Appeals court delays hearing in Junger case

Wednesday, November 18, 1998

An Ohio law professor, whose free-speech battle to post encryption on the Internet has moved sluggishly through the courts, learned Monday that the 6th U.S. Circuit Court of Appeals has delayed his hearing for 45 days to await a decision in a similar lawsuit.

Peter Junger, a law professor at Case Western Reserve University in Cleveland, sued the U.S. Department of Commerce last September after regulators prevented him from posting encryption code on his Web site.

Encryption programs permit computers to scramble data so they can't be read without a numerical access key. Current federal law prohibits the posting of strong encryption on the Internet without a license, saying it violates export codes.

But encryption experts contend that such laws violate free speech because they create a prior restraint against computer programmers and others who wish to exchange programs or encryption over the Internet. They also say that these federal export laws discourage programmers from developing even stronger encryption codes.

Government attorneys, however, contend that computer code is not covered by the First Amendment and, thus, is not protected speech.

Junger's case, Junger v. Daley, stands as one of three key encryption cases pending in U.S. courts.

Last year, a federal judge in California ruled in Bernstein v. U.S. Department of Justice that computer source code is a form of speech and thus protected under the First Amendment. The judge held that current export regulations violated the free-speech rights of Daniel Bernstein, who had sought to distribute his encryption work.

In December 1997, the 9th U.S. Circuit Court of Appeals heard oral arguments for a government appeal in the case. The court has yet to render a decision.

Another pending case, Karn v. U.S. State Department, involves a professor who was denied permission to send abroad a floppy disk containing encryption, even though a book containing the same information could be sent legally.

A federal judge in Washington, D.C., agreed in January to hear the Karn case after cryptographer Phil Karn took his case through administrative hearings in the U.S. State and Commerce departments.

In the Junger case, U.S. District Judge James Gwin last summer ruled against the professor, saying that because software is “inherently functional” it is not speech. Junger appealed to the 6th Circuit.

Junger said that the court officially notified him Monday that it had decided on Nov. 4 to suspend all action on his case “for 45 days pending a decision in Bernstein v. U.S. Department of Justice.”

If the 9th Circuit hasn't ruled by Dec. 21, the court said it would return Junger's case to active status and resume hearing the case.

“Which is just as well because this allows [friends of the court] and everybody more time to get the ducks in order,” Junger said. “It would be nice to do things more rapidly, but I think it would make everyone's life — mine and the government's — much easier if we have the decision in Bernstein.”

While he admits he isn't thrilled about the “slowness of it all,” Junger said a 6th Circuit decision counter to any in the Bernstein case might confuse the encryption issue. But Junger said he finds it puzzling why the court, which heard the Bernstein case nearly a year ago, is taking so long.

David Banisar of the Electronic Privacy Information Center agreed that the delay in Junger may prove to be a very positive move, particularly if the 6th Circuit is looking to the 9th Circuit for guidance. EPIC filed friend-of-the-court briefs in the Bernstein case urging the court to rule in Bernstein's favor.

“This may mean they are going to defer more to the 9th Circuit,” Banisar said. “There, considering rulings in the district court, we expect a reasonably favorable outcome.”