## Facts

- Peter D. Junger, a law professor, sought to teach and publish encryption source code, including posting it on the internet and teaching foreign students.
- Federal officials administered Export Administration Regulations (EAR) that restricted “export” of encryption software, including making it available online to foreign persons.
- The district court treated encryption source code as insufficiently expressive for First Amendment protection and upheld the EAR as content-neutral restrictions.
- After the district court decision and during the appeal, the government issued an interim final rule revising the encryption export regulations.

## Issues

1. Whether computer encryption source code constitutes “speech” protected by the First Amendment.
2. If source code is protected expression, how the First Amendment applies to the (amended) encryption export regulations, including the proper level of scrutiny and whether the rules are constitutional on their face or as applied.

## Decision

- The Sixth Circuit reversed summary judgment for the government and remanded.
- The court held that encryption source code is protected by the First Amendment because it communicates information understandable to programmers, even if it also has functional effects.
- The court declined to decide whether the regulations (especially as amended) survived First Amendment scrutiny, leaving that analysis to the district court on remand.

## Legal Principles

- Computer source code, including encryption source code, is expression within the First Amendment’s coverage when it communicates information and ideas to human readers.
- The functional capacity of source code does not, by itself, remove it from First Amendment protection.
- Once expressive coverage is established, government restrictions on dissemination of source code must be evaluated under ordinary First Amendment frameworks, with the applicable scrutiny and validity depending on the regulatory scheme and context.

## Conclusion

The Sixth Circuit recognized encryption source code as protected speech and required the district court to reassess the constitutionality of the revised encryption export controls under First Amendment standards.


Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)