September 3, 1997 3:15 PM PDT

Crypto class case at square one

Cleveland law professor Peter Junger today filed a new challenge to federal regulations that prevent him from teaching encryption technology to foreign students or posting his course on the Net.

The filing comes in the wake of another federal ruling involving Daniel Bernstein, a University of Illinois professor who on August 25 won the right to publish his encryption program on his Web site without fear of prosecution. (See related story)

Junger initially sued the government last August, but he has now filed a revised complaint in the U.S. District Court of Eastern Ohio due to White House rules that switched jurisdiction over encryption export licenses from the State Department to the Commerce Department in January.

The professor wants a court to clarify that it is within his First Amendment right to teach his "Computers and the Law" class online and to post any encryption program on his Web site. His course covers patent and copyright protection of encryption software, as well as computer security legal issues.

Junger said he needs to make encryption available to students so that they can understand the technology. Although his site was created for the course, he also links to other controversial Net sites that he claimed have faced censorship elsewhere on the Internet.

"If the government succeeds in the case, it means that it can require a license for anybody who writes a computer program," Junger said today. "I'm a strong believer in free speech. Whenever something on the Internet is censored, I feel responsible to make a copy available on my site--and the government is trying to suppress this encryption software."

It is a federal crime to export strong encryption without a license, even if a person is "exporting" the program via an academic Web site. Federal law deems such activity a threat to national security, as the government has argued in two other cases involving the publishing and exporting of electronic materials about encryption.

A 25-year veteran of Case Western Reserve School of Law, Junger's previous case is now basically moot. His lawyers will start all over with today's filing that reflects the shift of regulatory authority to Commerce.

Junger has already filed three applications with Commerce asking for clarification on his ability to post 13 items online, including a chapter of his course book and international copies of Pretty Good Privacy, for example.

"Since the change in January, we've gone through the channels at Commerce and were told a license is necessary to make available certain encryption programs online," Raymond Vasvari, an attorney for Junger, said today. "We're looking for a determination from the court that this regulatory scheme violates the professor's free speech under the First Amendment."

The jurisdictional change has also held up another crypto law challenge in Karn vs. the U.S. Department of State, filed by cryptographer Philip Karn in September 1995. Karn was denied permission to export a computer disk containing the source code in the book Applied Cryptography.

Junger's lawyers also asked Commerce about the legality of providing Net links to strong encryption programs overseas. "The department initially said, 'Posting links would not be considered an export,'" said Gino Scarselli, Junger's lawyer. "I then asked them to clarify this, and they said the use of a links may in some cases constitute an export."

Commerce's gray area as to what is actually legal is only part of the issue. The real question the case brings up is whether books in digital form, courses, or other online material about encryption are protected as speech in the United States.

Hard-copy books can be exported and are shielded by the First Amendment. A ruling by U.S. District Court Judge Marilyn Hall Patel says publishers of digital material are protected too.

Last week, she issued an order in San Francisco forbidding the government from prosecuting Bernstein, who was seeking to post an encryption program online called "Snuffle," which he wrote as a graduate student. For now, the ruling only applies to Bernstein, but Patel's ruling made clear that it was Bernstein's constitutional right to publish his program.

"All of her opinions were very thoughtful, so they should carry weight with any district judge," Scarselli said. "Professor Junger's activities are a bit broader than Bernstein's. He's not just looking to place his own code online but the works of others as well. However, Bernstein's lawyers also brought a challenge to the law that would affect anyone."

 

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