ELECTRONIC PRIVACY INFORMATION CENTER; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL HEADQUARTERS; INTERNET SOCIETY; and U.S. PUBLIC POLICY COMMITTEE OF THE ASSOCIATION FOR COMPUTING MACHINERY
Ivan K. Fong, Bar No. 417694
Dawn C. Nunziato, Bar No. 451636
COVINGTON & BURLING
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, DC 20044
(202) 662-6000David L. Sobel, Bar No. 360418
Marc Rotenberg, Bar No. 422825
ELECTRONIC PRIVACY INFORMATION CENTER
666 Pennsylvania Ave., SE
Washington, DC 20003
(202) 544-9240Counsel for Amici Curiae
Date: October 7, 1996
A. Parties and Amici.
Except for the following, all parties, intervenors and amici appearing in this court are listed in the Brief of Appellant. The Internet Society (ISOC) and the U.S. Public Policy Committee of the Association for Computing Machinery (USACM) today have filed with the court a motion for leave to participate as amici curiae and to join in the brief. ISOC and USACM also have filed with the court a disclosure statement as required by Circuit Rule 26.1. Amici Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union Foundation, National Headquarters (ACLU), previously have filed with the court motions for leave to participate as amicus curiae and the disclosure statements required by Circuit Rule 26.1.
B. Rulings Under Review.
References to the rulings at issue appear in the Brief of Appellant.
C. Related Cases.
With the exception of the proceedings in the district court, this case has not been before this or any other court. Legal issues similar to the issues raised in this appeal have been raised in a case pending before Judge Patel in the United States District Court for the Northern District of California, Bernstein v. Department of State, C 95-00582 MHP, and in another case pending before Judge Nugent in the United States District Court for the Northern District of Ohio, Junger v. Christopher, Case No. 96 CV 1723.
The Electronic Privacy Information Center ("EPIC") is a non-profit, public interest research center in Washington, D.C., that was established in 1994 to focus public attention on emerging civil liberties issues in the field of electronic information. EPIC is sponsored by the Fund for Constitutional Government, a non-profit organization established in 1974 to protect privacy, the First Amendment, and other constitutional rights.
EPIC monitors and disseminates information about court decisions and government policies that affect electronic privacy. EPIC has developed an expertise in the legal issues in this area, as well as a technical expertise in encryption that helps to illuminate the practical aspects of the issues currently before the Court. EPIC is concerned that the district court's ruling, if allowed to stand, would unnecessarily restrain the development of encryption techniques, an emerging communications technology that already has proven essential to the global communications network.
The American Civil Liberties Union Foundation, National Headquarters ("ACLU"), is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to defending the principles of liberty and equality embodied in the Bill of Rights. Throughout its 75 year history, the ACLU has been particularly concerned with any abridgement of the freedoms guaranteed by the First Amendment. The ACLU has worked to ensure that First Amendment protections are extended to each new communications technology -- the telephone, radio, television, cable, and now online communications. The ACLU has, therefore, appeared before the Supreme Court and the Courts of Appeals in numerous cases involving the First Amendment, both as direct counsel and as amicus curiae. The ACLU is concerned that the district court's ruling, if allowed to stand, would set a harmful precedent that could allow government to infringe too easily on the speech rights of those using electronic media.
The Internet Society (ISOC) is a non-governmental international organization for worldwide coordination and collaboration of Internet standards, issues and education for the Internet and its internetworking technologies and applications. The Internet Society has over 7,500 members, currently representing 108 countries of the world and comprised of commercial companies, governmental agencies, foundations, and individuals. ISOC serves to assure the beneficial, open evolution of the global Internet and its related internetworking technologies.
The U.S. Public Policy Committee of the Association for Computing Machinery (USACM) serves as the focal point for the interaction by the Association for Computing Machinery (ACM) with U.S. government organizations, the computing community and the U.S. public in all matters of U.S. public policy related to information technology. The Association for Computing Machinery, chartered in 1947, is an 80,000 member, non-profit, 501(c)(3) corporation, international scientific and educational organization dedicated to advancing the art, science, engineering, and application of information technology.
Jurisdiction in the District Court was founded on 28 U.S.C. § 1331 because of the claim that the administrative action under review violates the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and the First and Fifth Amendments to the United States Constitution.
Jurisdiction in this Court is based on 28 U.S.C. § 1291 because the decision of the District Court granting summary judgment is a final order.
The pertinent statutes and regulations are attached as Appendix A to the Brief of Appellant.
The statement of issues presented for review appears in the Brief of Appellant.
Appellant Philip R. Karn brings this appeal to challenge the constitutionality of the Arms Export Control Act ("AECA" or "Act"), 22 U.S.C. §§ 2751-2796d (1994), and the regulations that implement it, the International Traffic in Arms Regulations ("ITAR" or "Regulations"), 22 C.F.R. §§ 120-130 (1996).
Under AECA, the President is authorized, inter alia, to control the import and export of "defense articles" and "defense services," 22 U.S.C. § 2778(a)(1), by placing such items on the "United States Munitions List." 22 C.F.R. § 121.1. The category of the United States Munitions List at issue in this case includes software containing cryptographic algorithms. See 22 C.F.R. § 121.1(XIII)(b)(1).
To determine whether the United States Munitions List includes a particular item (and thus whether the item is subject to restrictions on its dissemination), an individual is required to file a written "Commodity Jurisdiction Request" with the Office of Defense Trade Controls ("ODTC"). See 22 C.F.R. §§ 120.4, 120.4(d) (setting forth factors considered by ODTC in making its licensing determination). The ODTC's decisions regarding the United States Munitions List are not subject to judicial review. See 22 U.S.C. § 2778(h) ("The designation by the President (or by an official to whom the President's functions . . . have been duly delegated) in regulations issued under this section of items as defense articles or defense services for purposes of this section shall not be subject to judicial review."). If an item is on the United States Munitions List, an individual must secure a license from the ODTC before publishing or disseminating the item. See 22 C.F.R. § 123.1./1/ Failure to secure the requisite license subjects the item being published or disseminated to seizure and the publisher to criminal liability. See 22 C.F.R. § 127.6.
In order to further dialogue among mathematicians and computer scientists concerning cryptography and to fulfill his interest in the dissemination of information about cryptography, Appellant Karn, a software engineer involved in developing cryptographic computer programs, sought to publish and disseminate text written in C programming language that embodied cryptographic algorithms and was stored on a computer diskette. In accordance with the Regulations, on March 9, 1994, Karn submitted a Commodity Jurisdiction Request for a determination of whether this text was subject to export licensing requirements./2/ Sixty-three days later, on May 11, 1994, the Office of Defense Trade Controls ruled that the source code constituted a "defense article" under Category XIII(b)(1) of the United States Munitions List and was therefore subject to export licensing requirements. Karn unsuccessfully appealed the ODTC's determination to the Deputy Assistant Secretary of State for Export Controls, and then to the Assistant Secretary of State for Politico-Military Affairs. Having exhausted his administrative remedies, Karn brought this suit against the Department of State and the Assistant Secretary, Bureau of Politico-Military Affairs, to secure a declaratory judgment holding, inter alia, that the licensing determination provisions of the Regulations violate the First Amendment./3/ The district court granted Defendants' motions to dismiss and for summary judgment, Karn v. United States Dep't of State, 925 F. Supp. 8 (D.D.C. 1996), and this appeal followed.
The Arms Export Control Act and its implementing Regulations impose an unconstitutional prior restraint on text written in a programming language -- which is protected expression under the First Amendment. Because the Act and Regulations require individuals to submit textual materials to prepublication governmental review, the Regulations vest undue discretion in the government licensor, and the prior restraint effected does not fall within the extremely narrow exception to the First Amendment's ban on prior restraints, the Act must be found unconstitutional. Furthermore, because the licensing scheme embodied in the Act does not provide the procedural safeguards necessary to render prior restraints constitutional, the Act violates the First Amendment. The Act is an impermissible regulation aimed at the suppression of expression and fails strict scrutiny. The judgment of the district court should therefore be reversed.
I. Cryptography and the protections to privacy interests it provides are vital components of emerging global communications technologies.
Emerging computer and communications technologies are radically altering the ways in which we communicate and exchange information. Along with the speed, efficiency, and cost-saving benefits of the "digital revolution" come new challenges to the security and privacy of communications and information traversing the global communications infrastructure. As one commentator has observed, "the ease with which electronic mail messages can be intercepted by third parties means that communicating by public electronic mail systems, like the Internet, is becoming almost as insecure as talking in a crowded restaurant." A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Pa. L. Rev. 709, 724 (1995) (footnote omitted). As the National Research Council's Committee to Study Cryptography Policy ("NRC Committee") recently noted, the threat to personal privacy is substantial:
Increasing reliance on electronic commerce and the use of networked communication for all manner of activities suggest that more information about more people will be stored in network-accessible systems and will be communicated more broadly and more often, thus raising questions about the security of that information.
National Research Council, Cryptography's Role in Securing the Information Society, § 1.5 (May 30, 1996) [hereinafter NRC Report]. Likewise, in a 1993 report to Congress, the General Accounting Office warned that "[t]he increased use of computer and communications systems by industry has increased the risk of theft of proprietary information." GAO, Communications Privacy -- Federal Policy and Actions, No. GAO/OSI-94-2, app. Sec. I:1 (1993).
In response to these challenges, the security mechanisms of traditional paper-based communications media -- envelopes and locked filing cabinets -- are being replaced by cryptographic security techniques. Through the use of cryptography, communication and information stored and transmitted by computers can be protected against interception to a very high degree. See, e.g., id. ("[E]ncryption is a primary method of protecting valuable electronic information"). Until recently, there was little demand for encryption capabilities outside of the government. Modern encryption technology -- a mathematical process involving the use of formulas (or algorithms) -- was traditionally deployed most widely to protect the confidentiality of military and diplomatic communications. With the advent of the computer revolution, and recent innovations in the science of encryption, a new market for cryptographic products has developed. Electronic communications are now widely used in the civilian sector and have become an integral component of the global economy. Computers store and exchange an ever-increasing amount of highly personal information, including medical and financial data. In this electronic environment, the need for privacy-enhancing technologies is apparent. See, e.g., David Chaum, Achieving Electronic Privacy, Scientific American, Aug. 1992, at 96. Communications applications such as electronic mail and electronic fund transfers require secure means of encryption and authentication -- features that can only be provided if cryptographic know-how is widely available and unencumbered by government regulation.
Although the technical details of cryptographic systems are quite complex, the underlying concepts can be easily grasped. Cryptography provides a means of accomplishing two crucial functions -- encryption and authentication. Encryption is the process of encoding or "scrambling" the contents of any data or voice communication with an algorithm (a mathematical formula) and a randomly selected variable associated with the algorithm, known as a "key." Only the intended recipient of the communication, who holds the key, can decrypt and access the information. The key is a string of numbers; the longer the string, the stronger the security. For example, the standard bank ATM personal identification number of four numbers would be more difficult to guess if it contained eight numbers. Each number that is added to a key dramatically increases the possible combinations. As such, more computing time and power are required to break the security of the encoded information.
The authentication capabilities of cryptographic systems involve the use of "digital signatures." A digital signature is a cryptographically-based assurance that a particular file or message was created or transmitted by a given person. See generally ABA Science & Technology Section, Digital Signature Guidelines (1996). It thus provides a means of authenticating the integrity of electronically transmitted data and the identity of the sender, much as a handwritten signature verifies the authenticity of a paper record. Digital signatures also provide for the "non-repudiation" of electronic data -- the inability to deny the authenticity of the transmitted information. As we move toward increased reliance on electronic communications -- and the electronic filing of court pleadings -- the importance of such capabilities is apparent.
A. Cryptography is a prerequisite for electronic commerce; export controls impede its development both domestically and globally.
Cryptographic technology is an essential component of the secure communications infrastructure required for meaningful electronic commerce and continued economic development. As CommerceNet, a consortium of firms encouraging the development and use of electronic commerce over the Internet, noted in a recent report, "U.S. companies, competing internationally, must be able to provide strong encryption in environments such as electronic commerce where security concerns are paramount." CommerceNet Network Services Working Group, Toward Enabling Secure Electronic Commerce: The Need for a Revised U.S. Cryptographic Policy 1 (June 26, 1995) [hereinafter Cryptographic Policy] (article available through CommerceNet). The consortium concluded that
[u]nless [Internet] security problems are fixed, companies whose survival may depend on proprietary trade secrets and closely guarded cost and price information, and financial institutions required to provide a payments infrastructure, will not participate [in electronic commerce]. Without the support of financial institutions, it will not be possible to gather the critical density of businesses necessary for a healthy marketplace to develop.
Cryptographic Policy, supra at 3./4/ Likewise, the Internet Architecture Board ("IAB") and the Internet Engineering Steering Group ("IESG"), the bodies which oversee architecture and standards for the Internet, recently observed that:
[a]s more and more companies connect to the Internet, and as more and more commerce takes place there, security is becoming more and more critical. Cryptography is the most powerful single tool that users can use to secure the Internet. Knowingly making that tool weaker threatens their ability to do so, and has no proven benefit.
IAB and IESG Statement on Cryptographic Technology and the Internet 4 (July 24, 1996) ("IAB and IESG Statement") (available on the Internet at ftp://ftp.isi.edu/in-notes/rfc1984.txt).
Governmental restrictions on the export of encryption software -- and the draconian manner in which they are applied -- impede the development of the secure global infrastructure that electronic commerce requires. Less apparent is the effect of these restrictions on the domestic development and use of privacy-enhancing cryptographic technologies, to the detriment of individual rights and commercial concerns within the United States. This domestic impact occurs as a result of the global nature of computer technology and networked communications. A global communications infrastructure requires "interoperability" -- the ability of a user in the United States to communicate with a European user through systems that employ common technological standards. In the context of encryption technology, this requires information to be encrypted and/or authenticated using the same cryptographic system. As long as a user outside of the United States cannot decrypt a message encrypted by a system that may legally be sold only in the United States, the functionality of that system -- and its marketability -- is substantially limited.
The problem of interoperability, coupled with U.S. export restrictions on encryption software, has led U.S. software manufacturers to produce relatively weak security products that can be sold both at home and abroad. This is particularly true of "integrated" products, such as word processing and spreadsheet programs that contain cryptographic capabilities. As the NRC Committee found,
U.S. export controls have had a negative impact on the cryptographic strength of many integrated products with encryption capabilities available in the United States. Export controls tend to drive major vendors to a "least common denominator" cryptographic solution that will pass export review as well as sell in the United States. . . . [E]xport controls have had some impact on the availability of cryptographic authentication capabilities around the world. Export controls distort the global market for cryptography, and the product decisions of vendors that might be made in one way in the absence of export controls may well be made another way in their presence.
NRC Report, supra, § 4.3.1 (footnote omitted).
For a quarter of a century, the United States has led the world in the development of computer and communications technology. That leadership position is being threatened, however, by the anachronistic controls on cryptography at issue in this case. As noted, a global communications infrastructure has emerged (largely as a result of U.S. innovation), requiring sophisticated techniques for the security and privacy of communications. Individuals will increasingly demand that their personal privacy be preserved in the new information environment, and commercial entities will require the highest level of protection for valuable financial and proprietary data. In short, future leadership in the field of information technology will depend upon leadership in the field of information security. The demand for security must be met, if not by U.S. engineers and software developers, then by others. In its 1993 report, the General Accounting Office described such a scenario:
An example of a product type for which export controls affect U.S. global competitiveness is software with encryption capabilities used in international commercial networks. As an example of less stringent foreign controls, a German company contracts with a Japanese company to manufacture a high-speed encryption chip for export to Germany. In contrast, U.S. export controls prevent U.S. companies from exporting such a chip to the German company.
GAO, supra, pt. 5.
Although controls on the export of encryption software are maintained in the name of national security, "[t]he development of foreign competitors in the information technology industry could have a number of disadvantageous consequences from the standpoint of U.S. national security interests." NRC Report, supra, § 4.4.2.
The export restrictions on encryption software at issue in this case have had, and will continue to have, a substantial detrimental effect on the U.S. computer and communications industries. Because these export restrictions require U.S. software manufacturers to market only products with weak and insufficient security features, the restrictions hobble U.S. software manufacturers and severely endanger their future world leadership. Counterintuitively, the export restrictions also endanger U.S. national security interests by allowing foreign encryption technology to flourish, while stunting the development of U.S. encryption technology.
B. Restrictions on the dissemination of cryptographic information infringe upon individual privacy rights.
Governmental regulation of the free flow of information concerning cryptographic security techniques endangers personal privacy as well as commerce. These two aspects of cryptographic regulation were cited in the recent IAB and IESG Statement, supra, which noted that the oversight bodies "are concerned by the need for increased protection of international commercial transactions on the Internet, and by the need to offer all Internet users an adequate degree of privacy." IAB and IESG Statement, supra, at 1. Indeed, cryptographic technology is becoming an increasingly vital tool for human rights activists, political dissidents, and whistle-blowers throughout the world to facilitate confidential communications free from intrusion. See, e.g., David Banisar, A Primer on Electronic Surveillance for Human Rights Organizations, International Privacy Bulletin 3 (July 1993).
The fundamental right to communications privacy has been recognized by the Supreme Court in several landmark cases. Thus, for example, the Court held in Katz v. United States, 389 U.S. 347, 353 (1967), that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied." See also United States v. United States District Court, 407 U.S. 297, 321 (1972) (recognizing importance of requirement that government obtain judicial warrant before conducting domestic security wiretap, and noting warrant requirement's reassuring effect on public). In today's electronic communications infrastructure, cryptography protects the individual privacy interest repeatedly recognized by the Court -- the privacy of one's communications. Cryptography may, in fact, provide the only effective defense against "indiscriminate wiretapping" in the emerging global network. Id.
Cryptographic techniques can also provide confidentiality of personal records, such as medical information, personal financial data, and electronic mail. In a networked environment, such information is increasingly at risk of theft or misuse. Indeed, almost twenty years ago the Supreme Court recognized the risks to personal privacy created by unwarranted disclosures of information maintained by the government itself:
We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files . . . . much of which is personal in character and potentially embarrassing or harmful if disclosed.
Whalen v. Roe, 429 U.S. 589, 605 (1977) (footnote omitted). These risks have increased substantially as virtually all vital records, both public and private, are now maintained electronically.
The privacy interests facilitated by cryptography are recognized internationally, as well as in the United States. Fifteen international human rights and civil liberties organizations, including amici EPIC and ACLU, recently endorsed a "Resolution in Support of the Freedom to Use Cryptography." The resolution notes that "the use of cryptography implicates human rights and matters of personal liberty that affect individuals around the world," and that "the privacy of communication is explicitly protected by Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and national law." See Resolution in Support of the Freedom to Use Cryptography, Sept. 25, 1996 (available on the Internet at http://www.gilc.org/gilc/resolution.html).
In sum, the governmental regulations at issue not only hobble the development of electronic commerce, but jeopardize personal privacy interests as well./5/
I. The text at issue is protected expression under the First Amendment.
In an effort to communicate his ideas regarding encryption, Appellant Karn sought a governmental determination that text written in C programming language embodying cryptographic algorithms stored on a computer diskette was not subject to the export licensing jurisdiction of the International Traffic in Arms Regulations, which request was refused. Although it erred in that it applied the wrong First Amendment standard, the district court correctly determined that "[a]s a threshold matter . . . the protection of the First Amendment extends to the source code and the comments on the plaintiff's diskette," Karn, 925 F.Supp. at 9, and that First Amendment protection is "provided for the communication of scientific or mathematical information" as conveyed via the source code and comments at issue, id. at 9 n.20; see also Bernstein v. U.S. Dep't of State, 922 F. Supp. 1426, 1439 (N.D. Cal. 1996) (expressly holding that source code is speech for purposes of the First Amendment); United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th Cir. 1990) (recognizing that computer programs may warrant First Amendment protection). This court should uphold that determination.
Source code, such as that stored on the diskette at issue, is essentially text written in a "high-level" language, i.e., a form of language closer syntactically and semantically to natural languages like English or Spanish than to the "low-level" languages that actually direct the functioning of a computer. See Bernstein, 922 F. Supp. at 1429 n.3 (citing Encyclopedia of Computer Science 962, 1263-64 (Anthony Ralston & Edwin D. Reilly eds. 3d ed. 1995)). See generally Marvin Minsky, Semantic Information Processing 1-32 (1980). An important function of source code, and of English-language "comments" embedded in source code, is to facilitate communication between and among humans. While object code is designed specifically to be read and interpreted by computers, source code and its accompanying comments are designed to communicate the ideas expressed by programming languages to human readers. See Microsoft Press Computer Dictionary 367 (2d ed. 1994). As one commentator explained:
Just as a mathematics text or written music communicates to a specially trained group of readers, a computer program communicates to its own group of readers. When seen in this light, the First Amendment implications of computer programs are no different from those of many other copyrightable texts.
Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's "Total Concept and Feel," 38 Emory L.J. 393, 431 (1989).
The protection that the First Amendment grants to expression extends to the spoken or written word, see, e.g., Texas v. Johnson, 491 U.S. 397, 402-04 (1989), regardless of the particular form of language chosen to facilitate expression or communication. See Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995), cert. granted sub nom. Arizonans for Official English v. Arizona, 116 S. Ct. 1316 (1996). For purposes of First Amendment analysis, the regulation of any language serving as the vehicle for expression is the regulation of speech. See id. at 934-35 ("[L]anguage -- that is, a sophisticated and complex system of understood meanings -- . . . is by definition speech, and the regulation of any language is the regulation of speech"). For First Amendment purposes, no meaningful difference exists between high-level programming languages, on the one hand, and natural languages like English and Spanish, on the other. All languages, including high-level computer languages, "participate in a complex system of understood meanings within specific communities." Bernstein, 922 F. Supp. at 1435; see also Yniguez, 69 F.3d at 934-35.
Source code written in a high-level programming language such as C -- the programming language at issue in this case -- shares many features with other languages that receive First Amendment protection. The communicative nature and expressive qualities of source code and its accompanying comments are readily apparent. For instance, consider the following text written in C programming language, which might be used in setting up an interactive, politically-oriented site on the Internet:
/* Comment: This program module sets forth interactive
* responses to users' answers given in response to prompts
* on a politically-oriented interactive web page.
*/
enum { conservative, liberal, radical, unknown }
Political_Profile;
/* (insert code to set Political_Profile here) */
if (Political_Profile == conservative) {
printf("A conservative is a man who has two \
perfectly good legs who, however, has never \
learned to walk forward. --Franklin Delano \
Roosevelt.\n");
} else if (Political_Profile == liberal) {
printf("A liberal is a man who is willing to spend \
someone else's money. --Carter Glass.\n");
} else if (Political_Profile == radical) {
printf("I never dared to be a radical when young, \
for fear it would make me conservative when old. \
--Robert Frost.\n"};
} else {
printf("The marvel of all history is the patience \
with which men and women submit to burdens \
unnecessarily laid upon them by their governments. \
-- William E. Borah.\n"'
}
The series of C programming language statements set forth above expresses ideas in a structured form. Similarly, the source code at issue in the instant case expresses ideas in a structured form to a specialized audience./6/ This communication of ideas, whether emanating from an 18th Century printing press or from a 20th Century source code editor, warrants the protection of the First Amendment.
Copyright law also supports, by analogy, the extension of the First Amendment to encompass source code. See Bernstein, 922 F. Supp. at 1436. The copyright statute contemplates that authors will use computer programs as a vehicle for expressing their ideas, and the protection of copyright law in fact extends to the expression of ideas embodied in computer programs. See H.R. Rep. No. 94-1476 at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667; see also 17 U.S.C. § 101, at 878 (1994) (granting copyright protection to works "expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, . . . tapes, disks, or cards, in which they are embodied"); 17 U.S.C. § 102(a)(1) (1994); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983) (extending copyright protection to source code as a "literary work"), cert. dismissed, 464 U.S. 1033 (1984). Furthermore, the Supreme Court has explained that the Copyright Act's protection of the expression of ideas embodies the core values of the First Amendment. See Harper & Row Publishers, Inc. v. Nation, 471 U.S. 539 (1985); see also Note, Clarifying the Copyright Misuse Defense: The Role of Antitrust Standards and First Amendment Values, 104 Harv. L. Rev. 1289 (1991) (the fundamental goal of copyright law -- to foster the creation and the dissemination of ideas and information -- is rooted in the First Amendment); United States v. LaMacchia, 871 F. Supp. 535, 537 (D. Mass. 1994) (noting, in case involving copyrighted computer software, that objective of copyright law is to promote First Amendment concern for the free dissemination of ideas). Because copyright law protects expression, including text written in a programming language, the First Amendment protection of expression naturally extends to encompass text written in programming languages as well.
For the reasons stated above, this Court should conclude that the district court was correct in its threshold determination that "the protection of the First Amendment extends to the source code and the comments on the plaintiff's diskette," Karn, 925 F. Supp. at 9, and that First Amendment protection is "provided for the communication of scientific or mathematical information" as conveyed via plaintiff's source code and comments, id. at 9 n.20.
II. The Act and Regulations constitute an unconstitutional prior restraint on protected expression.
A. The Act and Regulations as applied to expression represent a classic prior restraint that fails to comport with the Pentagon Papers standard.
Because the Arms Export Control Act and its implementing Regulations require an individual to secure a government-issued license before the publication or dissemination /7/ of protected expression, they embody a classic form of prior restraint on expression. See Bernstein, 922 F. Supp. at 1438 (on defendant's motion to dismiss for lack of justiciability, court finds colorable plaintiff's claim that the Arms Export Control Act effects an unconstitutional prior restraint on protected expression, viz., source code with cryptographic content). The Supreme Court has repeatedly held that
[a statute which] makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.
Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969). As the Supreme Court explained early in this century, "it has been generally, if not universally, considered that it is the chief purpose of the guarantee [of freedom of expression] to prevent previous restraints upon publication," as prior restraints are "the essence of censorship." Near v. Minnesota, 283 U.S. 697, 713 (1931); see also id. at 713-15 (describing our Nation's centuries-old history of repugnance toward prior restraints). Accordingly, "[a]ny system of prior restraints of expression comes to [the] Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).
The circumstances of this case present precisely the type of "grave dangers of a censorship system" that the Supreme Court has repeatedly condemned in its discussion of prior restraints. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 228 (1990). The government's interest in this case rests clearly and explicitly on the desire to suppress expression that it deems undesirable. The Act and Regulations embody an outright prohibition on the dissemination of expression that the government considers harmful -- not a mere regulation of that expression. Cf. Cox v. New Hampshire, 312 U.S. 569 (1941) (parade permit licensing scheme found constitutional where licensing official was not allowed to suppress expression and licensing scheme merely facilitated regulation of street usage to assure police protection and avoid overlapping parades). Furthermore, the instant case does not involve a licensing scheme intended to distinguish between protected and unprotected expression, which might call for the application of a less stringent constitutional standard. See Near, 283 U.S. at 714-16 (describing separate treatment, for purposes of prior restraint analysis, of statutes whose purpose is to distinguish between speech that is protected by the First Amendment and speech that is outside First Amendment protection, such as obscene publications or fighting words).
In any case involving a prior restraint on protected expression, such as that embodied in the Act and Regulations, the government "carries a heavy burden of showing justification for the imposition of such a restraint." New York Times, 403 U.S. at 714. The First Amendment's ban on prior restraints may be overridden only where the government conclusively establishes that the regulation falls within the one recognized exception to the ban on prior restraints applicable in cases involving national security concerns. This exception to the rule against prior restraints has been construed very narrowly: it is met only where "[publication] will surely result in direct, immediate, and irreparable damage to our Nation or its people," id. at 730 (Stewart, J., joined by White, J., concurring), or where there is "governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea," id. at 726-27 (Brennan, J., concurring); see also Near, 283 U.S. at 716.
This extremely narrow exception to the prohibition on prior restraints "refers to the fact that, as a matter of procedural safeguards and burden of proof, prior restraints even within a recognized exception to the rule against prior restraints will be extremely difficult to justify." See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 592 (1976) (Brennan, J., joined by Stewart, J., and Marshall, J., concurring). Within the sole possible exception to the prohibition against prior restraints, therefore, the government's burden is "formidable," and indeed "almost insuperable." Id. at 593-94. Thus, for example, even in the face of the government's assertion that the publication of a classified Defense Department study would interfere with national security, produce the death of military personnel, and prolong the Vietnam War, the Supreme Court refused to uphold a prior restraint imposed on publication, holding that the government failed to meet its "'heavy burden of showing justification for the imposition of such a [prior] restraint.'" New York Times, 403 U.S. at 714 (Brennan, J., concurring).
In the instant case, the government does not even contend that the publication or dissemination of the text at issue will cause "direct, immediate, and irreparable damage to the Nation or its people." Id. at 730 (Stewart, J., joined by White, J., concurring)./8/ Under the Regulations, the government may ban the dissemination of source code if it determines that the source code text is designed or adaptable "for a military application, and has significant military or intelligence applicability such that control under this [Regulation] is necessary." See 22 C.F.R. § 120.3(b); see also id. § 120.4(d) (describing variety of factors to be weighed by licensor). Notably, the government has weighed these factors and determined that even an academic paper setting forth a professor's scientific research in the area of cryptography was subject to restriction on its publication. See Bernstein, 922 F. Supp. at 1434. This sort of discretionary, standardless prepublication review of protected expression embodied in the Regulations fails to satisfy the standard set forth in New York Times and poses the grave dangers of a censorship system that the Supreme Court has repeatedly condemned. See, e.g., Niemotko v. Maryland, 340 U.S. 268 (1951).
With one exception -- which is readily distinguishable from the instant case -- amici are aware of no Supreme Court case that has ever upheld a government licensing system, such as the one embodied in the Act and Regulations, that requires authors to submit their texts to a prepublication governmental review and permit process. In Snepp v. United States, 444 U.S. 507 (1980) (per curiam), the Supreme Court upheld an order requiring a former CIA agent to submit his CIA-related writings to prepublication review by the Agency. However, the Court expressly rested its decision on the fact that the former CIA agent had, as an express condition of his employment with the CIA, executed an agreement promising that he would not publish any information relating to the CIA either during or after the term of his employment without specific prior approval of the Agency. Because no such governmental employment relationship or agreement is involved in this case, Snepp's countenance of a prepublication license scheme is readily distinguishable.
Because the Act and Regulations embody a paradigm form of prior restraint on protected expression in which undue discretion is vested in the government licensor, see Shuttlesworth, 394 U.S. 147; Niemotko, 340 U.S. 268, and which does not comply with the standard of New York Times, the Act's licensing scheme must be found unconstitutional.
B. The prior restraint embodied in the Act and Regulations is also unconstitutional because it fails to provide necessary procedural safeguards.
The Act and Regulations embody a prior restraint that is unconstitutional for a second, independent reason: here, as in FW/PBS, the statutory scheme lacks the fundamental procedural safeguards that the Supreme Court has repeatedly identified as essential to a government licensing scheme -- even one designed to separate protected from unprotected speech. See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965).
To pass constitutional muster, even an otherwise valid prior restraint on protected expression must provide at least the following two procedural safeguards:
- Definite and reasonable limitations on the time within which the licensor must decide whether to issue the license; and
- Expeditious judicial review of the licensing decision must be available.
See Freedman, 380 U.S. at 58-59; Bantam Books, 372 U.S. at 70; FW/PBS, 493 U.S. at 227-230.
The First Amendment guarantee of freedom of expression is abridged whenever the government conditions the enjoyment of protected expression upon prior permission from the government without adequate procedural safeguards on the permit process. See FW/PBS, 493 U.S. at 223-27. Notably, even otherwise valid restrictions on speech that constitute prior restraints are unconstitutional if they fail to provide the Freedman procedural safeguards. See 11126 Baltimore Boulevard, Inc. v. Prince George's County, Md., 58 F.3d 988, 995 (4th Cir.), cert. denied, 116 S. Ct. 567 (1995).
The Act and Regulations fail to provide the required procedural safeguards for prior restraints, first, because they fail to impose time limits on the government's commodity jurisdiction or export licensing determinations./9/ "A prior restraint on speech that imposes no time limitations on the decision-making process plainly fails to satisfy the first requirement set forth in Freedman." Baltimore Boulevard, 58 F.3d at 997; see also FW/PBS, 493 U.S. at 227. Although the reasonableness of the time period of the licensor's decision-making process may vary in different contexts depending on the type of judgments involved in the licensing determination, an open-ended time frame such as that permitted under the Regulations clearly lacks this requisite procedural safeguard. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 374 (1971); Baltimore Boulevard, 58 F.3d at 997; see also Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142 (1968) (per curiam) (finding that 50-57 day period for obtaining an administrative decision in film censorship context did not amount to a "specified brief period" for purposes of the Freedman analysis). Indeed, the 63-day period for obtaining an administrative decision in the instant case demonstrates that the Act and Regulations fail to provide this necessary procedural safeguard.
Second, the Act and Regulations fail to provide for prompt judicial review of the government's licensing decision. The Supreme Court has repeatedly emphasized the importance of the availability of expeditious judicial review of licensing determinations in the prior restraint context. See Freedman, 380 U.S. at 58-59; Thirty-Seven Photographs, 402 U.S. at 368; see also United States v. Pryba, 502 F.2d 391, 405 (D.C. Cir. 1974) ("[B]ecause only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final [prior] restraint."). Amici are aware of no case in which a federal court has upheld a regulation imposing a prior restraint on protected expression where judicial review of the licensor's decision was expressly unavailable, as the government contends is the case under the Act and the Regulations, and as the lower court so held. See Baltimore Boulevard, 58 F.3d at 1000-01 (collecting cases).
Even assuming the licensing decision required under the Act was judicially reviewable -- contrary to the district court's conclusion /10/ -- the 127-day time period between the date judicial review was sought and the date a final decision was rendered in this case would not constitute "prompt judicial review." Compare Thirty-Seven Photographs, 402 U.S. at 372-73 (holding that delays in judicial determination as long as three months cannot be sanctioned) and East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 225 (6th Cir.) (holding that potential delay of over five months before judicial hearing is impermissible), cert. denied, 116 S. Ct. 277 (1995) and Baltimore Boulevard, 58 F.3d at 1001 (holding that delay of 103 days prior to obtaining judicial ruling on licensing decision is impermissible) with Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 690 n.22 (1968) (holding that prompt judicial review was assured by provision requiring judicial determination within nine days of administrative decision) and Thirty-Seven Photographs, 402 U.S. at 372-74 (construing statute to require a judicial decision within 60 days to uphold constitutionality of statutorily imposed prior restraint). Furthermore, if the government and the lower court are correct in their conclusion that judicial review of the government's licensing determination is expressly prohibited under the Act, see Karn, 925 F. Supp. at 6, then the Act would clearly embody a prior restraint wholly deficient as regards the "prompt judicial review" procedural safeguard./11/
In sum, the Act and the Regulations impose a prior restraint on protected expression that does not satisfy the requirements of New York Times and vests undue discretion with the government licensing official. Even if the Act embodied an otherwise valid licensing scheme, it is unconstitutional because it fails to provide definite and reasonable limitations on the time within which the government must issue its licensing determinations and fails to provide for -- indeed, as the government and the lower court contend, expressly prohibits -- prompt judicial review of licensing determinations. Thus, the Act and the Regulations constitute a system of unconstitutional prior restraint of protected expression in violation of the First Amendment.
III. The Act is squarely aimed at the suppression of expression and fails strict scrutiny.
Under the Act and Regulations, the government seeks to restrict the dissemination of certain text because it considers such expression to be too dangerous to export. Thus, even if not analyzed as a prior restraint, the licensing scheme is constitutionally suspect because it is squarely aimed at the suppression of allegedly dangerous or harmful expression. If the diskette contained source code embodying word processing applications, for example, instead of source code embodying encryption algorithms, the government would no longer have an interest in restricting its dissemination. The licensing scheme therefore embodies a content-based regulation aimed at the suppression of expression.
As discussed above, text written in a programming language constitutes protected expression for First Amendment purposes. Because the Arms Export Control Act regulates expression itself -- not expressive conduct or symbolic speech --the district court erred by applying the analysis set forth in United States v. O'Brien, 391 U.S. 367 (1968). Contrary to the government's assertion, the "functional" nature of a text written in programming language neither renders it unprotected by the First Amendment nor reduces the level of protection granted to such expression under the First Amendment. Different types of functional written expression -- such as directives, instructions, recipes, and how-to manuals -- all qualify as protected speech under the First Amendment. See Bernstein, 922 F. Supp. at 1435; Progressive, 467 F. Supp. 990. The more lenient First Amendment analysis set forth in O'Brien is not applicable to determine the protection granted to written or spoken language -- even if such language is functional in nature./12/ See Texas v. Johnson, 491 U.S. at 402-04. Furthermore, the fact that a speaker expresses himself or herself in a language other than English does not render such language "conduct" instead of "speech" for purposes of First Amendment analysis. See Yniguez, 69 F.3d at 934-36 (holding that governmental regulation of languages other than English implicates pure speech, not mere expressive conduct).
Moreover, the fact that the text at issue is stored on a computer diskette, instead of on paper or some other traditional medium of expression, does not render it unprotected by the First Amendment. On the contrary, throughout this century the First Amendment gradually has been extended to encompass expression via new media, to the point where today, "[t]o an increasing degree, the more significant interchanges of ideas [occur] in electronic media." See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct. 2374, 2414 (1996) (Kennedy, J., joined by Ginsburg, J., concurring in part, concurring in judgment in part, and dissenting in part). It is undisputed that the First Amendment applies to expression communicated via such new technologies as computer bulletin boards, computer networks, and the Internet. See, e.g., American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996); see also Symposium: Emerging Media Technology and the First Amendment, 104 Yale L.J. 1613 (1995). Thus, notwithstanding the fact that the text at issue is stored on a computer diskette instead of on paper, the text nonetheless constitutes protected expression under the First Amendment.
Because the Act regulates expression based on content -- and does not merely impose a content-neutral regulation on the time, place, or manner of such expression -- the Act is subject to heightened First Amendment scrutiny. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972). As the Supreme Court explained in Mosley, a government regulation that is aimed at the suppression of expression and that delineates permissible and impermissible expression in terms of its subject matter is unconstitutional, absent a compelling governmental interest and narrow tailoring of means to end:
[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . . . The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.
Id. at 95-96 (internal quotation marks omitted). Such content-based regulations of expression may be upheld only if the court is persuaded that the regulation is necessary to serve a compelling government interest and is narrowly drawn to achieve that end. See Perry, 460 U.S. at 45; Capitol Square Review & Advisory Bd. v. Pinette, 115 S. Ct. 2440, 2446 (1995).
The government asserts that the restrictions it imposes on the dissemination of source code text containing cryptographic algorithms is premised upon national security concerns. Once subjected to scrutiny, however, the government's national security rationale evaporates, for the very text at issue may be downloaded from the Internet from almost any point in the world. See First Karn Declaration, Exh. A. Furthermore, under the Regulations, the exact text at issue may be published without restriction when printed on the pages of a book. See supra at 2-3 n.2. The means the government has chosen cannot achieve its asserted national security ends so long as individuals can access the very same, allegedly dangerous text via the Internet or by reading a book. Because the government's means of regulating source code with cryptographic content is not narrowly tailored to achieve its asserted national security purpose, the Act and Regulations fail to withstand the strict constitutional scrutiny applicable to content-based regulations, and they should therefore be struck down under the First Amendment.
The judgment of the District Court below should be reversed.
Respectfully submitted,
____________________________
Ivan K. Fong, Bar No. 417694
Dawn C. Nunziato, Bar No. 451636
COVINGTON & BURLING
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, DC 20044
(202) 662-6000David L. Sobel, Bar No. 360418
Marc Rotenberg, Bar No. 422825
ELECTRONIC PRIVACY INFORMATION CENTER
666 Pennsylvania Ave., SE
Washington, DC 20003
(202) 544-9240Counsel for Amici Curiae
Date: October 7, 1996
FOOTNOTES
1 See also 22 U.S.C. § 2778(g)(6) ("The President may require a license . . . before any item on the United States Munitions List is . . . transferred to the control or possession of a foreign person . . . .").
2 Karn had previously submitted a Commodity Jurisdiction Request for a book authored by Bruce Schneier entitled Applied Cryptography: Protocols, Algorithms and Source Code In C (2d ed. 1995) which contains listings of source codes implementing, and instructions on the use of, cryptographic algorithms. In particular, Part Five of this book contains source code listings for 14 cryptographic algorithms, written in the C programming language. The book also refers to two computer diskettes that are available from the author that include cryptographic source codes, including the source codes printed in Part Five of the book.
Ruling on Karn's Commodity Jurisdiction Request for Applied Cryptography, the Office of Defense Trade Controls determined that the book, including the extensive source codes listings in Part Five, was in the "public domain," and hence not subject to the export licensing requirements of the ITAR. The ODTC specifically stated, however, that its determination of the public domain status of the book did not extend to the two diskettes containing cryptographic source code referenced in the book.
3 Despite the government's contention that judicial review of the government's commodity jurisdiction determination is prohibited, the government concedes, and the district court held, that plaintiff's constitutional challenge to the Act and the Regulations is amenable to judicial review. See Karn v. United States Dep't of State, 925 F. Supp. 8, 8-9 (D.D.C. 1996) (citing Webster v. Doe, 486 U.S. 592, 602-05 (1988)).
4 The economic significance of cryptographic technology is recognized in the Promotion of Commerce On-Line in the Digital Era (Pro-CODE) Act of 1996 now pending before the Senate Committee on Commerce, Science, and Transportation. The legislation, which would liberalize export controls on encryption software, contains the following findings:
The full potential of the Internet for the conduct of business cannot be realized as long as it is an insecure medium in which confidential business information and sensitive personal information remains at risk of unauthorized viewing, alteration, and use.
Encryption of information enables businesses and individuals to protect themselves against the unauthorized viewing, alteration, and use of information by employing widely understood and readily available science and technology to ensure the confidentiality, authenticity, and integrity of information.
S. 1726, 104th Cong. § 2(a)(5)-(6) (1996).
5 On October 1, 1996, the Clinton Administration announced a policy initiative on export controls of cryptographic software. See Elizabeth Corcoran, U.S. to Ease Encryption Restrictions; Privacy Advocates Wary of Proposal for Software Exports, The Wash. Post, Oct. 1, 1996, at A1. Under the initiative, administrative responsibility for cryptography export controls will eventually be transferred to the Department of Commerce and current restrictions will be liberalized to some extent. No new regulations have been issued to date, however, and it is therefore impossible to speculate about such regulations' potential effect on this case. It remains to be seen how the implementation of the policy initiative will contribute to the rehabilitation of U.S. companies' leadership position in the communications and computer industries, and whether the initiative will ameliorate the dangers to personal privacy interests posed by the present restrictions on cryptographic technologies. If and when new regulations are issued, amici respectfully request that the Court allow additional briefing on the question of the effect of such regulations on this case.
6 A segment of the actual source code at issue in this case is set forth below:
extern void deskey(unsigned char *, short); /* hexkey[8] MODE * Sets the internal key register according to the hexadecimal * key contained in the 8 bytes of hexkey, according to the * DES, for encryption or decryption according to MODE. */ extern void usekey(unsigned long *); /* cookedkey[32] * Loads the internal key register with the data in cookedkey. */ extern void cpkey(unsigned long *); /* cookedkey[32] * Copies the contents of the internal key register into * storage located at &cookedkey[0]. */
7 The Regulations prohibit the dissemination of "defense articles" outside of the United States, as well as the disclosure of technical data to foreigners, whether in the United States or abroad. See 22 C.F.R. § 120.17. Thus, the Regulations would prohibit the disclosure of source code text with cryptographic content to a foreign computer science student attending school within the United States. See, e.g., Michele Fuetsch, Professor Fights U.S. on Encryption: CWRU Computer Law Teacher Needs License, The Plain Dealer, Aug. 8, 1996, at 1B (professor sues United States, claiming that Act and Regulations unconstitutionally require him to obtain government-issued license before disclosing cryptographic software and related materials to foreign students in his class). Similarly, the Regulations would prohibit uploading such source code text to a site on the Internet, where it is accessible worldwide. Because the purview of the First Amendment protection of expression does not apply solely to communications among United States citizens, nor does it stop at the nation's borders, see Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509 n.9 (9th Cir. 1988), the Regulations' restrictions on dissemination of protected expression to foreigners and to foreign countries is within the purview of the First Amendment. Similarly, because the Regulations prohibit uploading the text at issue to a site on the Internet -- a communicative act to which the First Amendment undoubtedly applies, see Reno, 929 F. Supp. 824 -- the Regulations must withstand First Amendment scrutiny.
8 In United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), the district court applied the New York Times standard to its consideration of a governmental ban on the publication of secret technical material on the design of the hydrogen bomb. The court issued an order preliminarily enjoining the publication of the article, thereby sanctioning "the first instance of prior restraint against a publication in this fashion in the history of this country." Id. at 996. The court based its decision on its fear that a mistake in ruling against the United States could lead to "thermonuclear annihilation for us all," in which event "the right to publish becomes moot." Id. The district court never reached the merits of the case, nor was its preliminary injunction ruling ever reviewed at the appellate level, as the government abandoned its proceedings against the publisher prior to a hearing regarding a permanent injunction, apparently because similar information regarding nuclear weapons was published by third parties while the Progressive litigation was underway. See Gerald Gunther, Constitutional Law 1427 n.3 (11th ed. 1985). As discussed infra, in the instant case the government has come nowhere near establishing that the dissemination of the text at issue would present consequences akin to "thermonuclear annihilation for us all" credited by the Progressive court.
9 The regulations merely provide that "[i]f after 45 days the Office of Defense Trade Controls has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Center for Defense Trade, that this determination be given expedited proceeding." See 22 C.F.R. § 120.4(e), pt. 123 (1996).
10 In its decision, the district court ultimately concluded that judicial review of the licensing determination was expressly precluded by the Act. See Karn, 925 F. Supp. at 6.
11 Notably, the Office of Legal Counsel of the Department of Justice concluded in 1981 that the ITAR export restrictions on cryptographic information constitute an unconstitutional system of prior restraint because the regulations do not "impose on the government the burden of obtaining prompt judicial review of any State Department decision barring the communication of cryptographic information." OLC Memorandum Opinion for the Office of Munitions Controls, July 1, 1981, published at 5 Op. OLC (1981) at 205.11 (emphasis added). Despite the OLC's assessment and recommendations, the Act and the Regulations still condition the publication of protected expression on the issuance of a government-issued license and fail to provide for prompt judicial review of the government's licensing determinations.
12 Rather, the O'Brien analysis of symbolic speech or expressive conduct is appropriate only where the speaker expresses himself or herself using means other than spoken or written language, see Spence v. Washington, 418 U.S. 405, 409 (1974), such as by burning a draft card, see O'Brien, 391 U.S. at 367, or by engaging in nude dancing, see Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-67 (1991).