7 July 1998: Add AP story

6 July 1996

See related case files: http://jya.com/pdj.htm

And Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/

Date: 7 Jul 1998 00:45:56 -0000
From: Julian Assange <proff@iq.org>
To: aucrypto@suburbia.net
Subject: AUCRYPTO: Professor Junger looses ohio crypto case.

Professor loses crypto case
By Courtney Macavinta                                                                                                                                                      
Staff Writer, CNET NEWS.COM                                                                                
July 6, 1998, 2:50 p.m. PT                                                                     

An Ohio professor does not have a First Amendment right to post
encryption code on his course Web site, a federal court has ruled.
Flying in the face of another federal ruling now being appealed by the
government in California, the U.S. District Court for the Northern
District of Ohio ruled on Friday that encryption software code doesn't
warrant the same constitutional protection as other speech.

"The court finds that exporting source code is conduct that can
occasionally have communicative elements. Nevertheless, merely because
conduct is occasionally expressive does not necessarily extend First
Amendment protection to it," the decision states.

In the closely watched case, Case Western Reserve University law
professor Peter Junger challenged federal restrictions on strong
encryption. The technology requires an export license because it is
considered a potential weapon under the law. Junger waged the court
fight in 1996 to ensure his right to teach foreign and local students
about the data security technology by posting material on his Web

Although books containing encryption code can be shipped overseas
without a license, Web sites containing the code are not protected to
the same extent by the First Amendment, the Ohio Court ruled.

Ohio federal Judge James Gwin's opinion conflicts with a landmark
ruling in San Francisco last August, in which federal Judge Marilyn
Hall Patel called software a "language" that held the same
constitutional protection as books or other forms of public
speech. Patel said the government's rules were unconstitutional.

The California case was filed by University of Illinois math professor
Daniel Bernstein, who wanted to post online the code of an encryption
program he wrote. Patel's injunction hasn't gone into effect yet
because the Justice Department appealed the ruling. A decision is
expected soon by the Ninth Circuit Court of Appeals.

The court in Ohio disputed the Bernstein ruling.

"The court in Bernstein misunderstood the significance of source
code's functionality," Gwin ruled.

"Source code is 'purely functional' in a way that the Bernstein
court's examples of instructions, manuals, and recipes are not," he
continued. "Unlike instructions, a manual, or a recipe, source code
actually performs the function it describes. 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

Junger has not announced whether he will appeal the decision.

The outcome of the Bernstein and Junger cases--along with
cryptographer Philip Karn's case, which has been kicked back down to
the district court in Washington--could decide an ongoing conflict
over the limits on encryption exports.

The software industry has been trying to move Congress and the
president to throw out the rules, which they say are bureaucratic and
prohibit them from competing with foreign manufacturers that can ship
stronger products without restrictions.

But a change in policy has been slow going, and the courts aren't
moving much faster.

A jurisdictional change is holding the case filed in September 1995 by
Karn, who was denied permission to export a computer disk containing
the source code in the book Applied Cryptography.

But with a likely appeal in Junger's case and the anticipated court of
appeals ruling in Bernstein's case, the encryption debate is hedging
its way toward the Supreme Court, legal experts say.

"If this issue is going to go the court of appeals in Junger's case,
there is a decent chance there would be a spilt in the circuit's
decisions, and it could go to the Supreme Court," said Stewart Baker,
the former general counsel at the National Security Agency and a
partner at the law firm Steptoe & Johnson.

Those who believe academia has a right to post encryption code online
say the government's licensing policy is stifling academic freedom and
free speech. The district court's decision in Bernstein's case is the
ruling free speech advocates would want upheld by the high court.

"I'm disappointed in the [Ohio ruling]. I don't think it was the right
decision," Cindy Cohn, an attorney in the Bernstein case, said
today. "I think the court didn't consider sufficiently that this is a
discretionary licensing scheme."

Barry Steinhardt, president of the Electronic Frontier Foundation,
which is supporting both professors in their court fights, agreed that
the conflict between the district courts could help the bigger fight
to overturn the export restrictions.

"The district court in Ohio found that software is not protected
speech," he said today. "If the [Ohio ruling] would become the law of
the land, we'd have no First Amendment protection for a wide range of
expression in the digital age.

"If we win in the Ninth Circuit and Patel's order goes into effect, it
would have immediate impact because that is where the greatest
concentration of high-tech businesses and professionals are,"
Steinhardt added.

But former NSA attorney Baker predicts the high court would likely
hand down a ruling that upholds the government's export limits.

"This is a conservative court. They're inclined to defer to the
government on national security issues," he said.

"The court is reluctant to speak broadly in an area that would be
cutting back the government's authority," he added. "It requires more
enthusiasm for second-guessing the government than I think most judges

Date: Tue, 7 Jul 1998 02:53:40 -0700 (PDT) Subject: Encryption Case Ruling Favors Gov't To: jy@jya.com From: nobody@shinobi.alias.net (Anonymous) Associated Press, 06 July 1998, 8:05 p.m. EDT Encryption Case Ruling Favors Gov't By The Associated Press CLEVELAND (AP) -- A federal judge has ruled the government is not violating the First Amendment by requiring licenses to export programs that scramble electronic messages. The decision from U.S. District Judge James S. Gwin provides a new twist in the debate concerning use of security measures to protect information sent between computers. The high-tech industry wants the government to relax restrictions on exporting encryption programs that make electronic eavesdropping virtually impossible. Law enforcement officials, including the Justice Department, are worried criminals will use the technology to send communications that police can't decode. The ability to scramble e-mail messages is becoming more important as consumers send messages and shop on the Internet. Gwin's decision favors restrictions on encryption software and says encryption is not a form of speech but simply does a job -- scrambling information. "Among computer software programs, encryption software is especially functional rather than expressive," Gwin wrote. The ruling is dated Thursday but attorneys received copies of it Monday. It is a blow to a Case Western Reserve University professor's effort to have the rules struck down as a violation of the right to free speech. Peter Junger, a law professor at the Cleveland school, said Monday he will appeal. Junger, who teaches a computer law class, first sued the government concerning the regulations in 1996. He was frustrated with not being able to post an encryption program on his Internet site as part of students' computer course materials. That would have been exporting the program, since the Internet is available worldwide. Junger said the government's licensing requirement is silly because people in other countries already post encryption programs and he could distribute the same information in a book. Anthony Coppolino, the government's lead attorney in the case, said he hadn't seen the decision and declined comment. Junger said the ruling didn't upset him. "Whichever way the case came, down there would have been an appeal," he said. "The difference is we are doing the appealing." Copyright 1998 The Associated Press.