## Facts

- Peter D. Junger, a law professor, sought to exchange and publish encryption software and related materials, including via the Internet and communications with foreign nationals.
- Federal Export Administration Regulations (EAR) required licenses for exporting certain encryption software.
- Junger filed a five-count suit alleging: (1) unconstitutional prior restraint, (2) overbreadth and vagueness, (3) content discrimination, (4) infringement of academic freedom and association, and (5) separation-of-powers violations based on executive regulation under the International Emergency Economic Powers Act (IEEPA).
- The government argued the regulations targeted the export of functional encryption software (the “engine” for encrypting data), not ideas or discussion about encryption.
- After discovery, both sides filed cross-motions for summary judgment.

## Issues

1. Whether encryption source code is sufficiently expressive to receive heightened First Amendment protection.
2. Whether the EAR licensing scheme operates as an unconstitutional prior restraint on speech.
3. Whether, assuming First Amendment interests are implicated, the export controls survive intermediate scrutiny in light of national security and foreign policy interests.
4. Whether the regulations are unconstitutionally overbroad, vague, or content-discriminatory.
5. Whether regulation of encryption exports under IEEPA violates separation-of-powers principles.

## Decision

- The court denied Junger’s motion for summary judgment and granted the government’s motion for summary judgment.
- The court held encryption source code is “inherently functional” and the regulations were not directed at any expressive elements of code.
- The court rejected the claim that the licensing regime constituted an unconstitutional prior restraint.
- The court concluded the regulatory scheme, to the extent it implicated expression, survived intermediate scrutiny given national security justifications and its focus on functional export.
- The court rejected the overbreadth, vagueness, content discrimination, academic freedom/association, and separation-of-powers claims.

## Legal Principles

- Functional characteristics of regulated items can affect whether heightened First Amendment scrutiny applies; regulation aimed at functionality rather than expression may be reviewed more deferentially.
- A licensing requirement is not treated as a “prior restraint” triggering strict scrutiny where the court characterizes the regulated subject as a functional tool and the regime as export control rather than censorship.
- Under intermediate scrutiny, a regulation is permissible if it furthers an important governmental interest (including national security/foreign policy) and is sufficiently tailored so it does not burden substantially more speech than necessary.
- Export controls focused on distributing operational encryption software, while leaving academic discussion and printed material outside their reach, were treated as constitutionally permissible on this record.
- Broad delegations and executive action in foreign affairs and national security contexts may be upheld against separation-of-powers challenges where supported by statutory authorization such as IEEPA.

## Conclusion

The district court upheld federal export licensing controls on encryption software, reasoning that encryption source code was primarily functional and that the regulations targeted export of operational software for national security purposes rather than suppressing protected expression, and it entered summary judgment for the government on all claims.


Junger v. Daley, 8 F. Supp. 2d 708 (N.D. Ohio 1998)