[ISN] AUCRYPTO: Professor Junger looses ohio crypto case.

From: mea culpa (jerichot_private)
Date: Mon Jul 06 1998 - 20:53:07 PDT

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     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
    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
    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
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