In Legal First, Federal Appeals Court is Unanimous: First Amendment Applies to Programming Code

Affiliate: ACLU of Ohio
April 4, 2000 12:00 am

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CLEVELAND, OH — The American Civil Liberties Union today lauded a first-ever ruling by a federal appeals court that the First Amendment protects documents written in computer programming languages.

“This is a great day for programmers, computer scientists and all Americans who believe that privacy and intellectual freedom should be free from government control,”said ACLU of Ohio Legal Director Raymond Vasvari.

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, based in Ohio, overturned the July 1998 ruling of a federal district judge in Akron, who held that computer programming languages are more functional than expressive, and thus do not merit First Amendment protection.

The decision comes after four years of litigation in Junger v. Daley, a case filed in August 1996 on behalf of Peter Junger, Professor of Law at Case Western Reserve University in Cleveland.

Professor Junger teaches a class on computers and the law, which includes instruction on encryption, the means of using computers to encode and decode messages and data in order to preserve their privacy.

In 1996, officials at the National Security Agency (NSA), the super-secret government organization which conducts electronic eavesdropping for the military, suggested that Junger might be violating federal law by exposing foreign students to a primitive encryption program as part of a class project.

Junger brought suit in federal court, claiming that the First Amendment protected his right to academic freedom, and to public on the Internet portions of a textbook he had written on computers and the law. His claims were denied by U.S. District Judge James Gwin in July 1998. The appeal was filed in August 1998, and argued in December 1999.

“At first blush this seems to be a very technical case. But it is hard to overstate its importance,” Vasvari said. “For the first time, a federal appellate court has decided that computer programming languages are entitled to the protections of the First Amendment. This extends to a new medium of expression the sort of protection which music, poetry, scientific articles and other forms of technical expression have always enjoyed.”

Encryption source code is routinely shared by members of the online community interested in computer privacy and civil rights. The Junger case, and a related matter pending in the Ninth Circuit, Bernstein v. Department of State, have been closely watched by civil libertarians, computer programmers and the software industry.

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