Judge Upholds Crypto Restrictions

Welcome Guest. | Log In| Register | Membership Benefits

July 06, 1998 (4:14 PM EDT)

By John Borland,

An Ohio federal judge ruled late last week that U.S. government restrictions on exporting encryption software were legal, saying data-scrambling source code was not entitled to strong free-speech protections.

Federal Judge James Gwin dismissed a lawsuit brought by Case Western Reserve University law professor Peter Junger, saying encryption software was not "expressive" enough to be entitled to strong First Amendment protections.

"Encryption source code is inherently functional," Gwin wrote Thursday, granting the government's request to dismiss the case before it reached trial. "The export regulations are not directed at source code's expressive elements, and ... do not reach academic discussions of software."

Gwin's decision allows the government to maintain its controversial ban on exporting strong data-scrambling software, a rule that also bars the publication of source code online.

Under Commerce Department regulations, most companies or individuals who want to post code online or export software packages must seek a license from federal regulators. The Clinton Administration does not allow companies to export unbreakable encryption, citing law-enforcement concerns that the software will shield the communications of criminals and terrorists.

Free-speech advocates and high-tech businesses threatened by foreign competition have long chafed under the export restrictions, and have sought to overturn them both in courts and in Congress.

Junger sued the government almost two years ago, after being barred from publishing encryption source code on his website as reference materials for a class. The law professor argued the source code was a language in which academics and software developers communicated with each other, and preventing him from posting it online was unconstitutional censorship.

Government attorneys said the source code was a functioning piece of computer equipment instead of speech. Software was no more entitled to free-speech protections than the engine of a car, the attorneys said in their briefs. Gwin's ruling, which upheld the government's arguments, complicates the legal status of encryption source code online.

Last December, federal judge Marilyn Patel ruled software code is entitled to First Amendment protections, which would make the U.S. export rules illegal. That case, brought by University of Illinois at Chicago professor Daniel Bernstein, is being reviewed by the 9th U.S. Circuit Court of Appeals.

Gwin explicitly challenged this earlier decision. "[Patel's] assertion that 'language equals protected speech' is unsound," Gwin wrote. A piece of writing -- or source code -- must express ideas to be protected, while encryption software simply performs a function, he said.

"Gwin says it's not protected by the first Amendment. Patel says it is," Junger said. "You get two clearly conflicting cases." The mixed signals could convince the Supreme Court to take on the issue more quickly, he said.

Junger said much still depends on the appeals court ruling in Bernstein's case. Judges have been reviewing Patel's decision since late December, and a decision is expected at any time. The government export rules have been allowed to stay in place while that decision is being made.

Meanwhile, legislative efforts to overturn the Commerce Department export restrictions may be gaining new momentum. House Speaker Newt Gingrich said last week that he would personally chair a task force this month aimed at brokering a compromise between high-tech business and law-enforcement representatives.

Gingrich said he hoped to pass a bill loosening the export ban by the end of the year, but that it would be a difficult deadline to meet.