Law professor appeals encryption ruling

Tuesday, March 9, 1999

Bolstered with funds from the American Civil Liberties Union, an Ohio law professor is appealing a federal court decision that found software code didn't merit the same constitutional protection as speech.

Peter Junger of Case Western Reserve University in Cleveland contends in his appeal filed last week that encryption is First Amendment-protected speech. The professor had wanted to post encryption programs — including a few he had written — to illustrate to his students how the law should be applied to computing. Currently, federal export laws restrict the ways in which encryption may be made available.

Last summer, a federal judge in Ohio ruled in Daley v. Junger that the government didn't violate free-speech rights by requiring licenses for the export of encryption. Judge James Gwin said encryption wasn't a form of speech but was simply a tool for scrambling information.

Current federal law prohibits the posting of strong encryption on the Internet without a license, saying that to do so violates export codes. According to Gwin, such laws don't violate the First Amendment rights of computer programmers.

“Among computer software programs, encryption software is especially functional rather than expressive,” Gwin wrote in his decision.

In his lawsuit, Junger compared the writing of computer programs to the writing of a book, a recipe or a manual. He and other encryption experts contend that federal export laws concerning encryption violate free speech by creating a prior restraint on computer programmers and others who wish to exchange programs or encryption over the Internet.

But “speech is not protected simply because we write it in a language,” Gwin wrote in last summer's decision.

“Computer scientists need these languages to communicate complex ideas with precision,” said Raymond Vasvari, one of Junger's attorneys and the new legal director for the Ohio ACLU. “They should not need government permission to share those ideas with colleagues via the Internet.”

Since filing his lawsuit in September 1997, Junger has had to reach into his own pockets to pay for his challenge of the restrictions. But since the ACLU has joined him, he says he feels better about facing a possibly protracted court case.

“Now that the case is in their hands, I'm feeling much more comfortable about issues of support,” Junger said, noting that until now “it was mostly just me scrounging around to get a little money and pay the expenses.”

However, Junger expects the encryption issue to be resolved before his case comes up on the court docket.

Recently, Reps. Bob Goodlatte, R-Va., and Zoe Lofgren, D-Calif., introduced the Security and Freedom through Encryption — or SAFE — Act that would make it lawful to use and sell strong encryption here and abroad. The bill, HB 850, is before the House Subcommittee on Courts and Intellectual Property.

In the meantime, Junger is picking up support from organizations ranging from the Electronic Privacy Information Center to the Eagle Forum. In a joint friend-of-the-court brief, a dozen organizations urged the appeals court to afford encryption full First Amendment protection because they say that, at the very least, it's expressive conduct.

“Even conduct that is not ordinarily or inherently expressive may be protected under the First Amendment when it is intended to convey a message and is likely to be understood,” the brief says. “Source code text, however, is more than mere conduct — it is a written high-level language that is inherently expressive.”