Crypto free speech case in court

Disputing a federal law that requires "exporters" of encryption to be licensed, attorneys for Cleveland law professor Peter Junger argued in court today that he has a constitutional right to teach foreign and local students about the data security technology by posting material on his Web site.

The U.S. District Court of Eastern Ohio today heard oral arguments for an hour and a half in Junger's case against the Commerce Department, which enforces the federal export restrictions on strong encryption. The technology scrambles digital communication, making it impossible to understand unless the recipient has a personal key to unlock the data.

Attorney Ray Vasvari on crypto as protected speech

Encryption is considered a potential weapon under federal law; subsequently, a license is required to export strong encryption products.

But Junger is a professor at Case Western Reserve University, and not an arms dealer, his attorneys contended. Pointing to a federal ruling in San Francisco last year, Junger's counsel held that software code is a form of speech and therefore is protected by the First Amendment.

"We're looking for an invalidation of the regulations that prohibit our client, Professor Junger, from posting his particular Web page, which contains content that the government is calling encryption software," Raymond Vasvari, cocounsel to Junger, said today.

"He is capable of distributing three lines of encryption code in a hard copy of his course book," Vasvari added, "[but] he's not capable without a license from the Commerce Department to distribute it on the Web. If he were to do it without a license he could face severe civil penalties."

Overall, the professor has filed three applications with Commerce asking for clarification on his ability to post 13 items, including a chapter of his course book, copies of the internationally available product Pretty Good Privacy, or three lines of the RSA algorithm, for example.

Junger first challenged the law in 1996, when he was told that an export license would be necessary to post his "Computers and the Law" class online, which would link to certain encryption products. A string of legal hoops and changes in jurisdiction over the case led him to refile the case last fall. After the oral arguments today, attorneys expect a decision within a few months, which no doubt will be appealed.

The government argued today that encryption is not a form of speech. An attorney for the Justice Department said all the government is trying to do is regulate the function of the software.

Law enforcement officials contend that if encryption falls into the wrong hands it can be used by high-tech criminals to cover their tracks. But those who want the export limits overturned counter that encryption already is widely available around the world, where it can be shipped without a license.

Junger is fighting the law because he says it stifles his academic freedom.

"If the government can restrict the writing and publication of encryption programs because they are useful--and that is basically what the government is claiming--without regard to the authors' and publishers' constitutional rights under the First Amendment, then, by the same reasoning, it could forbid the publication of any computer program that earns the disfavor of the authorities," Junger said in a statement today.

In a similar case filed by University of Illinois math professor Daniel Bernstein, a federal judge in San Francisco ruled in favor of the educator, stating that authors of any software are protected by the First Amendment and should not be stifled by the encryption export regulations.

In August, U.S. District Judge Marilyn Hall Patel issued the landmark decision calling software a "language." She issued an injunction allowing Bernstein to post online the code of an encryption program he wrote. But the injunction hasn't gone into effect because the Justice Department appealed the ruling.