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 balls. ------- Forwarded Message 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 By LAURIE J. FLYNN 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 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. 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