Encryption & First Amendment

[Steve Hoffman]

2 Encryption Cases Cast Shadow on Academia

Laurie J. Flynn 
NY Times 5/3/98


Daniel Bernstein, a math professor at the University of Illinois at
Chicago, routinely makes his course materials available for students
and researchers, both within and outside of the university. Likewise,
Peter Junger, law professor at Case Western Reserve University in
Cleveland, widely distributes the coursework to his popular class
Computers and the Law. But while one may teach math and the other
law, the two share something in common: both are prevented from
posting their course materials on the Internet. 

The reason? Profs. Bernstein and Junger's coursework includes
encryption software, computer code whose export is regulated by the
United States Department of Commerce. As a result, they share
something else: Both men are awaiting decisions in separate lawsuits
claiming that the government is violating their right to free speech
under the First Amendment. 

Separate rulings are expected any day in both cases. The outcome,
legal experts say, could have broad-reaching effects on the future of
electronic commerce as well as academic freedom.

The cases have been watched closely by legal experts and government
agencies, as well as computer industry executives who have been
lobbying furiously for the federal government to remove all
restrictions on exporting software. (A third lawsuit involving
encryption software, Karn v. the U.S. Department of State, was
expected to have broad implications as well, but that case is stalled
in the courts.) 

Just last week, the United States District Court of Eastern Ohio
heard oral arguments in the Junger case, which Junger originally
filed back in 1996 when he was told he would need an export license
before he could post his Computers and the Law class on the Web. At
last week's hearing, Junger's lawyer, Raymond Vasvari, argued, as
Bernstein's lawyers before him, that encryption software is protected
speech. The government countered that encryption is not a form of
speech, but rather a function of the software. A lawyer torney for
the Justice Department said all the government is trying to do is
regulate the function.

But after the hearing, Junger said he felt if the government were to
prevail it could apply the same logic to preventing other types of
material from being published electronically. 

"If the government can constitutionally require me to get a license,
which I probably can't get, before I publish encryption software, they
could require me to get a license before I publish any sort of
software," Junger said.

Vasvari also contends that the Commerce Department's process for
granting licenses appears flawed and muddled. Government officials, he
said, use "standardless discretion" in deciding the fate of
applications. "We don't know who decides or what criteria they use,"
he said. 

But the case has even broader implications than free speech law. The
issue of encryption regulation has been debated for years. Government
and law enforcement officials have long argued that encryption
software must be regulated to prevent it from falling into the wrong
hands: high-tech criminals and foreign governments who could use it
to cover their tracks. 

Computer industry officials and free-speech advocates, on the other
hand, say the restrictions damage the U.S. software industry and that
the export restrictions on U.S.-made encryption software is leading
to the export of programming jobs to countries without such
regulations. They also argue that encryption is already widely
available around the world.

Working for Junger is a 1996 ruling in the Bernstein case. In that
case, Judge Marilyn H. Patel ruled nearly two years ago that software
was, in essence, speech, and that the government's restrictions on
Bernstein amounted to an illegal prior restraint on speech and
therefore a violation of the First Amendment.

But the government appealed, leaving Bernstein still unable to
publish his ideas electronically while an appeals court decides the
fate of the case. Last December, a three-judge panel of the Ninth
U.S. Circuit Court of Appeals heard the appeal and is currently
considering Patel's 1996 decision.

Bernstein's suit dates back to February 1995, when he was a graduate
student at the University of California at Berkeley. At the time,
State Department officials told him he would have to submit his ideas
about cryptography to the government for review, get a government
license and register as an arms dealer before he could publish an
electronic version of a short encryption program he had written
called Snuffle. Without such a license he could not even discuss his
ideas at conferences, which foreigners might attend, or publish them
on the Internet, where they could be viewed overseas. 

That was until last year, when the Clinton administration shifted
encryption regulation from the State Department to the Commerce
Department. With that shift, software that scrambles communications
is no longer classified as a weapon, though it is still subject to
export rules. Under current regulations, it is legal to send computer
source code overseas in printed form but not electronically.

In its appeal, the government argued that it was trying to preserve
the ability of intelligence agencies to eavesdrop on foreign
governments and citizens. In preventing Bernstein from publishing
Snuffle electronically, government lawyers argued that what was being
restricted was not speech but the medium of the Internet, which makes
it easy for foreigners to use Bernstein's source code to encrypt
data.

It's now been nearly five months since a panel of three judges heard
the government's appeal, and nobody is watching more intently than
Federal District Judge James S. Gwin, the presiding judge in the
Junger case. 

But even when the two cases are decided, it won't likely be the end
of either one. Any decision in Bernstein is almost certain to result
in an appeal to the U.S. Supreme Court, legal experts say. In Junger,
the case is likely to be sent to an appeals court.

Copyright 1998 The New York Times Company
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