Professor to appeal landmark encryption export ruling
(IDG) -- Law professor Peter Junger said Wednesday that he will appeal a court ruling in favor of the U.S. government that rejected his argument that trade laws limiting the export of encryption software violate his constitutional right to freedom of speech.
Although the ruling handed down last Friday favors the U.S. government's controversial limits on export of encryption software, the opinion is in complete contradiction to another ruling in a very similar case currently being appealed, which Junger said should help his legal team to define the legal strategy as the case proceeds.
"Of course I disagree with the court's opinion, but it is a very clear, well-written opinion that structures the case nicely for us and eliminates some aspects of confusion," Junger told IDG editors Wednesday. "Ultimately, though, the court made a glaring mistake when it held that software is some sort of device."
Judge James Gwin of the U.S. District Court for the Northern District of Ohio on Friday ruled that existing export restrictions do not violate Junger's First Amendment right to free speech contending that computer programs are not writing but devices that are "inherently functional.''
Junger, a law professor at Case Western Reserve University in Cleveland, brought the case against the U.S. Department of Commerce last year to enjoin the enforcement of export regulations on encryption software, which prevent him from publishing his class materials and articles for a course on Computing and the Law on the Internet because they contain some encryption programs.
Junger says encryption programs are writing and thus entitled to the full protection of the First Amendment.
However, Gwin disagreed.
"Among computer software programs, encryption software is especially functional rather than expressive," Gwin wrote in the 32-page ruling. "Like much computer software, encryption source code is inherently functional; it is designed to enable a computer to do a designated task. Encryption source code does not merely explain a cryptographic theory or describe how the software functions. More than describing encryption, the software carries out the function of encryption... In doing this function, the encryption software is indistinguishable from dedicated computer hardware that does encryption."
Junger and some of his supporters, including the Electronic Frontier Foundation (EFF), said Gwin erred in arguing that software is indistinguishable from hardware.
"Judge Gwin looked carefully at the Bernstein case and rejected the idea that software is a form of speech protected by the First Amendment because he considers software and hardware as something operational," said Shari Steele, an attorney for the EFF.
Gwin's ruling rejected an opinion handed down by the Federal District Court Judge Marilyn Patel in San Francisco last year when she ruled in Bernstein vs. Department of State that the encryption regulations of the U.S. government violate the First Amendment. That ruling is currently being appealed by the U.S. government and a decision by the 9th Circuit of Appeals here is expected anytime.
"...[T]he court in Bernstein misunderstood the significance of source code's functionality," Gwin wrote. "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. 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."
In the Bernstein case, University of Illinois Professor Daniel Bernstein contends that software he wrote, just like text in books or newspapers, is a form of speech and thus protected under the First Amendment. Patel agreed with Bernstein, ruling that the encryption regulations violate the First Amendment, as the need to obtain an export license constitute a prior restraint on the freedom of speech.
Junger and Steele both pointed out Wednesday that ultimately the U.S. Supreme Court will decide the issue. The outcome partly depends on whether the government will be able to argue that code written in a book is different from the same code stored on a floppy disk, or on a Web site.
Current export regulations, which were initially part of the International Traffic in Arms Regulations (ITAR) administered by the Department of State and now contained in the Export Administration Regulations (EAR) administered by the Department of Commerce, currently permit the export of encryption software in books and other "hard copy," but still requires an export license before publishing the same software in any electronic form or media, including on the Internet.
"I don't see how there can be a distinction [between a book and a floppy] for constitutional purposes," Junger said.
While it is too early to tell how Junger's legal arguments will be structured when he appeals the case to the 6th Circuit Court of Appeals -- a court considered conservative by Junger and the EFF -- it will likely focus on the differences between the Gwin and Patel opinions, Junger said.
The Department of Commerce did not immediately return phone calls seeking comment.
IDG News Service Senior U.S. correspondent, Torsten Busse is based in San Francisco.
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