March 5, 1999 Web posted at: 9:00 a.m. EST (1400 GMT) by Rebecca Sykes

From...

(IDG) -- An Ohio professor and the American Civil Liberties Union (ACLU) have appealed a federal decision that software code does not have the same constitutional protections as speech.

Last July, the U.S. District Court for the Northern District of Ohio ruled that Peter Junger, a professor at Case Western Reserve University, in Cleveland, could not post encryption software on his Web site without a review from the U.S. Department of Commerce. Junger wanted to post the information for students in his computers and law course, but the U.S. restricts how encryption code can be made available.

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Junger maintained that the encryption code was speech and was therefore protected under the First Amendment, but the July ruling found that encryption code was not protected speech. On Monday, the ACLU filed a brief with the Sixth Circuit Court of Appeals to challenge that ruling.

The appeal will focus on two points made by Judge James Gwin, the district court judge who delivered the July ruling, according to Raymond Vasvari, legal director for the ACLU of Ohio.

Judge Gwin likened source code, or software code, to a device, like embedded circuitry in a telephone, which actually does the encryption, according to Vasvari.

"I think that misses one of the great points about software code," Vasvari said. "Only source code has the necessary precision [required by] these professionals."

Software code is the language of choice for computer scientists, and as their preferred linguistic medium of exchange it should be afforded constitutional free-speech protections, Vasvari said.

Judge Gwin also maintained that while source code may play a part in "the exposition of ideas" -- a key factor in determining whether something can be considered speech and be protected -- it does so only for a very few people, according to Vasvari. But the implication that many people must use a language in order for it to be protected is simply wrong, he said.

"There's never been a constitutional recognition that a language needs to be accepted by a significantly large majority in order to be constitutionally protected," Vasvari said. "Indeed it's just the opposite ... The court has rejected the notion that a language must be widely understood to be widely protected."

The case will be decided before a three-judge panel, probably in August or September, Vasvari said. If the ruling is not in the professor's and the ACLU's favor, the national ACLU will decide whether to request consideration at the next -- and final -- level, which is the U.S. Supreme Court.

Professor Junger was confident in the strength of his case.

"I have been very optimistic for a long time, because of the way we lost in the .... district court," Junger said. "Gwin framed the issues in a way that made the case very straightforward and [he] made two mistakes that it's easy to show."

Rebecca Sykes (rebecca_sykes@idg.com) is a Boston correspondent for the IDG News Service, an InfoWorld affiliate.