No. 97-16686 __________________________________________________ United States Court of Appeals for the Ninth Circuit DANIEL J. BERNSTEIN Appellee v. UNITED STATES DEPARTMENT OF STATE Appellant __________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA __________________________________________________ BRIEF OF AMICUS CURIAE The Thomas Jefferson Center for the Protection of Free Expression __________________________________________________ Counsel for Amicus Curiae J. Joshua Wheeler Robert M. O'Neil The Thomas Jefferson Center for the Protection of Free Expression 400 Peter Jefferson Place Charlottesville, VA 22911 804-295-4784 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2 ARGUMENT I. THE DISTRICT COURT CORRECTLY HELD THAT ENCRYPTION IS A FORM OF EXPRESSION FULLY PROTECTED BY THE FIRST AMENDMENT . . . . . . . . . . . . . . . . . . . . . . 4 II. ENCRYPTION PROGRAMS ARE FULLY PROTECTED SPEECH BECAUSE THEY FACILITATE AND MAKE POSSIBLE CONFIDENTIAL AND SENSITIVE COMMUNICATIONS . . . . . . . . . . . . . . . . . . . . . . 10 III. THE DISTRICT COURT CORRECTLY HELD THAT DENIAL OF EXPORT LICENSES FOR ENCRYPTION PROGRAMS IMPOSED A PRIOR RESTRAINT . . . . . . . . . . . . . . . . . . . . . . 16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 i TABLE OF AUTHORITIES CASES Page(s) Bantam Books, Inc., et al. v. Sullivan, et al., 16 372 U.S. 58 (1963) Bernstein v. United States, 922 F. Supp. 1426 4,7,8,9 (N.D. Cal. 1996) Bernstein v. United States, 945 F. Supp. 1279 4,17 (N.D. Cal. 1996) Bernstein v. United States, No. C-95-0582, 1997 4,5 U.S. Dist. Lexis 13146 (N.D. Cal. August 25, 1997) Freedman v. Maryland, 380 U.S. 51 (1965) 17 New York Times v. United States, 403 U.S. 713 (1971) 18 Reno v. ACLU, 117 S. Ct. 2329 (1997) 2,5,6 Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961) 17 Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) 5 United States v. O'Brien, 391 U.S. 367 (1968) 8 WIPBS, Inc., et al. v. City of Dallas, et al., 16,17 493 U.S. 215 (1990) Yniguez v. Arizonans for Official English, 69 F.3d 920 2,6,8 (9th Cir. 1995), (en banc) vacated, 117 S. Ct. 1055 (1997) Young v. American Mini Theaters, 427 U.S. 50 (1976) 18 ii TABLE OF AUTHORITIES (continued) OTHER AUTHORITIES Page(s) 1 The Papers of Thomas Jefferson 15 12,13 (Julian P. Boyd, ed., 1950). George Fisher, The American Instructor 11 (Philadelphia, 1748). 12 The Papers of James Madison 360-65 12,13 (Charles F. Hobson et al., eds., 1979). David Kahn, The Codebreakers 171-74 (1967). 11,13 Fletcher Pratt, Secret and Urgent, The Story of Codes 11 and Ciphers 150-53 (1939). 2 The Republic of Letters: The Correspondence Between 14 Thomas Jefferson and James Madison, 1776-1826 750 (James M. Smith, ed., 1995). 24 The Papers of Alexander Hamilton 167-169 15 (Harold C. Syrett, ed., 1963-1987). Ralph E. Weber, Masked Dispatches: Cryptogramy and 12,13,14,15 Cryptology in American History, 1775-1900 93 (1993). Ralph E. Weber, United States Diplomatic Codes and 15 Ciphers, 1775-1938 1078 (1979). iii INTEREST OF AMICUS CURIAE The Thomas Jefferson Center for the Protection of Free Expression, located in Charlottesville, Virginia, is a nonprofit, nonpartisan organization devoted solely to the protection of free speech and free press. The Center has, since its opening in 1990, pursued that mission in various forms, including the filing of amicus curiae briefs in cases involving a variety of free expression issues. The Center has filed briefs in both state and federal courts, including a number in the United States Court of Appeals for the Ninth Circuit. STATEMENT OF THE CASE Amicus curiae accept the Statement of the Case set forth in the brief of Appellee. SUMMARY OF ARGUMENT This case presents, for the first time to an appellate court, the basic issue of whether the encoding or encryption of information or ideas is "speech" within the First Amendment. The district court has three times held that such communication, despite the novelty of its format, is as fully protected under the Constitution as are more traditional media. Amicus urges this Court to affirm that conclusion, for two distinct reasons. On one hand, as the district court consistently and correctly held, computer programs that make encryption possible are themselves fully protected expression. They are as much entitled to such protection as are other languages -- a conclusion which receives strong support from this Court's recent recognition of First Amendment protection for non-English languages in Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995) (en banc), vacated, 117 S. Ct. 1055 (1997). Communication of ideas and information in digital form is, as the Supreme Court ruled in Reno v. ACLU, 117 S. Ct. 2329 (1997), as much protected "speech" as communication in spoken or printed words. The same conclusion follows with equal clarity by a different path which the district court had no need to explore -- that encryption programs are fully protected speech because they facilitate confidential communications. Since the beginning of our nation, cryptography has been extensively used to protect communication of secret and sensitive messages. A careful review of American history demonstrates the degree to which the official communications of the Framers depended upon their ability to encode and decode vital and sensitive messages. Since encryption has for over two centuries made possible such essential communications, its claim to First Amendment protection rests equally firmly on this historical record. Finally, amicus urges affirmance of the district court's conclusion that the challenged licensing scheme imposes an impermissible prior restraint. Licensing that restricts or forbids protected expression comes to court bearing a very heavy burden; it will be sustained only if it satisfies several criteria that the instant export licensing system plainly failed to meet. The presence of national security concerns in no way dispenses with application of those criteria. Nor are there other factors which would warrant treating this licensing scheme differently. Accordingly, since the Government has failed either to meet or to avoid the obligations which the First Amendment imposes on any attempt to restrain protected speech, we urge this Court to affirm the judgment below on the prior restraint issue. I. THE DISTRICT COURT CORRECTLY HELD THAT ENCRYPTION IS A FORM OF EXPRESSION FULLY PROTECTED BY THE FIRST AMENDMENT. The district court's judgment on the status of encryption is as important as it is novel. In Bernstein v. United States, 922 F. Supp. 1426, 1434 (N.D. Cal. 1996) ("Bernstein I"), the district court readily found that a scholarly paper was as fully protected, under the First Amendment, on the subject of encryption as on any other topic -- though an initial administrative ruling had failed even to recognize the protected status of such an essay. More novel, and more difficult, was the status of the encryption program itself. Yet the district court was equally clear that such a digital medium was as fully protected as was the use of any other language to communicate ideas and information. That holding seems indisputably correct. (The two later judgments, Bernstein v. United States, 945 F. Supp. 1279 (N.D. Cal. 1996) ("Bernstein II") and Bernstein v. United States, No. C-95-0582, 1997 U.S. Dist. Lexis 13146 (N.D. Cal. August 25, 1997), relied on the analysis in Bernstein I and did not revisit the basic First Amendment issue.) Two lines of reasoning sustain that conclusion. On one hand, as the Supreme Court has repeatedly recognized, expression is not denied First Amendment protection because it occurs in a novel or unfamiliar form. Tinker v. Des Moines School Dist., 393 U.S. 503, 505 (1969). Had the key terms "speech" and "press" been confined to those forms of communication which the Framers had known and used, much current dissemination of ideas and information would be denied protection simply because of the novelty of its format. The oldest and most durable of the world's guarantees of free expression, the First Amendment, has in fact kept pace with changes in technology and has adapted time and again to new media. Never has that process of adaptation been clearer or more appropriate than it was in the Supreme Court's recent invalidation of the attempt to ban "indecency" on the Internet. Reno v. ACLU, 117 S. Ct. 2329 (1997). After analyzing and rejecting several factors the Government claimed would limit protection of speech in cyberspace, Justice Stevens concluded: "Our cases provide no basis for qualifying the level of First Amendment scrutiny that should apply to this medium." Id. at 2344. That statement removes any doubt whether expression in digital form deserves full First Amendment protection -- an issue that had been in doubt in some quarters because of the uncertain treatment other new communications media received when first tested in court. Thus, while speech on licensed broadcasting, for example, remains less than fully protected, digital expression may not be relegated to such a second-class status. That judgment is vital to the central issue of the present case. What the high Court has said about expression on the Internet is directly applicable to digital speech in the closely analogous context of encryption. Also apposite is this Court's recent ruling on the status of language as protected speech. In Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995), vacated, 117 S. Ct. 1055 (1997), this Court refused to grant less than full protection to communication in languages other than English. In so doing, the Court addressed and rejected several of the arguments the Government has advanced in this case and which the district court has also rejected. What Judge Patel did on that vital issue was simply to follow this Court's clear direction in holding that there existed no "meaningful difference . . . between computer language, particularly high-level languages . . . and German or French." Bernstein I, 922 F. Supp. at 1435. Thus, the first and most basic reason why the district court was right in finding encryption to be well within the First Amendment seems almost tautological in its clarity -- it is protected speech because it is "speech" by any reasonable definition, even though it does not involve words that can immediately be read or heard. The Government argues, nonetheless, that full protection does not extend to the expression involved in this case. No suggestion has been made that the speech before the court is legally obscene, or defamatory, or involves incitement, or falls outside the realm of protection for any other such recognized reason. Instead, the Government invokes several other considerations which, in its view, cause such digital material to fall beyond the bounds of "speech" for First Amendment purposes and thus to forfeit constitutional protection. In Bernstein I, Judge Patel systematically analyzed and rejected each of these contentions, holding that encryption was indeed protected expression despite its unfamiliar format. While recognizing that cryptographic programs might entail some communicative elements, the Government initially claimed that such material was more like regulable "conduct" than protected "speech." Id. at 1436. Thus, under cases like United States v. O'Brien, 391 U.S. 367 (1968), a lower level of First Amendment scrutiny should apply. The district court took a quite different view of this digital material: "Bernstein's encryption system is written, albeit in computer language rather than English. . . . It would be convoluted indeed to characterize Snuffle as conduct in order to determine how expressive it is when, at least formally, it appears to be speech." Id. at 1435. That conclusion seems compelled by this Court's view of language in Yniguez. There, too, an analogy had been drawn to "conduct;" this Court, en banc, was "unpersuaded by the comparison between speaking languages and burning flags," and thus soundly rejected the "conduct" claim. Yniguez, 69 F.3d at 934-36. The Government in this case has also argued that encryption programs fall outside the First Amendment because their nature and purpose are more functional than communicative. The district court found that distinction equally unconvincing: "Whether source code and object code are functional is immaterial to the analysis. . . . The functionality of a language does not make it any less like speech." Bernstein I, 922 F. Supp. at 1435. Later, the court below cautioned that the Government's contention, logically extended, "assumes that once language allows one to actually do something, like play music or make lasagna, the language is no longer speech." The logic of that claim, concluded Judge Patel, "is dubious at best." Support for it, she noted, "in First Amendment law is nonexistent." Id. at 1436. Despite the clarity and conviction of these rulings, the district court in Bernstein I assumed for purpose of argument that the O'Brien conduct standard might apply. Even if the encryption program were to be analyzed as expressive conduct rather than (as the court had already ruled) pure speech, the licensing scheme would nonetheless fail to meet even the diminished level of scrutiny that would apply to such a case. The denial of export licenses would still amount to an unconstitutional prior restraint -- an issue on which we shall focus in Section III. In the district court's view, therefore, it was important, if not essential, that encryption be treated as pure speech. Such a finding was central to the analysis below. In this very first appellate review of the status of encryption programs, it is a view we urge this Court to affirm. II. ENCRYPTION PROGRAMS ARE FULLY PROTECTED SPEECH BECAUSE THEY FACILITATE AND MAKE POSSIBLE CONFIDENTIAL AND SENSITIVE COMMUNICATIONS. The district court's judgment on the status of encryption is correct for another and different reason which that court had no need to consider -- that a medium which is vital to the exercise of free speech may itself claim First Amendment protection, unless such protection is barred by one of the narrow exceptions we have already reviewed (and which are not apposite here). The record of history eloquently supports this view. Since the earliest days of our nation, encoding or cryptography has been vital to the conduct of confidential and sensitive communications. That record also shows beyond doubt that many of those who framed the First Amendment guarantees of free speech and press relied heavily on the use of cryptography -- that they equated the ability to encode and decode certain communications with the capacity to communicate. It would be ironic, against such overwhelming historic evidence, if courts were now to withhold First Amendment protection from the very medium that made free speech possible among those who shaped the constitutional guarantees we invoke today. At the dawn of the American nation, as well as in seventeenth and eighteenth century England, codes, ciphers and other forms of secret communication were extensively used. Many prominent British authors and public figures relied extensively upon cryptography to protect sensitive or confidential communications. For example, the noted diarist Samuel Pepys developed a cipher technique for his diaries so complex and so sophisticated that it was not broken until the twentieth century. Fletcher Pratt, Secret and Urgent, The Story of Codes and Ciphers 150-53 (1939). In London of the 1720s, there was a constant tension between those who sought to encode correspondence and the deciphering activities of the Royal Mail seeking to decode such communications. David Kahn, The Codebreakers 171-74 (1967). In colonial America, secret communications were widely used to thwart the efforts of British agents and censors. In 1748, Benjamin Franklin published George Fisher's text on the use of codes, ciphers and secret writings. George Fisher, The American Instructor (Philadelphia, 1748). Franklin was not only a publicist and user of encoding, but also a developer of cryptographic systems, including an ingenious "homophonic substitution cypher" which aided his correspondence and that of fellow patriots. Kahn, supra, at 185. As conflict between the crown and the American colonies intensified, the need for such devices to ensure confidentiality magnified progressively and dramatically. David W. Gaddy, Introduction in Ralph E. Weber, Masked Dispatches: Cryptograms and Cryptology in American History, 1775-1900 (1993). The role and views of Thomas Jefferson prove particularly instructive on this, as on so many issues. In 1764, a young Jefferson suggested to his friend John Page the use of a 100 year old English cipher to encode personal letters in order to protect information about Jefferson's fruitless pursuit of a young woman. 1 The Papers of Thomas Jefferson 15 (Julian P. Boyd, ed., 1950) [hereinafter Jefferson Papers]. Later, during the Revolutionary War, Jefferson extensively used encryption to protect his personal notes, to convey confidential reports and information, and to protect sensitive political information. See generally id. After the Revolution, while serving as ambassador to France, Jefferson carried on an extensive encoded correspondence with James Madison on such vital matters as the framing of the Bill of Rights. One especially significant letter from Jefferson to Madison, in August, 1789, relied on encryption; its subject matter included the proposed text of what was to become the First Amendment. 12 The Papers of James Madison 360-65 (Charles F. Hobson et al., eds., 1979) [hereinafter Madison Papers]. The specific comments about the text that became the free speech and press clause appear in a paragraph immediately following a partially enciphered paragraph. Id. Such practices were as much the rule as the exception; correspondence throughout the Jefferson Papers is replete with evidence of coding, ciphers and other forms of secret communication. See generally, Jefferson Papers, supra. Jefferson was not only an extensive user of encryption, but (like Franklin) also a developer of cryptographic systems. One especially sophisticated device -- a "cipher cylinder" -- which he fashioned shortly before he became president was not surpassed for military communication purposes until the 1920s and remained in use by the United States Navy as late as 1967. See Weber, supra, at 83; Kahn, supra, at 192-95. James Madison, too, relied heavily on encoding in his communications. Apart from matters of state where, for example, he used a sophisticated cipher to inform Jefferson of his intent to introduce a Bill of Rights, Madison also encrypted highly sensitive personal communications. See Madison Papers, supra. Notable among his mementoes are letters written in 1783, in which Madison freely discussed (but wished others not to learn about) his unsuccessful courtship of one Catherine Floyd. See Weber, supra, at 83. Especially revealing is the role that cryptography played in facilitating communication as partisan differences emerged in the new nation. Jefferson and Madison corresponded extensively during the administration of John Adams, sharing mounting concern about the president's policies. 2 The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison, 1776-1826 750 (James M. Smith, ed., 1995). James M. Smith, after studying that correspondence at length, concluded that "the increasing hostility to the excesses of the French Revolution and the stresses and strains of organizing an opposition party forced Madison and Jefferson to be more circumspect about letters that they put into the public mail. . . . By August [1793], they resorted to their 1785 cipher for encoding sensitive passages." Id. There is evidence of extensive reliance on encryption across the political spectrum. Alexander Hamilton and his political associates used cryptography for secret communications during the early years of the nineteenth century. In January, 1800, in fact, Hamilton wrote to Rufus King a partial report on a sensitive issue, noting that he would await an adequately protective cipher before he completed the dispatch. 24 The Papers of Alexander Hamilton 167-169 (Harold C. Syrett, ed., 1963-1987). Aaron Burr, too, was a frequent user of encoding. He wrote a "political code" in 1801 to Congressman Edward Livingston. Ralph E. Weber, Masked Dispatches: Cryptogramy and Cryptology in American History, 1775-1900 93 (1993). Several years later Burr and his allies used secret, enciphered correspondence to further their scheme to establish a new government in what was then Spanish territory. Id. History of the early years of the Republic is, in fact, replete with evidence of extensive reliance on cryptography for the most sensitive of communications. Many messages of great public importance would almost certainly not have been sent if they could not have been encoded by the sender, decoded by the recipient, and during transmission be kept safe from the eyes and ears of all others. As Ralph E. Weber concludes of this period: "Because of foreign and domestic threats to liberty and freedom, codes and ciphers became integral elements in American public and private communications." Ralph E. Weber, United States Diplomatic Codes and Ciphers, 1775-1938 1078 (1979). There can be no doubt about the critical importance of cryptography to the very people who shaped the guarantees of the First Amendment -- indeed, in one instance, to the very text by which Thomas Jefferson conveyed to James Madison crucial comments on that charter of liberty. It would be anomalous if, in the late twentieth century, courts were to deny protection to the very process of communication that was so vital to the early establishment of expressive freedom in our Bill of Rights. Thus, for a reason the district court had no occasion to reach, the judgment below was eminently sound and should be affirmed. III. THE DISTRICT COURT CORRECTLY HELD THAT DENIAL OF EXPORT LICENSES FOR ENCRYPTION PROGRAMS IMPOSED A PRIOR RESTRAINT. The district court, after finding encryption to be protected speech, correctly held that refusal of an export license because of a program's content was a prior restraint. That judgment fully reflects applicable First Amendment principles. The Supreme Court has never wavered in its conviction that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc., et al. v. Sullivan, et al., 372 U.S. 58, 70 (1963). See also WIPBS, Inc., et al. v. City of Dallas, et al., 493 U.S. 215, 225 (1990). The administrative denial of a license or permit must, at the very least, meet the conditions which the Supreme Court established in Freedman v. Maryland, 380 U.S. 51 (1965) -- that the censor bears the burden of proof, that any period of restraint must be brief, and that a prompt and final judicial determination must be available to a person who challenges the denial. The export licensing system that is the focus of this appeal lacks some, if not all, of the Freedman standards, a deficiency which led Judge Patel to conclude in Bernstein II: "[T]he ITAR scheme, a paradigm of standardless discretion, fails [the Freedman test] on every count." Bernstein II, 945 F. Supp. 1279, 1289 (N.D. Cal. 1996). As the district court elaborated later: "[The licensing scheme] fails to provide for a time limit on the licensing decision, for prompt judicial review and for a duty on the part of the ODTC to go to court and defend a denial of a license . . ." Id. at 1290. While licensing the export of encryption programs is obviously different from licensing motion pictures, those differences argue for greater, not lesser, protection in this case. Motion pictures have always been viewed as proper subjects for municipal review and licensing -- Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961) -- a reality which underlies the Freedman case and others that have applied its tripartite standard to review of licensing systems. By contrast, the material at issue in this case -- encryption programs -- claims a fuller measure of First Amendment protection, as the district court properly held. None of the factors that have led courts to subject regulation of motion pictures and other media to more relaxed scrutiny -- for example, "secondary effect" on the surrounding community, Young v. American Mini Theaters, 427 U.S. 50 (1976) -- could possibly be invoked with respect to cryptographic programs. Freedman thus represents the most tolerant view of the licensing function that could properly apply to a content-based license denial. Indeed, a persuasive case could be made that the most appropriate standard for reviewing what is clearly a prior restraint would be that of New York Times v. United States, 403 U.S. 713 (1971) -- under which the challenged licensing procedure would surely fail. Yet even under the lesser Freedman standard, the district court detailed the specific ways in which this licensing system falls far short of meeting strictures the Supreme Court has imposed to check government's power to grant or withhold permits for expressive activity. Accordingly, we urge this Court to affirm the district court's judgment that the export licensing scheme, as applied to protected expression, is a constitutionally invalid prior restraint. CONCLUSION For the forgoing reasons, amicus respectfully urges this Court to affirm the judgment of the district court. Respectfully submitted, ______________________________ J. Joshua Wheeler Robert M. O'Neil The Thomas Jefferson Center for the Protection of Free Expression Counsel for Amicus Curiae CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the foregoing brief is proportionally spaced, has a type face of 14 points and contains 3380 words, according to the word processing system used to prepare this brief. In addition, the brief does not have an average of more than 280 words per page, including footnotes and quotations. ______________________________ J. Joshua Wheeler PROOF OF SERVICE STATE OF VIRGINIA ) Brief of ) Amicus Curiae CITY OF CHARLOTTESVILLE ) I am employed in the City of Charlottesville, State of Virginia and am admitted to practice in the Ninth Circuit. I am over the age of 18 and not a party to the within action; my business address is 400 Peter Jefferson Place, Charlottesville, Virginia 22911-8691. On November ___, 1997, I served two copies of the foregoing document(s) described as brief of Amicus Curiae on the interested parties in this action by placing true copies thereof in sealed envelopes addressed as follows: Cindy A. Cohn, Esq. Scott R. McIntosh, Esq. McGlashan & Sarrail U.S. Department of Justice 117 Bovet Road, Sixth Floor Civil Division, Appellate Staff San Mateo, California 94402 601 D Street, N.W., Room 9550 Washington, D.C. 20530-0001 ___ BY FEDERAL EXPRESS: I deposited such envelope, postage prepaid, with the Federal Express office in Charlottesville, Virginia, for delivery on November 10, 1997. I declare under penalty of perjury under the laws of the State of Virginia that the above is true and correct. Executed on November ___, 1997 at Charlottesville, Virginia. ______________________________ J. Joshua Wheeler