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March 3, 1999

PROFESSOR SAYS CRYPTO CODE IS PROTECTED FREE SPEECH

By CBR Staff Writer

By Rachel Chalmers

As promised, law professor Peter Junger has challenged a judge’s finding that encryption algorithms are not constitutionally protected free speech. In July last year Judge Gwin of the Ohio Sixth Circuit of the US District Court ruled that Junger did not have a First Amendment right to publish encryption algorithms on his web site. Junger says the web site is a key tool for the computers and law class he teaches at Case Western Reserve University in Cleveland, but at the time he lacked the funds to mount an immediate challenge. Besides, he and his lawyers had hoped that the case of Daniel Bernstein would have come to trial by now. Bernstein, a mathematics professor, won a 1997 suit very similar to the one Junger lost when Judge Patel of the California Ninth Circuit found that software is in fact constitutionally protected. The government has appealed that decision, but the eighteen month old Bernstein case appears to have stalled – perhaps because the Ninth Circuit is thought to be sympathetic to free speech issues. Now the onus is on Junger and his supporters to prove that software is protected speech. Fortunately for Junger, his lawyers recently became the legal directors of the American Civil Liberties Union (ACLU) of Ohio. The ACLU of Ohio has now filed a brief on Junger’s behalf. The consensus of the lawyers is that we should win the case, Junger says. He believes Judge Gwin, who made the original finding, made two mistakes. Gwin found that software is a form of expression, but that since not many people understand it, it is not protected free speech. That’s like saying your right to free speech is not protected it you speak Navajo, laughs Junger, the other big mistake he made was in mischaracterizing software as being a device like a telephone circuit, and therefore not expressive. It’s quite clear that computer scientists and even people like me use software to communicate with each other. It is now up to the government to file a brief of its own. Junger and his team have the option to reply to the government’s filing before the appeal goes to trial.

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