Third encryption case goes to court

Friday, April 24, 1998

A federal court judge in Akron, Ohio, is to hear arguments today in Junger v. Daley, a key encryption-software case observers say could determine how much First Amendment protection computer programmers enjoy when they send their work over the Internet.

Peter Junger, a professor at the Case Western School of Law in Cleveland, filed his lawsuit against the government last September after federal regulations prohibited him from teaching his “Computers and the Law” class online. The lawsuit names U.S. Commerce Secretary William Daley as the key defendant.

In his lawsuit, Junger claims he needs to post encryption products on his web site to demonstrate the concept of encryption to his students.

Encryption programs use mathematical formulas to permit computers to scramble data so it can't be read without a numerical access key. Federal law prohibits posting of strong encryption on the Internet without a license because it violates export codes. Government officials contend they need to control encryption to prevent its illegal use.

But free-speech experts contend that such laws create a prior restraint against computer programmers and others who wish to exchange programs or encryption over the Internet.
They say programs are a form of speech that should enjoy First Amendment protection.

Junger marks the third encryption case to reach the courts in the past year. David Banisar of the Electronic Privacy Information Center said Junger's case works “in tandem” with two other key encryption cases.

Last year, a federal judge in the Northern District of 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 sought to distribute his work in encryption.

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

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

“These cases are trying to push forward and prevent the ability of the U.S. government to prevent us from speaking freely,” Banisar said. “[Such restrictions] hamper computer programmers' ability to put communications on their Web pages because it's considered an export and could be subject to violating export controls.”

In a statement sent to the First Amendment Center, Junger agrees that his case and others have far-reaching implications. If government can prohibit encryption, he says, it can make a case for blocking other computer programs.

“At this time of year, for example, I find it easy to believe that the government would like to forbid the publication of tax-preparation software that the tax collectors feel are too good at detecting loopholes,” he said.

Junger noted that both he and the government have filed for summary judgment in the case, raising expectations that Judge Scott Gwin will decide the case soon after today's hearing. If the judge does not resolve the case, a July 20 trial date has been set.

“I am confident that the case can be decided without a trial,” Junger said. “The dispute is not about the facts. The only real issue is whether and to what extent the Constitution protects the writing and publication of computer programs. And a trial is not going to be necessary to settle that issue.”