Professor in encryption lawsuit promises to fight ruling

Friday, July 10, 1998

Peter Junger, an Ohio law professor suing the government over his right to post encryption on his Internet site, raised a few thousand dollars and leaned on the charity of his lawyers to mount a losing case in court.

Although a federal judge ruled that encrypted software programs are merely devices and not speech, Junger said the First Amendment is too important to let inadequate funding keep him from filing an appeal.

“We have had almost no financial support for this case,” Junger said. “But the issue of whether encryption software and software in general is protected like other writings under the First Amendment … is so important that we will have to scrape up the resources somehow to bring an appeal.”

His first-round loss may bolster his case, Junger says.

“Now that it has finally become clear to people that our case, my case, is not so much about encryption but about software writing entitled to First Amendment protection, they are becoming interested,” he said.

Last week, a U.S. district judge in Ohio ruled in Daley v. Junger that the government doesn't violate free-speech rights by requiring licenses to export software programs that provide Internet confidentiality. Judge James Gwin said encryption isn't a form of speech but is simply a tool for scrambling information.

Current federal law prohibits the posting of strong encryption on the Internet without a license, saying it violates export codes. Gwin determined that the law doesn't infringe on the First Amendment rights of computer programmers like Junger.

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

Encryption experts contend that writing computer programming is comparable to writing a book, a recipe or a manual. Junger and others say the creation of encryption is an expressive task.

They say 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.

In Junger's case, the professor wanted to post encryption programs–including a few he himself wrote–to illustrate to his students how the law should be applied to computing.

A federal judge in California handling Bernstein v U.S. Department of Commerce, a case similar to Daley v. Junger agreed. Judge Marilyn Patel said computer language equals protected speech.

Gwin rejected the same argument, saying: “Speech is not protected simply because we write it in a language.”

“Unlike instructions, a manual, or a recipe, source code actually performs the function it describes,” he wrote. “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.”

Barry Steinhardt, director of the Electronic Frontier Foundation, said he was “a little surprised that Gwin bought into the government argument.”

“It's plainly disappointing,” Steinhardt said. “I think the judge doesn't understand how encryption works and doesn't understand the relationship of software to hardware. He seems to be treating a form of expression as if it were just a mechanical tool.”

Junger said he wasn't taken aback by the decision, saying he knows enough about the court system to know he should never be surprised. He said he was pleased that the case had a judge who wasn't afraid to face the issues.

“It's not surprising that a federal judge, who heard relatively short arguments and did not have a hearing of experts, came out with this rather naïve view that a program — I would say a writing — is a device,” Junger said.

And even though he described Gwin as naïve in terms of how the First Amendment relates to computer programming, Junger said the judge explored all of the key issues.

“Even though we lost the case, the judge did a good job of spelling the issues out,” Junger said. “It will make it easy for our appeal.”