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Free-speech motion filed in crypto class case

A lawyer for a Cleveland law professor responds to government arguments in a case challenging regulations that prevent the teaching of encryption technology to foreign students.

A lawyer representing Cleveland law professor Peter Junger has responded to government arguments in a case challenging regulations that prevent the teaching of encryption technology to foreign students.

Junger, a 25-year veteran of Case Western Reserve School of Law, filed a federal lawsuit in August claiming that the State Department and the National Security Agency limit his right to teach his Computers and the Law class on cryptography and post course materials online.

The government's arguments in the case are vague and offer no clear answers, according to Gino Scarselli, the attorney representing Junger. "Professor Junger or anyone else could be prosecuted under severe criminal and civil penalties depending on what they disclose and how they disclose it," Scarselli said today. Violators of the law could face up to ten years in prison and fines of up to $1 million.

The government filed briefs on August 21 asking the court to either dismiss the lawsuit or grant the government judgment prior to the trial, making a two-tiered argument: Cryptographic software should be regulated, but this regulation would be relaxed under First Amendment standards. Technical data that is available to the public would also be exempt from the licensing requirements.

Scarselli, who has filed a brief and a motion for summary judgment in his client's favor, says his main arguments focus on First Amendment rights. He contends that safeguards need to be built because the licensing scheme gives too much power to government officials.

"The government can exert its discretion as it sees fit. It could pick and choose who to prosecute and decide who will need a license and even let a lot of stuff go," Scarselli said. "It almost seems to be a case of selective enforcement."

The case could set a precedent for the future of encryption as it becomes more sophisticated and supported by the Internet community. The government, however, maintains that elaborate encryption could pose a threat to national security if falls into the hands of terrorists.

Under the government's International Traffic in Arms Regulations (ITAR), Junger is required to receive permission from the State Department's Office of Defense Trade Controls before he can teach or talk about encryption software to foreign students. The State Department currently classifies cryptography as a "munition," restricting its export. (A new proposal just approved by President Clinton bumps the cryptography key limit permissible for export from 40 to 56 bits, as long as the decoding keys are kept by a third party and accessible to government agencies.)

Teaching cryptography to foreign students isn't the only possible violation under the ITAR law. Sending Pretty Good Privacy on a disk to London or posting it on a Web page for downloading is a "clear violation of this confusing and vague" provision, according to Scarselli.

Junger is teaching his class this semester to about 12 U.S. citizens, but turned away a student from Thailand. "We told him that given the material covered and the possible penalties, it would be best for him not to take it," Scarselli said. The student opted to enroll in an independent study course with Junger as an alternative.

The government's response to the arguments is due October 18. Oral arguments are scheduled to take place on November 20.