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Professor to Appeal Landmark Encryption Ruling

Law professor challenges district court decision ruling that encryption source code cannot be protected as free speech.

By Torsten Busse, PCWorld   

Although the ruling handed down last Friday favors the U.S. government's controversial limits on export of encryption software, the opinion is in complete contradiction to another ruling in a very similar case that's currently being appealed, which Junger said should help his legal team define a strategy as the case proceeds.

"Of course I disagree with the court's opinion, but it is a very clear, well-written opinion that structures the case nicely for us and eliminates some aspects of confusion," Junger told IDG News Service Thursday. "Ultimately, though, the court made a glaring mistake when it held that software is some sort of device."

Judge James Gwin of the U.S. District Court for the Northern District of Ohio on Friday ruled that existing export restrictions do not violate Junger's constitutional right to free speech--commonly referred to in the U.S. as First Amendment rights. He contended that computer programs are not writing, but "inherently functional" devices.

Junger, a law professor at Case Western Reserve University in Cleveland, Ohio, brought the case against the U.S. Department of Commerce last year to enjoin the enforcement of export regulations on encryption software, which prevent him from publishing his class materials and articles on the Internet for a course on computing and the law, because they contain some encryption programs.

Junger says encryption programs are writing and thus entitled to full First Amendment protection.

However, Judge Gwin disagreed.

"Among computer software programs, encryption software is especially functional rather than expressive," Gwin wrote in the 32-page ruling. "Like much computer software, encryption source code is inherently functional; it is designed to enable a computer to do a designated task. Encryption source code does not merely explain a cryptographic theory or describe how the software functions. More than describing encryption, the software carries out the function of encryption...In doing this function, the encryption software is indistinguishable from dedicated computer hardware that does encryption."

Junger and some of his supporters, including the Electronic Frontier Foundation, said Gwin erred in arguing that software is indistinguishable from hardware.

"Judge Gwin looked carefully at the Bernstein case and rejected the idea that software is a form of speech protected by the First Amendment because he considers software and hardware as something operational," said Shari Steele, an attorney for the EFF.

Gwin's ruling rejected an opinion handed down in San Francisco last year by Judge Marilyn Patel of the Federal District Court, when she ruled in Bernstein vs. the Department of State that the encryption regulations of the U.S. government violate the First Amendment. The U.S. government is currently appealing that ruling, and a decision by the Ninth Circuit of Appeals is expected anytime.