" Constitutional Law--Free Speech Clause--Sixth Circuit Classifies Computer Source Code as Protected Speech--Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) ," 114 Harvard Law Review 1813 (2001)

"Constitutional Law--Free Speech Clause--Sixth Circuit Classifies Computer Source Code as Protected Speech--Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)," 114 *Harvard Law Review* 1813 (2001)

Jeanne C. Fromer, Recent Case, Constitutional Law--Free Speech Clause--Sixth Circuit Classifies Computer Source Code as Protected Speech--Junger v. Daley, 209 F.3d 481 (6th Cir. 2000), 114 Harv. L. Rev. 1813 (2001)

City  Lakewood v. Plain Dealer Publ'g Co.

tions required a license for the export of encryption source code to almost all destinations. 8 Peter Junger, a law professor at Case Western Reserve University Law School, wished to post on the Internet an example of source code for encryption to demonstrate how computers work. 9 Junger wanted to provide this code on his "Computers and the Law" course website. 10 He sued in federal district court, raising a facial challenge to the export regulations on First Amendment grounds. 11 Junger argued, inter alia, that the licensing requirements were an unconstitutional prior restraint and that they effected an unconstitutional content-based discrimination by imposing more stringent export regulations on some types of encryption software than on others. 12 The district court found encryption source code insufficiently expressive to merit First Amendment protection because it is "inherently functional." 13 The court concluded that Junger could not mount a successful facial challenge and denied his First Amendment claims. 14 The Sixth Circuit reversed and remanded. 15 Writing for the court, Chief Judge Martin 16 held that all source code is "an expressive means for the exchange of information and ideas about computer programming" and is therefore protected by the First Amendment. 17 The panel asserted that any idea with the "slightest redeeming social importance" deserves First Amendment protection; 18 the Supreme Court, after all, had granted First Amendment protection to symbolic conduct with both functional and expressive features, such as burning a draft card. 19 The Sixth Circuit derived support for First Amendment protection of nontraditional speech intelligible only to a segment of the general population -such as source codefrom the Supreme Court's position that the First Amendment clearly protects the esoteric speech of Jackson Pollock's artwork, Arnold Schoenberg's music, and Lewis Carroll's "Jabberwocky" verse. 20 -------------------------------------------------------------Encryption Items, 65 Fed. Reg. 2492, 2496 (Jan. 14, 2000) (to be codified at 15 C.F.R. § 734.2(b)(9)(ii)). 8 See 15 C.F.R. § 742.15(a) (excepting Canada). 9 Junger, 209 F.3d at 483. 10 Junger v. Daley, 8 F. Supp. 2d 708, 713 (N.D. Ohio 1998). The course website, Computing and the Law, is available at http://samsara. law.cwru.edu/comp_law (last visited Mar. 19, 2001). 13 Id. at 716 (observing that encryption source code "is designed to enable a computer to do a designated task" and "is indistinguishable from dedicated computer hardware that does encryption"). However, unlike hardware, source code cannot perform any function until translated into object code. See SETHI, supra note 1, at 8. Although the panel found that the general expressive nature of source code made it protected speech, the court acknowledged that the government had, in some cases, a legitimate interest in regulating source code. The court noted that the functional capabilities of source code were relevant to an assessment of the government interest in regulation. 21 The panel remanded the case to the district court to determine "whether the exercise of presidential power in furtherance of national security interests should overrule the interests in allowing the free exchange of encryption source code." 22 The Sixth Circuit's categorization of all source code as First Amendment-protected speech was too sweeping. 23 Instead, First Amendment analysis should proceed with a sensitivity to the varying levels of expression embedded in different kinds of source code and the range of purposes that the communication of source code accomplishes. Such a nuanced inquiry could be as effective in addressing source code as it has been in evaluating other symbolic conduct. The Sixth Circuit's analysis advanced from the proposition that "'all ideas having even the slightest redeeming social importance,' including those concerning 'the advancement of truth, science, morality, and arts have the full protection of the First Amendment.'" 24 This approach overlooked the pertinence of the Supreme Court's jurisprudence on symbolic conduct, in which "'speech' and 'nonspeech' elements are combined in the - ------------------------------------------------------------(1995)). 21 Id. at 485. 22 Id. The panel also remanded the question whether Junger could bring a facial challenge to the regulations in light of their amendment after Junger had filed suit. Revisions to Encryption Items, 65 Fed. Reg. 2492, 2492 (Jan. 14, 2000) (to be codified at 15 C.F.R. § § 734, 740, 742, 770, 772, 774) (allowing "the export . . . of any encryption commodity or software to individuals, commercial firms, and other non-government end-users in all destin ations"). 23 So broad a First Amendment classification may "unduly slight the distinctions among types of speech within the category and the differences in contexts . . . that particular examples . . . may in fact present." GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 1034 (13th ed. 1997). An overly broad classification threatens dire consequences for important values, including the government's legitimate needs for national security, see Froomkin, supra note 6, and for the protection of individuals' privacy from computer monitoring, see Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 504-05 (1999). Deeming source code speech for First Amendment purposes does not mean that source code is necessarily unregulable -a law restricting code still can survive the appropriate level of judicial scrutiny -but a sweeping speech classification would accord First Amendment protection even to source code that is not sufficiently expressive. 24 Junger, 209 F.3d at 484 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). Public policy supports this argument: Often technical speech, like algorithmic source code, is related in the academic context among . . . scientists . . . . The danger to speech from the chilling of individual thought is especially real in the university setting, where the state acts against a . . . tradition of thought and experiment that is at the center of our intellectual and philosophic tradition. Norman Andrew Crain, Commentary, Bernstein , Karn, and Junger: Constitutional Challenges to Cryptographic Regulations, 50 ALA. L. REV. 869, 888 (1999). same course of conduct." 25 This jurisprudence is relevant to determining whether source code is speech because of code's distinctive mélange of expression and function. Computer scientists acknowledge this duality. Although source code cannot function until compiled and executed on a computer, computer scientists, recognizing code's functional aspect, view "a programming language [as] an extension of the underlying machine and . . . a program [as] an extension of the programming language." 26 At the same time, computer scientists recognize code's expressive elements, noting that it should be "easy to read, easy to understand, and easy to modify." 27 According to the Supreme Court, not every activity with some expressive quality merits constitutional protection, because "[i]t is possible to find some kernel of expression in almost every activity a person undertakes -for example, walking down the street or meeting one's friends at a shopping mall -but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." 28 Conduct must be "sufficiently imbued with elements of communication" to merit constitutional protection. 29 Spence v. Washington required claimants to show "[a]n intent to convey a particularized message" (the sufficiently expressive prong) and a great "likelihood [given the surrounding circumstances] . . . that the message would be understood by those who viewed it" (the likelihood-ofunderstanding prong). 30 Application of this test to source code suggests that regulation of code may not always implicate the First Amendment because its authors may not intend to convey any message, or if they do, the viewers of the code may not understand its message. In deciding whether source code fulfills the Spence sufficiently expressive prong, 31 it is helpful to liken code to a recipe: it can either instruct a - ------------------------------------------------------------25 United States v. O'Brien, 391 U.S. 367, 376 (1968). Despite its development in the context of First Amendment as-applied challenges, symbolic conduct jurisprudence illuminates the issue whether a statute's target is speech in the context of a facial challenge. 26 SETHI, supra note 1, at 11. Source code's combination of expression and function invites comparison to speech acts -that is, utterances that include acts, such as promises, requests, or warnings. See John Searle, What Is a Speech Act?, in PHILOSOPHY IN AMERICA 221, 221-23 (Max Black ed., 1965); cf. Masses Publ'g Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917) (Hand, J.) ("Words are not only the keys of persuasion, but the triggers of action . . . ."). 27 SETHI, supra note 1, at 4. 28 City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). 29 Spence v. Washington, 418 U.S. 405, 409 (1974) (per curiam) (deeming an American flag hung upside down with an affixed peace symbol to be sufficiently expressive). 30 Id. at 410-11. The Supreme Court more recently applied this test to a flag-burning statute in Texas v. Johnson, 491 U.S. 397, 404 (1989). 31 To make this determination, one might import copyright doctrine into First Amendment analysis. See Bernstein v. U.S. Dep't of State, 922 F. Supp. 1426, 1436 (N.D. Cal. 1996). Attempts in copyright cases to distill the expressive, and therefore copyrightable, components of source code from the uncopyrightable, functional components, see, e.g., Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 703-12 (2d Cir. 1992), may inform a Spence analysis. The problem with such an approach is that "expression" in the First Amendment context is homonymous, not synonymous, with "expression" in Electronic copy available at: https://ssrn.com/abstract=1271346 Electronic copy available at: https://ssrn.com/abstract=1271346 machine to produce an outcome or allow a human programmer to understand how to produce that outcome. When source code fulfills the former role, it probably is not sufficiently expressive. For example, when a distributor provides encryption source code for download with an Internet browser with the intent that the browser will interpret the code and execute its function without any user intervention, the distributor intends others merely to use computers to carry out the function of the code rather than to read the code themselves. 32 When source code fulfills the latter role, it concisely expresses a mathematical equation or another programming concept to a programmer 33 and is therefore sufficiently expressive for First Amendment purposes. 34 For instance, Junger's code, because it was intended to instruct students -to express concisely a "recipe" to themthereby satisfies the sufficiently expressive prong. The Sixth Circuit did not address the likelihood-of-understanding issue and may have simply presumed that all those who typically view source code -namely computer programmers -understand it. 35 Source code will not satisfy the likelihood-of-understanding prong, however, if it is broadcast to and viewed by the general population, which does not understand source code. This determination is not always easy to make, as the circumstance of Junger's code illustrates. The audience for this posted - ------------------------------------------------------------the copyright sphere. See Burk, supra note 3, at 126 (arguing that the First Amendment protects certain expression, such as flag burning or nude dancing, not deemed expression under the copyright statutes, and that copyright may attach to certain expression, such as obscenity, that the First Amendment does not protect). 32 See, e.g., Tad Lane, JavaScript Observations and Tips: Part I, BITS: COMPUTING & COMM. NEWS, Mar. 1997, at http://www.lanl.gov/projects/ia/library/bits/bits0397.html. In this example only the computer will read the "recipe" described by the source code's instructions. 33 Junger, 209 F.3d at 485. 34 First Amendment speech status has been granted to a magazine article that provided information on constructing a hydrogen bomb, a recipe for a human to follow. See United States v. Progressive, Inc., 467 F. Supp. 990, 996, 1000 (W.D. Wis. 1979) (declaring that a preliminary injunction implicated the magazine's First Amendment rights but granting the injunction due to the compelling government interest in national security), appeal dismissed, 610 F.2d 819 (7th Cir. 1979), reh'g denied, 486 F. Supp. 5 (W.D. Wis. 1979). A traditional recipe serves a functional purpose yet concisely expresses to a human the idea of how to achieve a specified outcome. 35 See Junger, 209 F.3d at 484 (declaring source code the preferred method of communication among computer programmers despite its unintelligibility to the general population). The Supreme Court has not clarified whether there must be a strong likelihood that the audience that typically views a message will understand it or that an audience drawn from the general population will understand it. The Court's dictum that the abstract art of Jackson Pollock is undeniably protected speech, Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, Inc., 515 U.S. 557, 569 (1995), implies that the Court has accorded the likelihood-of-understanding prong the former interpretation, because abstract art is typically incomprehensible to the general public. Cf. Mishkin v. New York, 383 U.S. 502, 508-09 (1966) (asserting in the context of obscenity analysis that courts may consider the response of any special group to which material is targeted, rather than the response of the community as a whole, to determine whether certain material appeals to the audience's "prurient interest"); Peter Meijes Tiersma, Nonverbal Communication and the Freedom of " Speech", 1993 WIS. L. REV. 1525, 1546 (reasoning that American Sign Language is worthy of First Amendment protection as a functional equivalent of a spoken language). [Vol. 114:1813 code was likely to be his students, who were expected to understand the code, as well as other Internet users interested in the code. The Internet users from outside Junger's class could foreseeably encompass both users who would understand the code and those who would download the code for encryption purposes but would not understand it. 36 Given the alternative encryption programs available for download that do not require the time-consuming (and often confusing) compilation that Junger's encryption source code would require before use, 37 users seeking to use an encryption program would be unlikely to turn to Junger's source code; they would not be members of the typical audience for Junger's code. Rather, most of the audience for Junger's source code would consist of users with the capability of understanding its message. Consequently, Junger's source code satisfies the likelihood-of-understanding prong. Although Junger's source code satisfies both prongs of the Spence test, clearly not all code would. As such, a court evaluating a facial challenge to a statute regulating source code should consider whether the statute is substantially overbroad. 38 As most code does not meet the Spence requirements, 39 there are grave doubts as to whether such a challenge could succeed. 40 Because source code varies considerably in its expressive content, a Spence analysis is preferable to the sweeping categorization espoused by the Sixth Circuit. Determinations under this framework will be crucial to proper rulings on the availability of challenges to source code regulation well into the digital future. - ------------------------------------------------------------36 It is highly unlikely that an Internet user would encounter Junger's code except purposefully. Cf. Reno v. ACLU, 521 U.S. 844, 854 (1997) (noting that users rarely encounter sexually explicit material over the Internet accidentally). 37 See, e.g., The Scrambler Web Page, at http://scrmbl-util.virtualave.net (last visited Mar. 16, 2001) (linking visitors to Scrambler version 2.5, encryption software downloadable in one file). 38 Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 615 (1973). A First Amendment facial challenge to a law as a prior restraint is available when the law has "a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of . . . censorship risks." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 759 (1988). 39 Most source code transmitted across the Internet is interpreted by Internet browsers, with no user intervention. See, e.g., Matt Richtel, Microsoft To Pay $20 Million To Settle Lawsuit over Java, N.Y. TIMES, Jan. 24, 2001, at C4; see also Lane, supra note 32 (describing the process). Hence, it fails to satisfy Spence's sufficiently expressive prong. See Parker v. Levy, 417 U.S. 733, 760 (1974) ("This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied."). 40 Cf. Roulette v. City of Seattle, 97 F.3d 300, 303-04 (9th Cir. 1996) (rejecting a facial challenge to an ordinance prohibiting sitting or lying on sidewalks in commercial areas between seven o'clock in the morning and nine o'clock at night because the activity is not integral to or commonly associated with expression despite its occasional qualification as expressive). Electronic copy available at: https://ssrn.com/abstract=1271346 Electronic copy available at: https://ssrn.com/abstract=1271346