Forwarded From: Nicholas Charles Brawn <ncb05@uow.edu.au>
Forwarded From: Julian Assange <proff@iq.org>
Posted To: aucrypto@suburbia.net
Professor loses crypto case
By Courtney Macavinta
Staff Writer, CNET NEWS.COM
July 6, 1998, 2:50 p.m. PT
An Ohio professor does not have a First Amendment right to post
encryption code on his course Web site, a federal court has ruled.
Flying in the face of another federal ruling now being appealed by the
government in California, the U.S. District Court for the Northern
District of Ohio ruled on Friday that encryption software code doesn't
warrant the same constitutional protection as other speech.
"The court finds that exporting source code is conduct that can
occasionally have communicative elements. Nevertheless, merely because
conduct is occasionally expressive does not necessarily extend First
Amendment protection to it," the decision states.
In the closely watched case, Case Western Reserve University law
professor Peter Junger challenged federal restrictions on strong
encryption. The technology requires an export license because it is
considered a potential weapon under the law. Junger waged the court
fight in 1996 to ensure his right to teach foreign and local students
about the data security technology by posting material on his Web
site.
Although books containing encryption code can be shipped overseas
without a license, Web sites containing the code are not protected to
the same extent by the First Amendment, the Ohio Court ruled.
Ohio federal Judge James Gwin's opinion conflicts with a landmark
ruling in San Francisco last August, in which federal Judge Marilyn
Hall Patel called software a "language" that held the same
constitutional protection as books or other forms of public
speech. Patel said the government's rules were unconstitutional.
The California case was filed by University of Illinois math professor
Daniel Bernstein, who wanted to post online the code of an encryption
program he wrote. Patel's injunction hasn't gone into effect yet
because the Justice Department appealed the ruling. A decision is
expected soon by the Ninth Circuit Court of Appeals.
The court in Ohio disputed the Bernstein ruling.
"The court in Bernstein misunderstood the significance of source
code's functionality," Gwin ruled.
"Source code is 'purely functional' in a way that the Bernstein
court's examples of instructions, manuals, and recipes are not," he
continued. "Unlike instructions, a manual, or a recipe, source code
actually performs the function it describes. While a recipe provides
instructions to a cook, source code is a device, like embedded
circuitry in a telephone, that actually does the function of
encryption."
Junger has not announced whether he will appeal the decision.
The outcome of the Bernstein and Junger cases--along with
cryptographer Philip Karn's case, which has been kicked back down to
the district court in Washington--could decide an ongoing conflict
over the limits on encryption exports.
The software industry has been trying to move Congress and the
president to throw out the rules, which they say are bureaucratic and
prohibit them from competing with foreign manufacturers that can ship
stronger products without restrictions.
But a change in policy has been slow going, and the courts aren't
moving much faster.
A jurisdictional change is holding the case filed in September 1995 by
Karn, who was denied permission to export a computer disk containing
the source code in the book Applied Cryptography.
But with a likely appeal in Junger's case and the anticipated court of
appeals ruling in Bernstein's case, the encryption debate is hedging
its way toward the Supreme Court, legal experts say.
"If this issue is going to go the court of appeals in Junger's case,
there is a decent chance there would be a spilt in the circuit's
decisions, and it could go to the Supreme Court," said Stewart Baker,
the former general counsel at the National Security Agency and a
partner at the law firm Steptoe & Johnson.
Those who believe academia has a right to post encryption code online
say the government's licensing policy is stifling academic freedom and
free speech. The district court's decision in Bernstein's case is the
ruling free speech advocates would want upheld by the high court.
"I'm disappointed in the [Ohio ruling]. I don't think it was the right
decision," Cindy Cohn, an attorney in the Bernstein case, said
today. "I think the court didn't consider sufficiently that this is a
discretionary licensing scheme."
Barry Steinhardt, president of the Electronic Frontier Foundation,
which is supporting both professors in their court fights, agreed that
the conflict between the district courts could help the bigger fight
to overturn the export restrictions.
"The district court in Ohio found that software is not protected
speech," he said today. "If the [Ohio ruling] would become the law of
the land, we'd have no First Amendment protection for a wide range of
expression in the digital age.
"If we win in the Ninth Circuit and Patel's order goes into effect, it
would have immediate impact because that is where the greatest
concentration of high-tech businesses and professionals are,"
Steinhardt added.
But former NSA attorney Baker predicts the high court would likely
hand down a ruling that upholds the government's export limits.
"This is a conservative court. They're inclined to defer to the
government on national security issues," he said.
"The court is reluctant to speak broadly in an area that would be
cutting back the government's authority," he added. "It requires more
enthusiasm for second-guessing the government than I think most judges
have."
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Received on Tue Jul 7 11:20:00 1998