UNITED STATES DEPARTMENT OF
JUSTICE; UNITED STATES
DEPARTMENT OF COMMERCE;
DEPARTMENT OF STATE; UNITED STATES
DEPARTMENT OF DEFENSE; UNITED
STATES ARMS CONTROL AND
DISARMANENT AGENCY; NATIONAL
SECURITY AGENCY; UNITED STATES
No. 97-16686
DEPARTMENT OF ENERGY; CENTRAL
D.C. No.
INTELLIGENCE AGENCY; MADELINE E.
CV-97-00582
ALBRIGHT, United States Secretary of
MHP
State; WILLIAM M. DALEY, United
States Secretary of Commerce; OPINION
WILLIAM COHEN, United States
Secretary of Defense; KENNETH A.
MINIHAN, Director, United States
National Security Agency; JOHN B.
HOLUM, Director, United States Arms
Control and Disarmanent Agency;
WILLIAM G. ROBINSON; GARY M.
ONCALE; AMBASSADOR MICHAEL
NEWLIN; CHARLES RAY; MARK KORO;
GREG STARK; DOES 1-100,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Marilyn Hall Patel, District Judge, Presiding
4215
Argued and Submitted
December 8, 1997--San Francisco, California
Filed May 6, 1999
Before: Myron H. Bright,* Betty B. Fletcher, and
Thomas G. Nelson, Circuit Judges.
Opinion by Judge B. Fletcher; Concurrence by
Judge Bright; Dissent by Judge T.G. Nelson
4251 COUNSEL
Scott R. McIntosh (argued), Douglas N. Letter, United States
Department of Justice, Washington, D.C., for the defendants-
appellants.
Cindy A. Cohn (argued), McGlashan & Sarrail, San Mateo,
California, and Lee Tien, Berkeley, California, for the
plaintiff-appellee.
Ivan K. Fong, Covington & Burling, Washington, D.C., for
amicus curiae Electronic Privacy Information Center; Ameri-
can Civil Liberties Union; American Civil Liberties Union of
Northern California; Center For Democracy and Technology;
Computer Professionals for Social Responsibility; Economic
Strategy Institute; Free Congress Research and Education
Foundation; Human Rights Watch; Independence Institute;
International Information System Security Certification Con-
sortium; Internet Mail Consortium; Internet Society; National
Association of Manufacturers; Privacy International; U.S.
Public Policy Committee of the Association for Computing;
Dr. Whitfield Diffie; Dr. Peter Neumann; and Dr. Ronald
Rivest.
Garrett Epps, University of Oregon School of Law, Eugene,
Oregon, for amicus curiae Silicon Valley Software Industry
Coalition; Professor Keith Aoki; Professor Margreth Barrett;
Professor James Boyle; Professor Garrett Epps; Professor
Peter Jaszi; Professor David Lange; and Professor Eugene
Volokh.
Brian Conboy, Wilkie Farr & Gallagher, Washington, D.C.,
for amicus curiae Maynard Anderson; D. James Bidzos;
4221
National Computer Security Association; Mark Rasch; RSA
Data Security, Inc.; Dr. Eugene Spafford; and Dr. Ross
Stapleton-Gray.
J. Joshua Wheeler, Charlottesville, Virginia, for amicus
curiae Thomas Jefferson Center for the Protection of Free
Expression.
Richard D. Marks, Vinson & Elkins, Washington, D.C., for
amicus curiae Association for the Advancement of Science.
The government defendants appeal the grant of summary
judgment to the plaintiff, Professor Daniel J. Bernstein
("Bernstein"), enjoining the enforcement of certain Export
Administration Regulations ("EAR") that limit Bernstein's
ability to distribute encryption software. We find that the
EAR regulations (1) operate as a prepublication licensing
scheme that burdens scientific expression, (2) vest boundless
discretion in government officials, and (3) lack adequate pro-
cedural safeguards. Consequently, we hold that the challenged
regulations constitute a prior restraint on speech that offends
the First Amendment. Although we employ a somewhat nar-
rower rationale than did the district court, its judgment is
accordingly affirmed.
BACKGROUND
A. Facts and Procedural History
Bernstein is currently a professor in the Department of
Mathematics, Statistics, and Computer Science at the Univer-
sity of Illinois at Chicago. As a doctoral candidate at the Uni-
4222
versity of California, Berkeley, he developed an encryption
method -- "a zero-delay private-key stream encryptor based
upon a one-way hash function"1 -- that he dubbed "Snuffle."
Bernstein described his method in two ways: in a paper con-
taining analysis and mathematical equations (the "Paper") and
in two computer programs written in "C," a high-level com-
puter programming language ("Source Code"). Bernstein later
wrote a set of instructions in English (the "Instructions")
explaining how to program a computer to encrypt and decrypt
data utilizing a one-way hash function, essentially translating
verbatim his Source Code into prose form.
Seeking to present his work on Snuffle within the academic
and scientific communities, Bernstein asked the State Depart-
ment whether he needed a license to publish Snuffle in any of
its various forms. The State Department responded that Snuf-
fle was a munition under the International Traffic in Arms
Regulations ("ITAR"), and that Bernstein would need a
license to "export" the Paper, the Source Code, or the
Instructions.2 There followed a protracted and unproductive
series of letter communications between Bernstein and the
government, wherein Bernstein unsuccessfully attempted to
_________________________________________________________________
1 The term "hash function" describes a function that transforms an input
into a unique output of fixed (and usually smaller) size that is dependent
on the input. For some purposes (e.g. error checking, digital signatures),
it is desirable that it be impossible to derive the input data given only the
hash function's output -- this type of function is known as a "one-way hash function." Hash functions have many uses in cryptography and com-
puter science, and numerous one-way hash functions are widely known.
"Zero-delay" means that Snuffle can be used for interactive communica-
tions because it encrypts and decrypts on a character-by-character basis --
the users need not complete an entire message before encrypting and send-
ing.
2 In June 1995, after Bernstein initiated this suit, the State Department
clarified its earlier determination, explaining that while ITAR did restrict
the Source Code and the Instructions, it did not restrict the Paper.
4223
determine the scope and application of the export regulations
to Snuffle.3
Bernstein ultimately filed this action, challenging the con-
stitutionality of the ITAR regulations. The district court found
that the Source Code was speech protected by the First
Amendment, see Bernstein v. Department of State , 922
F. Supp. 1426 (N.D. Cal. 1996) ("Bernstein I"), and subse-
quently granted summary judgment to Bernstein on his First
Amendment claims, holding the challenged ITAR regulations
facially invalid as a prior restraint on speech, see Bernstein v.
Department of State, 945 F. Supp. 1279 (N.D. Cal. 1996)
("Bernstein II").
In December 1996, President Clinton shifted licensing
authority for nonmilitary encryption commodities and tech-
nologies from the State Department to the Department of
Commerce. See Exec. Order No. 13,026, 61 Fed. Reg. 58,767
(1996). The Department of Commerce then promulgated reg-
ulations under the EAR to govern the export of encryption
technology, regulations administered by the Bureau of Export
Administration ("BXA"). See 61 Fed. Reg. 68,572 (1996)
(codified at 15 C.F.R. Pts. 730-74). Bernstein subsequently
amended his complaint to add the Department of Commerce
as a defendant, advancing the same constitutional objections
as he had against the State Department. The district court, fol-
lowing the rationale of its earlier Bernstein opinions, once
again granted summary judgment in favor of Bernstein, find-
ing the new EAR regulations facially invalid as a prior
restraint on speech. See Bernstein v. Department of State, 974
_________________________________________________________________
3 Bernstein notes that his difficulties with the State Department are by no means unique. Declarations provided by Bernstein demonstrate ongo-
ing suppression of academic publication by the State Department under
ITAR. See Demberger Decl. (found in violation of ITAR for posting
encryption program on the internet); Junger Decl. (stated that ITAR
caused him to censor publication of his work for fear of violating the regu-
lations); Zimmerman Decl. (target of a criminal investigation for publish-
ing encryption software on the internet).
4224
F. Supp. 1288 (N.D. Cal. 1997) ("Bernstein III"). The district
court enjoined the Commerce Department from future
enforcement of the invalidated provisions, an injunction that
has been stayed pending this appeal.
B. Overview of Cryptography
Cryptography is the science of secret writing, a science that
has roots stretching back hundreds, and perhaps thousands, of
years. See generally DAVID KHAN, THE CODEBREAKERS (2d ed.
1996). For much of its history, cryptography has been the
jealously guarded province of governments and militaries. In
the past twenty years, however, the science has blossomed in
the civilian sphere, driven on the one hand by dramatic theo-
retical innovations within the field, and on the other by the
needs of modern communication and information technolo-
gies. As a result, cryptography has become a dynamic aca-
demic discipline within applied mathematics. It is the
cryptographer's primary task to find secure methods to
encrypt messages, making them unintelligible to all except the
intended recipients:
Encryption basically involves running a readable
message known as "plaintext" through a computer
program that translates the message according to an
equation or algorithm into unreadable "ciphertext."
Decryption is the translation back to plaintext when
the message is received by someone with an appro-
priate "key."
Bernstein III, 974 F. Supp. at 1292. The applications of
encryption, however, are not limited to ensuring secrecy;
encryption can also be employed to ensure data integrity,
authenticate users, and facilitate nonrepudiation (e.g., linking
a specific message to a specific sender). See id.
It is, of course, encryption's secrecy applications that con-
cern the government. The interception and deciphering of for-
4225
eign communications has long played an important part in our
nation's national security efforts. In the words of a high-
ranking State Department official:
Policies concerning the export control of crypto-
graphic products are based on the fact that the prolif-
eration of such products will make it easier for
foreign intelligence targets to deny the United States
Government access to information vital to national
security interests. Cryptographic products and soft-
ware have military and intelligence applications. As
demonstrated throughout history, encryption has
been used to conceal foreign military communica-
tions, on the battlefield, aboard ships and subma-
rines, or in other military settings. Encryption is also
used to conceal other foreign communications that
have foreign policy and national security signifi-
cance for the United States. For example, encryption
can be used to conceal communications of terrorists,
drug smugglers, or others intent on taking hostile
action against U.S. facilities, personnel, or security
interests.
Lowell Decl. at 4 (reproduced in Appellant's Excerpts of
Record at 97). As increasingly sophisticated and secure
encryption methods are developed, the government's interest
in halting or slowing the proliferation of such methods has
grown keen. The EAR regulations at issue in this appeal evi-
dence this interest.
C. The EAR regulations4
The EAR contain specific regulations to control the export
of encryption software, expressly including computer source
_________________________________________________________________
4 Because the district court capably detailed the ITAR and EAR regula-
tory regimes, see Bernstein III, 974 F. Supp. at 1292-96, we present only
an overview of the relevant provisions here.
4226
code. Encryption software is treated differently from other
software in a number of significant ways. First, the term
"export" is specifically broadened5 with respect to encryption
software to preclude the use of the internet and other global
mediums if such publication would allow passive or active
access by a foreign national within the United States or any-
one outside the United States. 15 C.F.R. S 734.2(b)(9)(B)(ii).6
Second, the regulations governing the export of nonencryp-
tion software provide for several exceptions that are not appli-
cable to encryption software.7 In addition, although printed
materials containing encryption source code are not subject to
EAR regulation, the same materials made available on
machine-readable media, such as floppy disk or CD-ROM,
are covered. 15 C.F.R. S 734.3(b), Note to Paragraphs (b)(2)
& (b)(3). The government, moreover, has reserved the right
to restrict source code in printed form that may be easily
"scanned," thus creating some ambiguity as to whether
_________________________________________________________________ 5 "Export," even as applied to software generally, is defined quite
broadly to include any release, including oral exchanges of information
and visual inspections, in a foreign country or to a foreign national within
the United States. 15 C.F.R. S 734.2(b)(2) & (3).
6 Specifically, 15 C.F.R. S 734.2(b)(9)(B)(ii) provides that "export"
includes:
downloading or causing the downloading of, such software to
locations (including electronic bulletin boards, Internet file trans-
fer protocol, and World Wide Web sites) outside the U.S., or
making such software available for transfer outside the United
States, over wire, cable, radio, electromagnetic, photo-optical,
photoelectric or other comparable communications facilities
accessible to persons outside the United States, including trans-
fers from electronic bulletin boards, Internet file transfer protocol
and World Wide Web sites, unless the person making the soft-
ware available takes precautions adequate to prevent unautho-
rized transfer of such code outside the United States.
7 These exceptions allow for export of software that is publicly avail-
able, 15 C.F.R. S 734.7(c); results from fundamental research or is educa-
tional, 15 C.F.R. SS 734.3(b)(3), 734.8, 734.9; is already available from
foreign sources, 15 C.F.R. S 768.1(b); or contains only a de minimis quan- tity of domestically-derived content, 15 C.F.R.S 734.4(b)(2).
4227
printed publications are necessarily exempt from licensing.
See 61 Fed. Reg. 68,575 (1996).
If encryption software falls within the ambit of the relevant
EAR provisions, the "export" of such software requires a pre-
publication license. When a prepublication license is
requested, the relevant agencies undertake a "case-by-case"
analysis to determine if the export is "consistent with U.S.
national security and foreign policy interests." 15 C.F.R.
S 742.15(b). All applications must be "resolved or referred to
the President no later than 90 days" from the date an applica-
tion is entered into the BXA's electronic license processing
system. 15 C.F.R. S 750.4(a). There is no time limit, however,
that applies once an application is referred to the President.
Although the regulations do provide for an internal adminis-
trative appeal procedure, such appeals are governed only by
the exhortation that they be completed "within a reasonable
time." 15 C.F.R. S 756.2(c)(1). Final administrative decisions
are not subject to judicial review. 15 C.F.R. S 756.2(c)(2).
DISCUSSION
I. Prior Restraint
The parties and amici urge a number of theories on us. We
limit our attention here, for the most part, to only one:
whether the EAR restrictions on the export of encryption soft-
ware in source code form constitute a prior restraint in viola-
tion of the First Amendment. We review de novo the district
court's affirmative answer to this question. See Roulette v.
Seattle, 97 F.3d 300, 302 (9th Cir. 1996).
[1] It is axiomatic that "prior restraints on speech and publi-
cation are the most serious and least tolerable infringement on
First Amendment rights." Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 559 (1976). Indeed, the Supreme Court has opined
that "it is the chief purpose of the [First Amendment] guar-
anty to prevent previous restraints upon publication." Near v.
4228
Minnesota, 283 U.S. 697, 713 (1931). Accordingly, "[a]ny
prior restraint on expression comes . . . with a`heavy pre-
sumption' against its constitutional validity." Organization
for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). At the
same time, the Supreme Court has cautioned that"[t]he
phrase `prior restraint' is not a self-wielding sword. Nor can
it serve as a talismanic test." Kingsley Books, Inc. v. Brown,
354 U.S. 436, 441 (1957). We accordingly turn from"[t]he
generalization that prior restraint is particularly obnoxious" to
a "more particularistic analysis." Id. at 442.
[2] The Supreme Court has treated licensing schemes that
act as prior restraints on speech with suspicion because such
restraints run the twin risks of encouraging self-censorship
and concealing illegitimate abuses of censorial power. See
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759
(1988). As a result, "even if the government may constitution-
ally impose content-neutral prohibitions on a particular man-
ner of speech, it may not condition that speech on obtaining
a license or permit from a government official in that offi-
cial's boundless discretion." Id. at 764 (emphasis in original).
We follow the lead of the Supreme Court and divide the
appropriate analysis into two parts. The threshold question is
whether Bernstein is entitled to bring a facial challenge
against the EAR regulations. See id. at 755. If he is so enti-
tled, we proceed to the second question: whether the regula-
tions constitute an impermissible prior restraint on speech.
See id. at 769.
A. Is Bernstein entitled to bring a facial attack?
[3] A licensing regime is always subject to facial challenge8
_________________________________________________________________
8 In using the term "facial challenge" in the prior restraint context, the
Supreme Court has meant two distinct things. First, if entitled to bring a
facial challenge, a plaintiff need not apply for a license before challenging
the licensing regime. See Lakewood, 380 U.S. at 755-56. This is a question
of standing. Second, a litigant challenging an enactment on its face cham-
4229
as a prior restraint where it "gives a government official or
agency substantial power to discriminate based on the content
or viewpoint of speech by suppressing disfavored speech or
disliked speakers," and has "a close enough nexus to expres-
sion, or to conduct commonly associated with expression, to
pose a real and substantial threat of . . . censorship risks." Id.
at 759.
[4] The EAR regulations at issue plainly satisfy the first
requirement -- "the determination of who may speak and
who may not is left to the unbridled discretion of a govern-
ment official." Id. at 763. BXA administrators are empowered
to deny licenses whenever export might be inconsistent with
"U.S. national security and foreign policy interests." 15
C.F.R. S 742.15(b). No more specific guidance is provided.
Obviously, this constraint on official discretion is little better
than no constraint at all. See Lakewood, 486 U.S. at 769-70
(a standard requiring that license denial be in the "public
interest" is an "illusory" standard that "renders the guarantee
against censorship little more than a high-sounding ideal.").
The government's assurances that BXA administrators will
not, in fact, discriminate on the basis of content are beside the
point. See id. at 770 (presumption that official will act in good
faith "is the very presumption that the doctrine forbidding
unbridled discretion disallows."). After all,"the mere exis- tence of the licensor's unfettered discretion, coupled with the
power of prior restraint, intimidates parties into censoring
their own speech, even if the discretion and power are never
actually abused." Id. at 757.
_________________________________________________________________
pions the rights of those not before the court and thus may attack the stat-
ute "whether or not his conduct could be proscribed by a properly drawn
statute." Freedman v. Maryland, 380 U.S. 51, 56 (1965); see also Secre-
tary of State of Md. v. J. H. Munson Co., 467 U.S. 947, 957 (1984);
Roulette, 97 F.3d at 303 n.3. This goes to the scope of the constitutional
challenge.
4230
The more difficult issue arises in relation to the second
requirement -- that the challenged regulations exhibit "a
close enough nexus to expression." We are called on to deter-
mine whether encryption source code is expression for First
Amendment purposes.9
We begin by explaining what source code is.10 "Source
code," at least as currently understood by computer program-
mers, refers to the text of a program written in a "high-level"
programming language, such as "PASCAL" or "C." The dis-
tinguishing feature of source code is that it is meant to be read
and understood by humans and that it can be used to express
an idea or a method. A computer, in fact, can make no direct
use of source code until it has been translated ("compiled")
into a "low-level" or "machine" language, resulting in
computer-executable "object code." That source code is
meant for human eyes and understanding, however, does not
mean that an untutored layperson can understand it. Because
source code is destined for the maw of an automated, ruth-
lessly literal translator -- the compiler -- a programmer must
_________________________________________________________________
9 As an initial matter, we note that the fact that the regulations reach only
"exports" does not reduce the burden on Bernstein's First Amendment rights. It is Bernstein's right to speak, not the rights of foreign listeners to
hear, that we are concerned with here. The government does not argue, nor
could it, that being cut off from a foreign audience, as distinguished from
a domestic one, does not implicate First Amendment concerns. See Bull-
frog Films, Inc. v. Wick, 847 F.2d 502, 509 n.9 (9th Cir. 1988). In addi-
tion, because the regulations define "export" to include the use of internet
fora that may be accessible by foreign nationals, as well as domestic com-
munications with foreign nationals, we think it plain that the regulations
potentially limit Bernstein's freedom of speech in a variety of both domes-
tic and foreign contexts. See Reno v. American Civ. Lib. Union, 117 S. Ct.
2329, 2348-49 (1997) (rejecting government argument that restriction of
expression on the internet is justified because ample alternative channels
of communication exist).
10 In undertaking this task, we are mindful that computer technology,
and the lexicon of terms that accompanies it, is changing rapidly. Never- theless, because the regulations speak in terms of "source code," we prem-
ise our discussion on the meaning commonly ascribed to this term by the
programming community.
4231
follow stringent grammatical, syntactical, formatting, and
punctuation conventions. As a result, only those trained in
programming can easily understand source code.11
Also important for our purposes is an understanding of how
source code is used in the field of cryptography. Bernstein has
submitted numerous declarations from cryptographers and
computer programmers explaining that cryptographic ideas
and algorithms are conveniently expressed in source code.12
_________________________________________________________________
11 It must be emphasized, however, that source code is merely text, albeit
text that conforms to stringent formatting and punctuation requirements.
For example, the following is an excerpt from Bernstein's Snuffle source
code:
for (; ;)
(
uch = gtchr();
if (!(n & 31))
(
for (i = 0; i64; i++)
l [ ctr[i] ] = k[i] + h[n - 64 + i]
Hash512 (wm, wl, level, 8);
)
As source code goes, Snuffle is quite compact; the entirety of the Snuffle
source code occupies fewer than four printed pages.
12 Source code's power to convey algorithmic information is illustrated
by the declaration of MIT Professor Harold Abelson:
The square root of a number X is the number Y such that Y
times Y equals X. This is declarative knowledge. It tells us some-
thing about square roots. But it doesn't tell us how to find a
square root.
In contrast, consider the following ancient algorithm, attributed
to Heron of Alexandria, for approximating square roots:
To approximate the square root of a positive number X,
- Make a guess for the square root of X.
- Compute an improved guess as the average of the guess
and X divided by the guess.
- Keep improving the guess until it is good enough.
4232
That this should be so is, on reflection, not surprising. As
noted earlier, the chief task for cryptographers is the develop-
ment of secure methods of encryption. While the articulation
of such a system in layman's English or in general mathemati-
cal terms may be useful, the devil is, at least for cryptogra-
phers, often in the algorithmic details. By utilizing source
code, a cryptographer can express algorithmic ideas with pre-
cision and methodological rigor that is otherwise difficult to
achieve. This has the added benefit of facilitating peer review
-- by compiling the source code, a cryptographer can create
a working model subject to rigorous security tests. The need
for precisely articulated hypotheses and formal empirical test-
ing, of course, is not unique to the science of cryptography;
it appears, however, that in this field, source code is the pre-
ferred means to these ends.
_________________________________________________________________
Heron's method doesn't say anything about what square roots are, but it does say how to approximate them. This is a piece of
imperative "how to" knowledge.
Computer science is in the business of formalizing imperative
knowledge -- developing formal notations and ways to reason
and talk about methodology. Here is Heron's method formalized
as a procedure in the notation of the Lisp computer language:
(define (sqrtx)
(define (good-enough? guess)
((abs (- (square guess) x)) tolerance))
(define (improve guess)
(average guess (/ x guess)))
(define (try guess)
(if (good-enough? guess)
guess
(try (improve guess))))
(try 1))
4233
[5] Thus, cryptographers use source code to express their
scientific ideas in much the same way that mathematicians
use equations or economists use graphs. Of course, both
mathematical equations and graphs are used in other fields for
many purposes, not all of which are expressive. But mathema-
ticians and economists have adopted these modes of expres-
sion in order to facilitate the precise and rigorous expression
of complex scientific ideas.13 Similarly, the undisputed record
here makes it clear that cryptographers utilize source code in
the same fashion.14
[6] In light of these considerations, we conclude that
encryption software, in its source code form15 and as
_________________________________________________________________
13 We are reminded of at least one occasion in which a judicial thinker
resorted to a mathematical equation to express a legal principle. See
United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)
(Judge Hand's famous BPL formula to determine "when the absence of
a bargee or other attendant will make the owner of the barge liable for
injuries to other vessels if she breaks away from her moorings.").
14 Bernstein's Snuffle, in fact, provides an illustration of this point. By
developing Snuffle, Bernstein was attempting to demonstrate that a one-
way hash function could be employed as the heart of an encryption
method. The Snuffle source code, as submitted by Bernstein to the State
Department, was meant as an expression of how this might be accom-
plished. The Source Code was plainly not intended as a completed encryp-
tion product, as demonstrated by the fact that it was incomplete and not in a form suitable for final compiling. The Source Code, in fact, omits the
hash function entirely -- until combined with such a function and com-
piled, Snuffle is incapable of performing encryption functions at all.
Snuffle was also intended, in part, as political expression. Bernstein dis-
covered that the ITAR regulations controlled encryption exports, but not
one-way hash functions. Because he believed that an encryption system
could easily be fashioned from any of a number of publicly-available one-
way hash functions, he viewed the distinction made by the ITAR regula-
tions as absurd. To illustrate his point, Bernstein developed Snuffle, which
is an encryption system built around a one-way hash function.
15 We express no opinion regarding whether object code manifests a
"close enough nexus to expression" to warrant application of the prior
restraint doctrine. Bernstein's Snuffle did not involve object code, nor
does the record contain any information regarding expressive uses of
object code in the field of cryptography.
4234
employed by those in the field of cryptography, must be
viewed as expressive for First Amendment purposes, and thus
is entitled to the protections of the prior restraint doctrine. If
the government required that mathematicians obtain a pre-
publication license prior to publishing material that included
mathematical equations, we have no doubt that such a regime
would be subject to scrutiny as a prior restraint. The availabil-
ity of alternate means of expression, moreover, does not
diminish the censorial power of such a restraint -- that Adam
Smith wrote Wealth of Nations without resorting to equations
or graphs surely would not justify governmental prepublica-
tion review of economics literature that contain these modes
of expression.
The government, in fact, does not seriously dispute that
source code is used by cryptographers for expressive pur-
poses. Rather, the government maintains that source code is
different from other forms of expression (such as blueprints,
recipes, and "how-to" manuals) because it can be used to con-
trol directly the operation of a computer without conveying
information to the user. In the government's view, by target-
ing this unique functional aspect of source code, rather than
the content of the ideas that may be expressed therein, the
export regulations manage to skirt entirely the concerns of the
First Amendment. This argument is flawed for at least two
reasons.
[7] First, it is not at all obvious that the government's view
reflects a proper understanding of source code. As noted ear-
lier, the distinguishing feature of source code is that it is
meant to be read and understood by humans, and that it
cannot be used to control directly the functioning of a com-
puter. While source code, when properly prepared, can be eas-
ily compiled into object code by a user, ignoring the
distinction between source and object code obscures the
important fact that source code is not meant solely for the
computer, but is rather written in a language intended also for
human analysis and understanding.
4235
[8] Second, and more importantly, the government's argu-
ment, distilled to its essence, suggests that even one drop of
"direct functionality" overwhelms any constitutional protec-
tions that expression might otherwise enjoy. This cannot be so.16
The distinction urged on us by the government would prove
too much in this era of rapidly evolving computer capabilities.
The fact that computers will soon be able to respond directly
to spoken commands, for example, should not confer on the
government the unfettered power to impose prior restraints on
speech in an effort to control its "functional " aspects. The
First Amendment is concerned with expression, and we reject
the notion that the admixture of functionality necessarily puts
expression beyond the protections of the Constitution.
[9] The government also contends that the challenged regu-
lations are immune from prior restraint analysis because they
are "laws of general application" rather than being "directed
narrowly and specifically at expression." Lakewood, 486 U.S.
at 760-61. We cannot agree. Because we conclude that source
code is utilized by those in the cryptography field as a means
of expression, and because the regulations apply to encryption
source code, it necessarily follows that the regulations burden
a particular form of expression directly.
[10] The Supreme Court in Lakewood explored what it
means to be a "law of general application" for prior restraint
purposes. In that case, the Court cited a law requiring building
permits as a "law of general application" that would not be
subject to a facial attack as a prior restraint, reasoning that
such a law carried "little danger of censorship, " even if it
could be used to retaliate against a disfavored newspaper
seeking to build a printing plant. Id. at 761. In the Court's
view, "such laws provide too blunt a censorship instrument to
_________________________________________________________________
16 If it were, we would have expected the Supreme Court to start and end
its analysis of David Paul O'Brien's burning of his draft card with an
inquiry into whether he was kept warm by the ensuing flames. See United
States v. O'Brien, 391 U.S. 367 (1968).
4236
warrant judicial intervention prior to an allegation of actual
misuse." Id. Unlike a building permit ordinance, which would
afford government officials only intermittent and unpredict-
able opportunities to exercise unrestrained discretion over
expression, the challenged EAR regulations explicitly apply
to expression and place scientific expression under the cen-
sor's eye on a regular basis. In fact, there is ample evidence
in the record establishing that some in the cryptography field
have already begun censoring themselves, for fear that their
statements might influence the disposition of future licensing
applications. See, e.g., NATIONAL RESEARCH COUNCIL, CRYP-
TOGRAPHY'S ROLE IN SECURING THE INFORMATION SOCIETY 158
(1996) ("Vendors contended that since they are effectively at
the mercy of the export control regulators, they have consider-
able incentive to suppress any public expression of dissatis-
faction with the current process."). In these circumstances, we
cannot conclude that the export control regime at issue is a "law of general application" immune from prior restraint
analysis.17
_________________________________________________________________
17 The government also argues that the EAR regulations are "laws of
general application" because they are not purposefully aimed at suppress-
ing any particular ideas that may be expressed in source code. With
respect to this contention, the panel (including the dissenter) agree that the
purpose of the regulations is irrelevant to prior restraint analysis. It is clear
that a prior restraint analysis applies equally to content-neutral or content-
based enactments. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990)
(plurality opinion of O'Connor, J.) ("Because we conclude that the city's
licensing scheme lacks adequate procedural safeguards, we do not reach
. . . whether the ordinance is properly viewed as a content-neutral time,
place, and manner restriction. . . ."); Lakewood, 486 U.S. at 764 ("[E]ven
if the government may constitutionally impose content-neutral prohibi-
tions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that offi-
cial's boundless discretion.") (emphasis in original). Indeed, where unbri-
dled discretion is vested in a governmental official, it is difficult to know
whether a licensing regime is content-based or content-neutral. Accord-
ingly, the government's purpose in censoring encryption source code is,
at this stage of our First Amendment inquiry, beside the point. In other
words, a prepublication licensing regime that has a chilling and censorial
effect on expression is properly subject to facial attack as a prior restraint,
4237
[11] Because the prepublication licensing scheme chal-
lenged here vests unbridled discretion in government officials,
and because it directly jeopardizes scientific expression, we
are satisfied that Bernstein may properly bring a facial chal-
lenge against the regulations.18 We accordingly turn to the
merits.
_________________________________________________________________
whatever the purpose behind its enactment. See Lakewood, 486 U.S. at
759 (upholding facial attack against newsrack ordinance because of censo-
rial effects, without discussing governmental purpose for enacting the
ordinance).
18 It is at this juncture that we part ways with the dissent. The dissent
concedes that source code can be expressive. Nevertheless, the dissent
contends that Bernstein is not entitled to bring a facial attack against the
EAR regulation. This argument, it seems to us, is based on two founda-
tions.
First, the dissent conceives of the exchange of source code among sci-
entists as "conduct." We disagree. The source code at issue here is text
intended for human understanding, albeit in a specialized language. To say
that the "export" of this text is "conduct " for First Amendment purposes,
rather than straightforward scientific "expression," is to call into question
all distribution and circulation of scientific texts that communicate ideas
by using specialized languages. Of course, source code may be functional
as well as expressive. We are not persuaded, however, that that fact trans-
mogrifies the distribution of scientific texts from "expression" into
"conduct" deserving of diminished First Amendment protection.
Having cast the question as one relating to "conduct," the dissent then
takes a second step. Drawing from Lakeside, the dissent asks whether the
"conduct" -- the exchange of cryptographic source code -- is "commonly
associated with expression." This question the dissent answers in the nega-
tive; in other words, the dissent concludes that source code is not used
expressively often enough. We find this conclusion somewhat perplexing,
as there is nothing in the record to support it. Bernstein has introduced
extensive expert evidence to support his contention that source code is fre-
quently used for expressive purposes. The government, however, has
failed to introduce anything into the record to rebut this evidence. In fact,
the government has made it clear that it means to control the export of
source code no matter how commonly associated it may be with
expresssion: "Whatever ideas may be reflected in the software, or the
intent of the exporter to convey ideas, the NSA recommends that encryp-
tion software be controlled for export solely on the basis of what it does. . . ." Second Lowell Decl., Appellant's Excerpts of Record at 104.
4238
B. Are the regulations an impermissible prior restraint?
[12] "[T]he protection even as to previous restraint is not
absolutely unlimited." Near, 283 U.S. at 716. The Supreme
Court has suggested that the "heavy presumption " against
prior restraints may be overcome where official discretion is
bounded by stringent procedural safeguards. See FW/PBS,
493 U.S. at 227 (plurality opinion of O'Connor, J.);
Freedman v. Maryland, 380 U.S. 51, 58-59 (1965); Kingsley
Books, 354 U.S. at 442-43; 11126 Baltimore Blvd. v. Prince
George's County, 58 F.3d 988, 995 (4th Cir. 1995) (en banc).
As our analysis above suggests, the challenged regulations do
not qualify for this First Amendment safe harbor. 19 In
Freedman v. Maryland, the Supreme Court set out three fac-
tors for determining the validity of licensing schemes that
impose a prior restraint on speech: (1) any restraint must be
for a specified brief period of time; (2) there must be expedi-
tious judicial review; and (3) the censor must bear the burden
of going to court to suppress the speech in question and must
_________________________________________________________________ 19 The Supreme Court has also suggested that the presumption against
prior restraints may be overcome where publication would directly and
imminently imperil national security. See New York Times Co. v. United
States, 403 U.S. 713, 730 (1971) (Stewart, J., joined by White, J., concur-
ring); Near, 283 U.S. at 716; see also United States v. The Progressive,
Inc., 467 F. Supp. 990, 992 (W.D. Wisc. 1979). In order to justify a prior
restraint on national security grounds, the government must prove the pub-
lication would "surely result in direct, immediate, and irreparable damage
to our Nation or its people." New York Times, 403 U.S. at 730 (Stewart,
J., joined by White, J., concurring); see also id. at 726-27 (Brennan, J.,
concurring) (finding that national security is a sufficient interest only
where there is "governmental allegation and proof that publication must
inevitably, directly, and immediately cause the occurrence of an event kin-
dred to imperiling the safety of a transport already at sea"); Burch v. Baker, 861 F.2d 1149, 1155 (9th Cir. 1988) ("Prior restraints are permissi-
ble in only the rarest of circumstances, such as imminent threat to national
security.").
The government does not argue that the prior restraint at issue here falls
within the extremely narrow class of cases where publication would
directly and immediately imperil national security.
4239
bear the burden of proof.20 See 380 U.S. at 58-60. The district
court found that the procedural protections provided by the
EAR regulations are "woefully inadequate" when measured
against these requirements. Bernstein III, 974 F. Supp. at
1308. We agree.
[13] Although the regulations require that license applica-
tions be resolved or referred to the President within 90 days,
see 15 C.F.R. S 750.4(a), there is no time limit once an appli-
cation is referred to the President. Thus, the 90-day limit can
be rendered meaningless by referral. Moreover, if the license
application is denied, no firm time limit governs the internal
appeals process. See 15 C.F.R. S 756.2(c)(1) (Under Secretary
"shall decide an appeal within a reasonable time after receipt
of the appeal."). Accordingly, the EAR regulations do not sat-
isfy the first Freedman requirement that a licensing decision
be made within a reasonably short, specified period of time.
See FW/PBS, 493 U.S. at 226 (finding that "a prior restraint
that fails to place time limits on the time within which the
decisionmaker must issue the license is impermissible"); Riley
v. National Fed. of the Blind, 487 U.S. 781, 802 (1988)
(licensing scheme that permits "delay without limit" is imper-
missible); Vance v. Universal Amusement Co., 445 U.S. 308, 315-17 (1980) (prior restraint of indefinite duration is imper-
missible). The EAR regulatory regime further offends
Freedman's procedural requirements insofar as it denies a dis-
appointed applicant the opportunity for judicial review.21 See
_________________________________________________________________
20 Whether all three Freedman factors apply to all prior restraints is the
subject of dispute. Compare FW/PBS, 493 U.S. at 229-30 (plurality opin-
ion of O'Connor, J.) (finding the government does not bear the burden of
going to court to defend its licensing requirement where restrained speak-
ers are likely to challenge the restraint in court) with id. at 239 (Brennan,
J., concurring in judgment) ("We have never suggested that our insistence
on Freedman procedures might vary with the particular facts of the prior
restraint before us."). Because we conclude that the EAR regulations fail
Freedman's first two procedural requirements, we need not reach the issue
of whether the third Freedman factor applies in this case. 21 As noted earlier, the BXA enjoys essentially unbounded discretion
under the EAR regulations in administering the license process. Accord-
4240
15 C.F.R. S 756.2(c)(2); FW/PBS, 493 U.S. at 229 (plurality
opinion of O'Connor, J.) (finding failure to provide "prompt"
judicial review violates Freedman); Freedman, 380 U.S. at 59
(licensing procedure must assure a prompt final judicial deci-
sion).
[14] We conclude that the challenged regulations allow the
government to restrain speech indefinitely with no clear
criteria for review. As a result, Bernstein and other scientists
have been effectively chilled from engaging in valuable scien-
tific expression. Bernstein's experience itself demonstrates
the enormous uncertainty that exists over the scope of the reg-
ulations and the potential for the chilling of scientific expres-
sion. In short, because the challenged regulations grant
boundless discretion to government officials, and because
they lack the required procedural protections set forth in
Freedman, we find that they operate as an unconstitutional
prior restraint on speech.22 See Lakewood, 486 U.S. at 769-
772 (holding that newsrack licensing ordinance was an imper-
missible prior restraint because it conferred unbounded dis-
cretion and lacked adequate procedural safeguards).
_________________________________________________________________
ingly, even if the challenged regulations provided for judicial review, the lack of explicit limits on the decisionmaker's discretion would likely make
such review meaningless. In this sense, the presence of unbounded discre-
tion itself may be considered fatal for purposes of prior restraint review.
See Lakewood, 486 U.S. at 769-70 (striking down a licensing scheme
where the mayor could merely claim that the license" `is not in the public
interest' when denying a permit application").
22 Our conclusion relating to the Source Code also resolves the status of
the regulations as applied to the Instructions. Because the Instructions are
essentially a translation of the Source Code into English, they are, if any-
thing, nearer the heartland of the First Amendment. Consequently, to the
extent the challenged regulations are unconstitutional as applied to the
Source Code, they necessarily are unconstitutional as applied to the
Instructions.
4241
C. Concluding comments.
We emphasize the narrowness of our First Amendment
holding. We do not hold that all software is expressive. Much
of it surely is not. Nor need we resolve whether the chal-
lenged regulations constitute content-based restrictions, sub-
ject to the strictest constitutional scrutiny, or whether they are,
instead, content-neutral restrictions meriting less exacting
scrutiny. We hold merely that because the prepublication
licensing regime challenged here applies directly to scientific
expression, vests boundless discretion in government offi-
cials, and lacks adequate procedural safeguards, it constitutes
an impermissible prior restraint on speech.
We will, however, comment on two issues that are
entwined with the underlying merits of Bernstein's constitu-
tional claims. First, we note that insofar as the EAR regula-
tions on encryption software were intended to slow the spread
of secure encryption methods to foreign nations, the govern-
ment is intentionally retarding the progress of the flourishing
science of cryptography. To the extent the government's
efforts are aimed at interdicting the flow of scientific ideas
(whether expressed in source code or otherwise), as distin-
guished from encryption products, these efforts would appear
to strike deep into the heartland of the First Amendment. In
this regard, the EAR regulations are very different from
content-neutral time, place and manner restrictions that may
have an incidental effect on expression while aiming at sec-
ondary effects.
Second, we note that the government's efforts to regulate
and control the spread of knowledge relating to encryption
may implicate more than the First Amendment rights of cryp-
tographers. In this increasingly electronic age, we are all
required in our everyday lives to rely on modern technology
to communicate with one another. This reliance on electronic
communication, however, has brought with it a dramatic dim-
inution in our ability to communicate privately. Cellular
4242
phones are subject to monitoring, email is easily intercepted,
and transactions over the internet are often less than secure.
Something as commonplace as furnishing our credit card
number, social security number, or bank account number puts
each of us at risk. Moreover, when we employ electronic
methods of communication, we often leave electronic
"fingerprints" behind, fingerprints that can be traced back to
us. Whether we are surveilled by our government, by crimi-
nals, or by our neighbors, it is fair to say that never has our
ability to shield our affairs from prying eyes been at such a
low ebb. The availability and use of secure encryption may
offer an opportunity to reclaim some portion of the privacy
we have lost. Government efforts to control encryption thus
may well implicate not only the First Amendment rights of
cryptographers intent on pushing the boundaries of their sci-
ence, but also the constitutional rights of each of us as poten-
tial recipients of encryption's bounty. Viewed from this
perspective, the government's efforts to retard progress in cryptography may implicate the Fourth Amendment, as well
as the right to speak anonymously, see McIntyre v. Ohio Elec-
tions Comm'n, 115 S. Ct. 1511, 1524 (1995) , the right against
compelled speech, see Wooley v. Maynard, 430 U.S. 705, 714
(1977), and the right to informational privacy, see Whalen v.
Roe, 429 U.S. 589, 599-600 (1977). While we leave for
another day the resolution of these difficult issues, it is impor-
tant to point out that Bernstein's is a suit not merely concern-
ing a small group of scientists laboring in an esoteric field, but
also touches on the public interest broadly defined.
II. Scope of Declaratory Relief
The government also challenges the scope of the declara-
tory relief granted by the district court. The government
argues that the relief provided is invalid in two respects: (1)
that the relief extends to encryption object code and encryp-
tion commodities; (2) that the relief extends to encryption
technology. The district held that
4243
the Export Administration Regulations, 15 C.F.R. pt.
730 et seq. (1997) and all rules, policies and prac-
tices promulgated or pursued thereunder insofar as
they apply to or require licensing for encryption and
decryption software and related devices and technol-
ogy are in violation of the First Amendment on the
grounds of prior restraint and are, therefore, uncon-
stitutional as discussed above, and shall not be
applied to plaintiff's publishing of such items,
including scientific papers, algorithms or computer
programs.
Bernstein III, 974 F. Supp. at 1310. We review the district
court's grant of declaratory relief de novo. See Crawford v.
Lungren, 96 F.3d 380, 384 (9th Cir. 1996); Ablang v. Reno,
52 F.3d 801, 803 (9th Cir. 1995).
This inquiry leads us into the uncertain jurisprudence of
"severability." See generally John Copeland Nagle,
Severability, 72 N.C. L. REV. 203 (1993). The general princi-
ple is clear: "[A] court should refrain from invalidating more
of [a] statute than is necessary . . . . `[W]henever an act of
Congress contains unobjectionable provisions separable from
those found to be unconstitutional, it is the duty of this court
to so declare, and to maintain the act in so far as it is valid.' "
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987)
(quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984)); see
also National Collegiate Athletic Ass'n v. Miller , 10 F.3d 633,
640 (9th Cir. 1993). The applicable legal standard has also
been oft repeated: "[u]nless it is evident that the Legislature
would not have enacted those provisions which are within its
power, independently of that which is not, the invalid part
may be dropped if what is left is fully operative as a law."
Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam); accord NCAA v. Miller, 10 F.3d at 640. Thus, in the general case,
severability analysis properly focuses on legislative intent.
See Alaska Airlines, Inc., 480 U.S. at 685.
4244
This case, however, is not the general case. First, the chal-
lenged enactment here is a regulation, rather than a statute. As
a result, we cannot look to the usual public sources to deter-
mine the intentions of the drafters. Nevertheless, we agree
with the government that the EAR regulations can be concep-
tually severed into component parts governing commodities,
software, and technology. We also assume that the Depart-
ment of Commerce, even if barred from imposing prepublica-
tion licensing on encryption source code, would have enacted
regulations controlling the export of encryption commodities,
object code, and technology.
But while the district court may have erred in treating soft-
ware and commodities as the same item, the integrated struc-
ture of the regulations does not permit us to sever the various
provisions in the manner requested by the government. To
sever the unconstitutional portion of the regulations, we
would have to line edit individual sections, deleting or modi-
fying the definition of "software" while retaining "commod-
ities" and "technology." We would then have to redefine gen-
eral terms such as "items" which refer collectively to com-
modities, software, and technology. We have neither the
power nor the capacity to engage in line by line revisions of
the challenged regulations or to redefine terms within the reg-
ulations. See Hill v. Wallace, 259 U.S. 44, 70-71 (1922);
American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 332-33
(7th Cir. 1985). To do so would be to improperly invade the
province reserved to the Executive. Accordingly, we affirm
the district court's grant of declaratory relief.
CONCLUSION
Because the prepublication licensing regime challenged by
Bernstein applies directly to scientific expression, vests
boundless discretion in government officials, and lacks ade-
quate procedural safeguards, we hold that it constitutes an
impermissible prior restraint on speech. We decline the invita-
tion to line edit the regulations in an attempt to rescue them
4245
from constitutional infirmity, and thus endorse the declaratory
relief granted by the district court.
I join Judge Fletcher's opinion. I do so because the speech
aspects of encryption source code represent communication
between computer programmers. I do, however, recognize the
validity of Judge Nelson's view that encryption source code
also has the functional purpose of controlling computers and
in that regard does not command protection under the First
Amendment. The importance of this case suggests that it may
be appropriate for review by the United States Supreme
Court.
Bernstein was not entitled to bring a facial First Amend-
ment challenge to the EAR, and the district court improperly
granted an injunction on the basis of a facial challenge. I
therefore respectfully dissent.
The basic error which sets the majority and the district
court adrift is the failure to fully recognize that the basic func-
tion of encryption source code is to act as a method of con-
trolling computers. As defined in the EAR regulations,
encryption source code is "[a] precise set of operating instruc-
tions to a computer, that when compiled, allows for the execu-
tion of an encryption function on a computer." 15 C.F.R. pt.
722. Software engineers generally do not create software in
object code--the series of binary digits (1's and 0's)--which
tells a computer what to do because it would be enormously
4246
difficult, cumbersome and time-consuming. Instead, software
engineers use high-level computer programming languages
such as "C" or "Basic" to create source code as a shorthand
method for telling the computer to perform a desired function.
In this respect, lines of source code are the building blocks or
the tools used to create an encryption machine. See e.g., Pat-
rick Ian Ross, Bernstein v. United States Department of State,
13 Berkeley Tech. L.J. 405, 410-11 (1998) ("[E]lectronic
source code that is ready to compile merely needs a few
keystrokes to generate object code--the equivalent of flipping
an `on' switch. Code used for this purpose can fairly easily be
characterized as `essentially functional.' "); Pamela Samuel-
son et al., A Manifesto Concerning Legal Protection of Com-
puter Programs, 94 Colum. L. Rev. 2308, 2315-30 (1994)
("[P]rograms are, in fact, machines (entities that bring about
useful results, i.e., behavior) that have been constructed in the
medium of text (source code and object code)."). Encryption source code, once compiled, works to make computer com-
munication and transactions secret; it creates a lockbox of
sorts around a message that can only be unlocked by someone
with a key. It is the function or task that encryption source
code performs which creates its value in most cases. This
functional aspect of encryption source code contains no
expression; it is merely the tool used to build the encryption
machine.
This is not to say that this very same source code is not
used expressively in some cases. Academics, such as Bern-
stein, seek to convey and discuss their ideas concerning com-
puter encryption. As noted by the majority, Bernstein must
actually use his source code textually in order to discuss or
teach cryptology. In such circumstances, source code serves
to express Bernstein's scientific methods and ideas.
While it is conceptually difficult to categorize encryption
source code under our First Amendment framework, I am still
inevitably led to conclude that encryption source code is more
like conduct than speech. Encryption source code is a building
4247
tool. Academics and computer programmers can convey this
source code to each other in order to reveal the encryption
machine they have built. But, the ultimate purpose of encryp-
tion code is, as its name suggests, to perform the function of
encrypting messages. Thus, while encryption source code
may occasionally be used in an expressive manner, it is inher-
ently a functional device.
We are not the first to examine the nature of encryption
source code in terms of First Amendment protection. Judge
Gwin of the United States District Court for the Northern Dis-
trict of Ohio also explored the function versus expression
conundrum of encryption source code at some length in
Junger v. Daley, 8 F. Supp. 2d 708 (N.D. Ohio 1998). Junger,
like Bernstein, is a professor, albeit a law professor, who
wished to publish in various forms his work on computers,
including a textbook, Computers and the Law. The book was
determined by the Government to be subject to export without
a license, but his software programs were determined to come
within the licensing provisions of the EAR. In the course of
rejecting Junger's claims, the court said:
Like much computer software, encryption source
code is inherently functional; it is designed to enable
a computer to do a designated task. Encryption
source code does not merely explain a cryptographic
theory or describe how the software functions. More
than describing encryption, the software carries out
the function of encryption. The software is essential
to carry out the function of encryption. In doing this
function, the encryption software is indistinguishable
from dedicated computer hardware that does encryp-
tion.
In the overwhelming majority of circumstances,
encryption source code is exported to transfer func-
tions, not to communicate ideas. In exporting func-
tioning capability, encryption source code is like
4248
other encryption devices. For the broad majority of
persons receiving such source code, the value comes
from the function the source code does.
Id. at 716. The Junger decision thus adds considerable sup-
port for the propositions that encryption source code cannot
be categorized as pure speech and that the functional aspects
of encryption source code cannot be easily ignored or put
aside.
Both the district court and the majority hold that because
source code can be used expressively in some circumstances,
Bernstein was entitled to bring a facial challenge to the EAR.
Such an approach ignores the basic tenet that facial challenges
are inappropriate "unless, at a minimum, the challenged stat-
ute `is directed narrowly and specifically at expression or con-
duct commonly associated with expression.' " Roulette v. City
of Seattle, 97 F.3d 300, 305 (9th Cir. 1996) (quoting City of
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760
(1988)). That encryption source code may on occasion be
used expressively does not mean that its export is "conduct
commonly associated with expression" or that the EAR regu-
lations are directed at expressive conduct. See id. at 303 ("The
fact that sitting can possibly be expressive, however, isn't
enough to sustain plaintiffs' facial challenge."); see also
Junger, 8 F. Supp. 2d at 718 ("[T]he prior restraint doctrine
is not implicated simply because an activity may on occasion be expressive.").
The activity or conduct at issue here is the export of
encryption source code. As I noted above, the basic nature of
encryption source code lies in its functional capacity as a
method to build an encryption device. Export of encryption
source code is not conduct commonly associated with expres-
sion. Rather, it is conduct that is normally associated with
providing other persons with the means to make their com-
puter messages secret. The overwhelming majority of people
do not want to talk about the source code and are not inter-
4249
ested in any recondite message that may be contained in
encryption source code. Only a few people can actually
understand what a line of source code would direct a com-
puter to do. Most people simply want to use the encryption
source code to protect their computer communications. Export
of encryption source code simply does not fall within the
bounds of conduct commonly associated with expression such
as picketing or handbilling. See Roulette, 97 F.3d at 303-04.
Further, the EAR regulates the export of encryption tech-
nology generally, whether it is software or hardware. See 15
C.F.R. S 742.15; Junger, 8 F. Supp. 2d at 718 ("The Export
Regulations do not single out encryption software."). These
regulations are directed at preventing the functional capacity
of any encryption device, including its source code, from
being exported without a government license. The EAR is not
specifically directed towards stifling the expressive nature of
source code or Bernstein's academic discussions about cryp-
tography. This is demonstrated by the fact that the regulations
do not object to publication in printed form of learned articles
containing source code. See 15 C.F.R. S 734.3. Thus, the EAR
is generally directed at non-expressive conduct--the export of
source code as a tool to make messages secret and impervious
to government eavesdropping capabilities.
Because this is a law of general application focused at con-
duct, Bernstein is not entitled to bring a facial challenge. The
district court's injunction based upon the finding of a facial
prior restraint is thus impermissible. This is not to say that
Bernstein's activities would not be entitled to First Amend-
ment protection, but that the legal path chosen to get that pro-
tection must be the correct one. We should be careful to
"entertain[ ] facial freedom-of-expression challenges only
against statutes that, `by their terms,' sought to regulate `spo-
ken words,' or patently `expressive or communicative
conduct.' " Roulette, 97 F.3d at 303 (citing Broadrick v.
Oklahoma, 413 U.S. 601, 612-13 (1973)). Bernstein may very
well have a claim under an as-applied First Amendment anal-
4250
ysis; however, such a claim must be left to the district court's
determination in the first instance. Here, the district court did
not rule on Bernstein's as-applied claims. I would therefore
vacate the district court's injunction and remand for consider-
ation of Bernstein's as-applied challenges to the EAR.
Accordingly, I respectfully dissent.