U.S. Court of Appeals for the Ninth Circuit

Case Name:

BERNSTEIN V USDOJ Case Number: Date Filed: 97-16686 05/06/99

FOR PUBLICATION



UNITED STATES COURT OF APPEALS



FOR THE NINTH CIRCUIT



DANIEL J. BERNSTEIN,

Plaintiff-Appellee,



v.



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.



_________________________________________________________________

OPINION



B. FLETCHER, Circuit Judge:



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.



AFFIRMED.



_________________________________________________________________



BRIGHT, Circuit Judge, separately concurring.



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.



_________________________________________________________________



T.G. NELSON, Circuit Judge, Dissenting:



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.







Originally posted by the 9th Circuit Court of Appeals