscape dramatically."
At stake in the broad debate over the export of encryption software is the use of encryption by U.S. citizens at home. Legal experts say that as long as domestic manufacturers are prevented from exporting strong encryption products abroad, they will not manufacture and distribute those same wares in the U.S., where the use of encryption is legal.
Without the strongest methods of encryption to protect privacy, electronic commerce will not fully flourish, said Froomkin of the Miami law school. He added that average citizens require strong encryption for another reason, too.
"I think people's need for anonymity is just about to explode in a world where it's incredibly easy to develop data profiles on everybody who uses the Net," he said. "People will want to have a method to anonymize their actions...and the foundation of that is encryption."

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

Related Sites
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Peter Junger's home page
Decision in Junger case
Denial of Government's motion to dismiss in Bernstein v. U.S. Department of State
Electronic Frontier Foundation
Professor Michael Froomkin's homepage

Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.

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