5 May 1998

To: cypherpunks@cyberpass.net
Subject: bernstein/junger cases
Date: Mon, 04 May 98 20:08:51 -0700
From: "Vladimir Z. Nuri" <vznuri@netcom.com>

judicial hacking-- a powerful tool for american freedom,
presuming we have some left
major thanks to bernstein/junger who definitely have a lot of 

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From: wtberry@sprintmail.com

To: ignition-point@majordomo.pobox.com
Date: Sat, 2 May 1998 21:39:36 -0700
Subject: IP: Encryption Cases Cast Shadow on Academia

The New York Times
May 3, 1998

2 Encryption Cases Cast Shadow on Academia


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 posted 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

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

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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