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Court: Programming languages covered by First Amendment

A federal appeals court clears the way for a law professor to post previously banned encryption software on the Internet.

A federal appeals court today cleared the way for a law professor to post previously banned encryption software on the Internet, finding that computer code qualifies as speech protected by the First Amendment.

The decision hands the U.S. government yet another defeat in its efforts to keep intact federal rules limiting the export of encryption software. Academics and civil liberties groups have mounted several attacks on the regulations, winning a similar result before an appeals court in California, a decision currently under review.

Today's decision caps a four-year legal battle by the National Security Agency to bar Cleveland law professor Peter Junger from making certain course materials available online to foreign students.

The court did not find the export regulations unconstitutional but ordered that the case be sent back to the trial court for reconsideration.

A three-judge appellate panel in Cleveland put the matter to rest this morning after finding that computer programming languages are forms of expression that warrant First Amendment protections.

"This is a great day for programmers," said Raymond Vasvari, the American Civil Liberties Union legal director in Cleveland. "Now professor Junger will be able to publish online the chapter of his book dealing with encryption."

Attorneys for the government could not immediately be reached for comment.

The government argues that restrictions on encryption export--which carry potential criminal penalties for violations--are necessary for national security.

In court papers, government attorneys had argued that computer programs are "routinely written, distributed and used for the wholly non-expressive purpose of making a computer carry out a specific task" and therefore should not be granted free speech protections.

Regulations surrounding encryption have eased considerably since Junger filed his lawsuit in 1996, but the issue has remained a rallying cry for civil liberties groups and U.S. software companies that have complained the regulations make it more difficult to compete overseas.

In addition, the ruling could hold deeper significance for other battles to keep computer code off of the Internet. According to some legal analysts, programmers accused of wrongdoing could find a powerful First Amendment defense if the decision holds.

For example, some theorized that today's decision could test the balance between free speech and copyright protections in litigation between the movie industry and Web operators accused of circulating a program that lets people crack the security on DVDs.

"In source code copyright cases, like the DVD cases, judges now have to give careful consideration to the constitutional ramifications as well as the copyright issues involved," said Cindy Cohn, a San Mateo, Calif., lawyer with the firm McGlashan & Sarrail.

Cohn represents University of Illinois professor Daniel Bernstein in a case that has many similarities to Junger's. Bernstein also wanted to publish his encryption program on a Web site without fear of prosecution.

He won his case in the 9th Circuit Court of Appeals, but the decision was returned to the court for a full panel review.

When regulations surrounding encryption changed, Cohn said she and the government attorneys asked that the case be returned to the lower court for rehearing.

"It is unclear to me what ramifications Junger's case will have on the current status of encryption laws," Cohn said. "But it will ensure that the government can't change its mind again. They're more likely now to stick with their current position."

Encryption is a process of turning written language into a scrambled, unrecognizable form. Most encryption today uses a mathematical program that transforms so-called plaintext into ciphertext. A key, or password, is then used to crack the code and return the information to readable form.

Encryption is widely viewed as a critical component to protecting privacy and to bolstering consumer confidence in e-commerce.