Encryption Lawsuit Back On 'Fast Track'

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March 30, 1998 (12:00 AM EST)

By John Borland,

A lawsuit challenging the U.S. government's restrictions on exporting encryption software moved into high gear Friday, and a decision could come as early as next month.

"We're back on a fast track," said Peter Junger, a Case Western Reserve University professor, who has sought for more than 18 months to post encryption information on his website as reference material for his students. After more than a year of preparation in the case, a new judge last week scheduled what will likely be a final hearing for April 24.

"There's a lot riding on that hearing," Junger said.

Current U.S law tightly regulates the export of software or source code that can scramble data to make it unreadable. Commerce Department regulations forbid the export of "strong," or unbreakable, encryption programs in any electronic form, including posting the information to a website.

While privacy and free-speech advocates and high-tech companies have lobbied to have these regulations overturned by Congress, Junger and several other individuals have sued to have them declared unconstitutional by the courts.

Junger says he's not focusing on any particular piece of software, though his case does cite several specific pieces of encryption code that the government has barred him from posting. "The basic argument is about to what extent -- if any -- encryption software and other software is entitled to the protection of the First Amendment," Junger said.

"The basic argument is about to what extent -- if any -- encryption software and other software is entitled to the protection of the First Amendment."
-- Peter Junger
Case Western Reserve University

Government attorneys say encryption software is a "functional" piece of programming, and that the source code is no more entitled to free speech protection than is a car engine. "Much software ... is designed to cause substantial harm," federal attorneys added in their most recent brief. "In the case of powerful encryption, there are valid uses of hardware and software in securing communications ... But encryption can also secure the communications of criminals, terrorists, and other hostile entities overseas, which gives rise to the government's concern over its uncontrolled export."

Federal district judge James Gwin is scheduled to make a decision shortly after the April hearing unless he asks for more extensive trial proceedings, which are unusual in this type of case, Junger said. But the losing side will almost certainly appeal, leaving the export restrictions in place even if the government loses this round.

Junger's case trails another lawsuit filed by University of Illinois at Chicago professor Daniel Bernstein, which is now being decided by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in California. Like Junger, Bernstein contends that publishing the source code for cryptography programs on the Internet is protected by constitutional free speech rights. The appeals panel is deciding whether to uphold an August district judge's ruling that Bernstein's software is covered by First Amendment protections.

But the stakes in the court battles are much larger than the individual professors' ability to post their class materials on the Web. American companies like Pretty Good Privacy (now part of Network Associates) and RSA Data Security, and even Netscape and Microsoft, have lobbied Congress and the administration to let them export the same unbreakable encryption programs they sell or license in the United States. Their efforts have so far been unsuccessful.

The battle between free-speech advocates and Silicon Valley representatives on one hand, and federal law enforcement forces on the other side, has so far stalled congressional efforts to liberalize the country's encryption export policies.