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Open Software & Constitutionally Protected Speech

I've tentatively offered Peter Junger our (Debian's and SPI's) support
in the form of an amicus brief in his crypto export lawsuit.  See the
correspondence below (the first message is Peter's post to cola).

This posting is just to keep you informed.  I trust that noone has an
objection to us involving ourselves in this.

Thanks,
Ian.
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I am sending this message, at the suggestion of Eric Raymond, to both
the slashdot news service at www.slashdot.org and comp.os.linux.announce
at <linux-announce@NEWS.ORNL.GOV>.

I am the plaintiff in the case of Junger v. Daley in which I seek to
enjoin the government from enforcing the export regulations that
require one to get a license before publishing cryptographic software
on the Internet or the World Wide Web or transmitting it outside the
United States by electronic means.  The basis of the suit is the claim
that the writing and publication of software is speech that is protected
by the First Amendment to the United States Constitution.

I am afraid that most people believe that the importance of Junger v. 
Daley turns on the fact that the encryption of electronic messages is
essential if we our to retain any vestige of privacy in electronic
communications, and I, of course, agree that this is an important issue.
I have always taken the position, however, that the true issue in my
case, and in the Bernstein case which raises similar issues, is whether
the First Amendment protects the writing, publication, and communication
of software in general, not just encryption software.

As you probably know, in the Bernstein case Judge Patel of the Northern
District of California held that software is speech that is protected
by the First Amendment and the government has appealed that decision to
the Ninth Circuit Federal Court of Appeals.

On the other hand, in my case Judge Gwin of the Federal District Court of 
the Northern District of Ohio has recently held that software is not
protected by the First Amendment because it is a ``functional device''
like a telephone circuit, saying:

     The Bernstein court's assertion that ``language equals protected
     speech'' is unsound. ``Speech'' is not protected simply because we
     write it in a language. Instead, what determines whether the First
     Amendment protects something is whether it expresses ideas....

     ``Fighting words'' are written or spoken in a language. While spoken
     or written in language, they are excluded from First Amendment
     protection. See, e.g., Sandul v. Larion, 119 F.3d 1250,1255 (6th
     Cir.), cert. dismissed, 118 S. Ct. 439 (1997) (observing that words
     ``which by their very utterance inflict injury or tend to incite
     an immediate breach of the peace'' are not protected because they
     ``are no essential part of any exposition of ideas ....'') (quoting
     Chaplinsky, 315 U.S. at 572. Similarly, commercial advertisements
     are written in a language, but are afforded a lesser level of
     protection under the First Amendment. See Central Hudson Gas &
     Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557,
     566 (1980) (acknowledging that the government may ban forms
     of communication more likely to deceive the public than to
     inform). Furthermore, the court in Bernstein I misunderstood the
     significance of source code's functionality. Source code is ``purely
     functional,'' ... in a way that the Bernstein Court's examples of
     instructions, manuals, and recipes are not. Unlike instructions,
     a manual, or a recipe, source code actually performs the function
     it describes. While a recipe provides instructions to a cook,
     source code is a device, like embedded circuitry in a telephone,
     that actually does the function of encryption.

     While finding that encryption source code is rarely expressive, in
     limited circumstances it may communicate ideas. Although it is all
     but unintelligible to most people, trained computer programmers can
     read and write in source code. Moreover, people such as Plaintiff
     Junger can reveal source code to exchange information and ideas
     about cryptography.

     Therefore, the Court finds that exporting source code is conduct that
     can occasionally have communicative elements. Nevertheless, merely
     because conduct is occasionally expressive, does not necessarily
     extend First Amendment protection to it. As the Supreme Court has
     observed, ``[i]t is possible to find some kernel of expression
     in almost every activity--for example, walking down the street or
     meeting one's friends at the shopping mall--but such a kernel is not
     sufficient to bring the activity within the protection of the First
     Amendment.'' City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

Now you know, and I know, that Judge Gwin was wrong in his conclusion.  I
am, however, more and more convinced that most people, and most legislators
and most judges, would tend to agree with Judge Gwin, and with the 
government, which argued in my case that:

    The linchpin of plaintiff's First Amendment argument is that
    ``software is speech.'' This notion ...
     has unknown and potentially harmful implications. If it were
     necessary to decide the matter, the more prudent judicial finding
     would be that encryption software, whatever its informational
     value, is properly treated as a functional item. The common sense
     understanding of software -- as recognized by courts -- is as a set
     of instructions to a computer microprocessor that enables a computer
     to function a certain way. The common use of software is to perform
     tasks on a computer, ranging from word-processing, electronic mail,
     exploring the Internet, playing games, or encrypting data.

     Much software, however, is designed to cause substantial
     harm. Software exists to spread and install ``viruses'' that can
     destroy computer hard-drives or the files they contain. Software
     also exists to ``hack'' into secure computer systems, such as
     banking and telephone systems. Such software can be used to invade
     privacy, commit fraud, and substantially disrupt or even endanger
     people's lives -- not because it contains a harmful ``idea'' but
     because it can do harmful things. Those who transmit such software
     cannot validly claim they were merely distributing an ``idea'' or
     ``speech'' when that ``speech'' destroyed a computer hard-drive,
     shut down a phone system, or hacked into a bank account.

It doesn't take much imagination to realize what a threat this view is to
the Open Software movement, which, as Eric Raymond has pointed out
is dependent on the free exchange of ideas, usually in the form of
freely available source code for computer programs, over the Internet.
It is already the case that programmers in the United States may not
take part in the development of open cryptographic software, since they
may not distribute their versions of the code over the Internet; consider
the case of GNU Privacy Guard, for example.  And over the past year,
Congress has given serious consideration to laws that would make it
a crime to ``manufacture'' encryption software without a back door
permitting government access to encrypted data or to ``manufacture''
software that could be used in commiting copyright violations, where, of
course, ``manufacture'' means simply ``write''.

I have created an electronic discussion list called SoftSpeech to discuss 
the issues raised by Judge Gwin's decision, and I would like to invite 
you to subscribe and join in our discussions.  Information about the
discussion list, including how to subscribe, is available at the 
SoftSpeech web site: <http://samsara.law.cwru.edu/~sftspch/>.

I also hope that you will encourage others in the Open Software movement
to join in our discussions and, more importantly, to express their 
concern about the need for constitutional protection for the writings
of programmers just as for other writings.  There is an important
educational and public relations job to be done here. 

Finally, we will be filing a notice of appeal shortly in my case, and my 
lawyers assure me that it would be most helpful if some of
the organizations that support the Open Software movement, like 
The Linux Journal and RedHat, to give just two examples, would be
willing to submit an amicus brief supporting the claim to First Amendment
protection for software.  There were several amicus briefs filed in
the Bernstein case, and we expect that the same amici will file briefs
in support of our position in my appeal.  But none of these briefs
discussed the issue from the point of view of the Open Software
movement.  

I would welcome your suggestions as to organizations and individuals
who might be willing to join in signing such an amicus brief.  Everyone
here knows, of course, about Open Software and how important it is, and
is going to be, for the healthy development of the Internet and the Web
and the entire world economy in this Information Age.  Most judges on
the other hand will not have heard about it yet.  The purpose of amicus
briefs---an ``amicus'' is a ``friend of the court''---is to inform the
court of issues---like the importance of free speech for programmers to 
the development of Open Software---in which the ``friend'' has special
interest and expertise.

- --
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   



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--- Begin Message --- 
Ian Jackson - Debian Project Leader writes:

: Peter D. Junger writes ("Open Software & Constitutionally Protected Speech"):
: ...
: > Finally, we will be filing a notice of appeal shortly in my case, and my 
: > lawyers assure me that it would be most helpful if some of
: > the organizations that support the Open Software movement, like 
: > The Linux Journal and RedHat, to give just two examples, would be
: > willing to submit an amicus brief supporting the claim to First Amendment
: > protection for software.  There were several amicus briefs filed in
: > the Bernstein case, and we expect that the same amici will file briefs
: > in support of our position in my appeal.  But none of these briefs
: > discussed the issue from the point of view of the Open Software
: > movement.  
: 
: Would it be helpful if the Debian Project and/or Software in the
: Public Interest were to submit such an amicus brief ?

Yes, it would help very much.  But it would also help were the
Debian Project and/or Software in the Public Interest were to
join some other organizations with similar interests in signing
(and submitting) such a brief.  Would you be comfortable joining
in a brief with the Free Software Foundation?

: (In case you are not aware, Debian is the only major Linux
: distribution maintained by a group of volunteers across the 'net.  We
: currently have around 300 unpaid developers.  SPI is an umbrella
: organisation created to handle (for Debian and other similar
: organisations or efforts) things that need legal personality, such as
: tax-exempt donations, holding intellectual property, etc.)
: 
: If so, please do let me know.  It would be helpful to know what
: portions of our experience would be most convincing to share with the
: court.  I presume we should get a lawyer to draft or look over our
: brief ?

I am forwarding your message and this one to my legal attack team.  They
have a better idea than I do of exactly what is needed and they may be
able to find a lawyer, or a law firm, who would be interested in 
preparing the brief for you as a pro bono project.

Things are a little disorganized right now, so it might be a little while
before they, or I, get back to you.  We have to file a notice of appeal
within the next week or so and only then will we even begin thinking about
the actual briefing schedule, so there is going to be plenty of time
in which to get the briefs written.

As to what would be relevant in your organization's experience: the main
point would be that you have a large team of developers in many
parts of the world who develop important software by exchanging code
over the Internet.  (If you have had any problems with developing
crypto or security packages because of U.S. Export controls, it would
be helpful to explain that to the court, but if you haven't had such
problems your partaking in an amicus brief could still be most helpful.)

Do you have any numbers on how many people use the Debian distribution
or parts of it?  An explanation of the importance of the availability
of source code to software users could also be very helpful.

Thank you for your kind and helpful offer.

We'll be in touch.

Peter

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

--- End Message ---
--- Begin Message --- 
Peter D. Junger writes ("Open Software & Constitutionally Protected Speech"):
...
> Finally, we will be filing a notice of appeal shortly in my case, and my 
> lawyers assure me that it would be most helpful if some of
> the organizations that support the Open Software movement, like 
> The Linux Journal and RedHat, to give just two examples, would be
> willing to submit an amicus brief supporting the claim to First Amendment
> protection for software.  There were several amicus briefs filed in
> the Bernstein case, and we expect that the same amici will file briefs
> in support of our position in my appeal.  But none of these briefs
> discussed the issue from the point of view of the Open Software
> movement.  

Would it be helpful if the Debian Project and/or Software in the
Public Interest were to submit such an amicus brief ?

(In case you are not aware, Debian is the only major Linux
distribution maintained by a group of volunteers across the 'net.  We
currently have around 300 unpaid developers.  SPI is an umbrella
organisation created to handle (for Debian and other similar
organisations or efforts) things that need legal personality, such as
tax-exempt donations, holding intellectual property, etc.)

If so, please do let me know.  It would be helpful to know what
portions of our experience would be most convincing to share with the
court.  I presume we should get a lawyer to draft or look over our
brief ?

Thanks,
Ian.

--- End Message ---
--- Begin Message --- 
Peter D. Junger writes ("Re: Open Software & Constitutionally Protected Speech "):
...
> Yes, it would help very much.  But it would also help were the
> Debian Project and/or Software in the Public Interest were to
> join some other organizations with similar interests in signing
> (and submitting) such a brief.  Would you be comfortable joining
> in a brief with the Free Software Foundation?

Yes, I think we would, both SPI and Debian.  I'll cause the matter to
be discussed within our organisations.  Someone should talk to the
FSF, who I'm sure would be very interested.

...
> I am forwarding your message and this one to my legal attack team.  They
> have a better idea than I do of exactly what is needed and they may be
> able to find a lawyer, or a law firm, who would be interested in 
> preparing the brief for you as a pro bono project.

Right.  SPI (as the entity which handles Debian's legal affairs) is in
a state of transition at the moment - we've just had a change of board
and we're considering changing our counsel.

I'll contact the guy who's dealing with the possible new laywers and
see if they'd be interested in this.

> Things are a little disorganized right now, so it might be a little while
> before they, or I, get back to you.  We have to file a notice of appeal
> within the next week or so and only then will we even begin thinking about
> the actual briefing schedule, so there is going to be plenty of time
> in which to get the briefs written.

Right.

> As to what would be relevant in your organization's experience: the main
> point would be that you have a large team of developers in many
> parts of the world who develop important software by exchanging code
> over the Internet.  (If you have had any problems with developing
> crypto or security packages because of U.S. Export controls, it would
> be helpful to explain that to the court, but if you haven't had such
> problems your partaking in an amicus brief could still be most helpful.)

We have had terrible problems with crypto and security packages.  No
US-based maintainer can work on them, and even then we have to
distribute them separately from our main distribution to avoid having
them uploaded to a US site and then downloaded again by the FTP
mirrors.

> Do you have any numbers on how many people use the Debian distribution
> or parts of it?  An explanation of the importance of the availability
> of source code to software users could also be very helpful.

No good numbers, no.  I shall try to find some guesses.

> Thank you for your kind and helpful offer.

Not at all; thank you for your help to the whole community in fighting
this fight.

Ian.

--- End Message ---
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