July 9, 1998 11:15 AM PDT

Professor to appeal crypto ruling

An Ohio professor is going to appeal a court's decision barring him from posting encryption code on his course Web site.

"We don't know where the hell the resources are going to come from, but we have to appeal it," Case Western Reserve University law professor Peter Junger said today.

Junger brought the case to See related story:
Professor loses crypto case court in 1996 to ensure his right to teach students domestically and abroad about the data security technology by posting the code on his Web site. His case challenged federal restrictions on the technology, which requires an export license because it is considered a potential weapon under the law.

The U.S. District Court for the Northern District of Ohio on Friday ruled that encryption software code should not get the same First Amendment protection as other types of 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.

Junger said today that Judge James Gwin, who issued the decision, is "mistaken to think that computer software sitting on a floppy disk is a functional device" as he stated in the ruling. "It's just text, and purely protected by the First Amendment."

The court ruled that Web sites containing the code should not receive the same First Amendment protection as books--although books containing crypto code can be exported without a license.

Judge Gwin's opinion flies in the face of a federal court ruling last August in San Francisco. In that case, Judge Marilyn Hall Patel ruled that software is a "language," and therefore warrants the same constitutional protection as books or other forms of speech. Patel's ruling is being appealed by the Justice Department, so her injunction has not taken effect yet. The Ninth Circuit Court of Appeals is expected to issue a decision soon.

That case was filed by University of Illinois math professor Daniel Bernstein, who wanted to post online the code of an encryption program he wrote.

Gwin addressed the Bernstein decision in his ruling.

"The court in Bernstein misunderstood the significance of source code's functionality," he stated. "Source code is 'purely functional' in a way that the Bernstein court's examples of instructions, manuals, and recipes are not. Unlike instructions, a manual, or a recipe, source code actually performs the function it describes."

The appeals in both the Bernstein and Junger cases could bring the ongoing crypto debate to a head. A split in the appeals rulings could push the debate into the Supreme Court, observers say.

 

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