July 6, 1998 3:50 PM PDT
Professor loses crypto case
Flying in the face of another federal ruling now being appealed by the U.S. government in California, the U.S. District Court for the Northern District of Ohio ruled 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.
Judge James Gwin's opinion conflicts with a landmark ruling in San Francisco last August, in which another federal jurist, Marilyn Hall Patel, called software a "language" that held the same constitutional protection as books or other forms of public speech. Judge 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 the code of an encryption program he wrote online. 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.
Gwin disputed the Bernstein ruling. "The court in Bernstein misunderstood the significance of source code's functionality," he 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 Clinton administration 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-footed, 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 predicted 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," Baker added. "It requires more enthusiasm for second-guessing the government than I think most judges have."