Encryption expert fights lonely battle

Friday, May 8, 1998

An Ohio professor who is suing the government says his battle is a lonely one because free-speech advocates ignore First Amendment issues surrounding computer codes.

“We don't get any support,” said Peter Junger, a professor at Cleveland's Case Western School of Law who filed his lawsuit last September after regulators prevented him from posting encryption code on his Web site. “But one person gave us $5,000.”

A federal judge in Akron, Ohio, heard opening arguments in Junger v. Daley last month. Both Junger and U.S. Commerce Secretary William Daley, the key defendant in the case, requested summary judgment and expect a ruling in the next few weeks.

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.

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.

“I'm not sure how many free-speech advocates are interested in the Internet or encryption,” Junger said. “I'm afraid most of the free-speech advocates fall into the category of those who think that a computer program is only something that comes on a disk or comes on a machine.”

Junger said that, while his case goes largely unnoticed, efforts to stifle the spawn of the Communications Decency Act of 1996 — a federal law forbidding “harmful to minors” material on the Internet — garners support from the American Civil Liberties Union and several Internet activist groups.

Junger said that the few people interested in protecting encryption only see its importance in protecting the privacy of e-mail delivery, computer documents and programs. The need to protect the expression and thought that go into preparing encryption are often overlooked, he said.

David Banisar of the Electronic Privacy Information Center disagrees that groups such as his are ignoring encryption as a First Amendment issue. He said Junger's case is one of three that are working in tandem to bolster the free-speech case for encryption.

Banisar noted that a federal judge in California last year 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 sought to distribute his encryption work.

The case is on appeal before the 9th Circuit Court of Appeals, and a decision is expected soon.

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 legally sent.

Even government officials, who claim they need to control encryption to prevent its illegal use, disagree among themselves about the extent to which they should control the strength and distribution of encryption.

FBI Director Louis Freeh recently told a Senate subcommittee that the widespread use of strong encryption hinders effective law enforcement.

“Uncrackable encryption is now and will continue, with ever-increasing regularity, to allow drug lords, terrorists and even violent gangs to communicate about their criminal intentions with impunity,” Freeh said.

On numerous occasions, Freeh has lobbied Congress to develop a key-recovery system, whereby the government can keep secret codes in escrow if it should need to crack into some criminal computer system at a later date.

Commerce Secretary Daley concedes that government efforts have been unbalanced, but he also maintains there is a need for control.

“The truth is that, while our policy goal — balance — is the right one, our implementation has been a failure,” Daley said in a report on encryption two weeks ago. “We have not been able to agree — amongst ourselves or with the business community — on how to reach that balance.”