Last July, Peter Junger of Case Western Reserve University lost his First Amendment challenge to federal regulations that require a license to export the data-scrambling technology. Junger's lawyers say the rule violates his right to free expression because he would need prior review from the Commerce Department before publishing certain programming languages on the Net.
The U.S. District Court for the Northern District of Ohio disagreed and ruled that encryption software code doesn't warrant the same constitutional protection as other speech.
Now Junger, backed by the American Civil Liberties Union of Ohio, is challenging the ruling. The ACLU filed a brief with the Sixth Circuit Court of Appeals yesterday.
"Computer scientists need these languages to communicate complex ideas with precision," Raymond Vasvari, one of Junger's attorneys, said in a statement. "They should not need government permission to share those ideas with colleagues via the Internet."
ACLU lawyers argue that programming languages are protected speech, and at least one federal judge agrees.
In a landmark ruling in August 1997, U.S. District judge Marilyn Hall Patel called software a "language" that held the same constitutional protection as books or other forms of public speech. The case was filed by University of Illinois math professor Daniel Bernstein, who wanted to post online an encryption program he wrote. The Justice Department has appealed that case.
In Junger's case, Judge James Gwin disagreed with Patel's opinion and ruled that encryption code was not protected speech. "Source code is 'purely functional' in a way that the Bernstein court's examples of instructions, manuals, and recipes are not," he stated. "While a recipe provides instructions to a cook, source code is a device, like embedded circuitry in a telephone, that actually does the function of encryption."
The government has until next month to file a reply to Junger's appeal.
Junger first waged his court fight in 1996 to ensure his right to teach foreign and local students about data security technology by posting material on his Web site.
The outcome of the Bernstein and Junger cases--along with cryptographer Philip Karn's case, which has been kicked back down to the district court in Washington--could decide an ongoing conflict over the limits on encryption exports.
The software industry has been trying to convince Congress and the Clinton administration to throw out the rules, which they say prevent U.S. firms from competing with foreign manufacturers that can ship stronger products without restrictions. Privacy advocates also argue that global computer users have a right to use the toughest cryptography to secure their communication.