Feds on the Ropes In Suit Challenging Arms Export Law (Dan Goodin, The Recorder (SF), 9/23/96, p.1) A professor who says federal restrictions on the export of encryption software violate his right to free speech seemed to get a sympathetic hearing from a federal judge on Friday. In a closely watched case challenging export restrictions on encryption software, U.S. District Judge Marilyn Hall Patel did not rule on summary judgment motions. But she appeared impatient when a U.S. Department of Justice attorney attempted to revive an issue settled months ago in that case. Patel handed plaintiff Daniel Bernstein a big victory in April, ruling that software is protected speech under the First Amendment. But the ruling in _Bernstein v. U.S. Department of State_, 95-0582, didn't deter government attorneys Friday from trying to reargue the point. Justice Department trial attorney Anthony Coppolino argued that the government controls on the export of software are not based on the content of the computer code but rather on its functionality. Therefore, he argued, the restrictions are not a prior restraint of speech protected under the Constitution. Patel replied: "You'll get a chance to argue that in another courtroom." Cindy Cohn, an associate with San Mateo's McGlashan & Sarrail representing Bernstein, said she was pleased with the way the hearing appeared to go. "My impression is the fact that [Patel] was asking more questions of [Coppolino] than me meant that he was the one who needed to convince her," Cohn said. Coppolino declined to comment. LICENSE TO 'SNUFFLE' Filed in February 1995, the suit challenges provisions of the International Traffic in Arms Regulation Act, which classifies encryption programs as "munitions" and subjects them to strict export controls. In October 1993, the U.S. State Department told Bernstein he would need an arms export license to post his "Snuffle" encryption program and accompanying documentation to an Internet discussion group. He subsequently filed suit seeking to have the requirement declared unconstitutional. After Patel's April ruling, the case now turns on whether restrictions on the export of such software and accompanying "technical data" amount to prior restraint, which can only be exercised extremely narrowly. High-tech companies are closely watching the case, having complained bitterly for years that the law has crippled their ability to compete in the global software market. Particularly in the burgeoning arena of Internet and network-related software products, encryption features are considered essential to protect sensitive data transmissions from unauthorized access. Legislative attempts at relaxing export laws so far have been unsuccessful. A bill now before the Senate Commerce Committee has received stiff opposition from the Clinton administration, and even its supporters say it is unlikely the bill will pass this term. But Stanton McCandlish, a spokesman for the Electronic Frontier Foundation - a group that advocates extending civil liberties into digital media such as the Internet - said the so-called Pro-CODE bill sponsored by Sen. Conrad Burns, R-Mont, could be made moot by Bernstein's case. "If we get the ruling we're looking for," he said, "and it's affirmed at the Supreme Court level, which is pretty likely, the Pro-CODE bill is probably not needed at all." (retyping by NLA, newspaper liberation army.)