A professor says he will challenge a court finding that computer programs are not protected by the United States Constitution. Judge Gwin of the Ohio Sixth Circuit of the US District Court dismissed a suit that challenged the ban on publishing encryption algorithms on the internet. Judge Gwin’s grounds were that such algorithms are inherently functional – unlike, say, legal writings, which are protected by the First Amendment. The suit was brought by Peter Junger, a professor of law at Case Western Reserve University in Cleveland. Junger says he published the encryption algorithms because there is no other way to teach lawyers and the public how computers work and how the law should be applied to them. But the government says that anyone publishing such algorithms outside the USA must have a Commerce Department license, which Junger does not have. Judge Gwin sided with the government, saying that the export regulations are not directed at the source code’s expressive elements and do not reach academic discussions of software, or software in print form. The issue is so important that I do have to appeal, Junger says. His main problem is finding the funds to do so. Offers of financial support are already trickling in, mostly from programmers who have suddenly been alerted to a serious threat to their work. Gwin made it very clear what the issue is, and that is whether programmers’ work is protected by the first amendment, Junger explains, in a way I’m glad we lost. Had they won, he said, the government would have applied for a stay. That would have ruined my lawyers’ Fourth of July weekend, says Junger, it might even have spoiled mine. Gwin’s ruling directly contradicts a ruling by Judge Patel of the California Ninth Circuit in the case of Daniel Bernstein, a math professor at the University of Illinois. In August last year Judge Patel ruled that software is in fact protected under the First Amendment. Bernstein’s case is up on appeal but the pro- First Amendment Ninth circuit is likely to decide in favor of Bernstein, Junger says. In that case the government will probably appeal again, this time to the Supreme Court. It might not be my case. It might not even be Bernstein’s case, but in the end this will have to be decided by the Supreme Court, says Junger, adding: I would be very surprised if the Supreme Court decided the case the same way Judge Gwin did. The Court is split between moderates and conservatives, but Junger observes that this split does not manifest itself on First Amendment issues. Indeed, given the Court’s ruling on the Communications Decency Act, in which it upheld the First Amendment for materials published on the internet including pornography and bomb recipes, it’s hard to imagine how the cryptography issue could be decided any other way. Cryptography differs from other software only in that the government has defined it as an armament. Does that claim make any sense? asks Junger, pointing out that the algorithms he published on his web site were either trivial or publicly available elsewhere. The national security issue is just spurious, he concludes. The NSA and the CIA have given up on crypto. The only people still concerned about it are the FBI and the local police. There’s nothing they can find that in any way limits the use of cryptography within the United States. Accordingly, they have latched onto the export regulations as their last, best hope for keeping encryption out of criminal hands. Junger says he is pursuing the case on conscientious grounds. As somebody who wants to get his word out to the public, it offends me to have to censor material on my web site, he says. It’s indignation that moves me in part. When people who write software are no more entitled to protection under the First Amendment than people who write things that are legally obscene, I find that to be obscene in itself.
