Reuters
3:40pm 6.Jul.98.PDT WASHINGTON -- A district court has dismissed a law
professor's challenge to US regulations strictly limiting the export of
computer data-scrambling technology.
Judge James Gwin ruled late Friday that the export limits, which prevented
Case Western Reserve University Law School professor Peter Junger from
posting the text of encryption programs on the Internet, did not violate
the constitutional right to free speech.
The Ohio court's ruling contradicts a California district court ruling last
August that said source code -- the instructions a person writes telling
the computer what actions to perform -- constitutes a form of speech
subject to First Amendment protection.
"Unlike instructions, a manual or a recipe, source code actually performs
the function it describes," Gwin wrote. "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."
Neither ruling gave speech protection to compiled code, a version of source
code converted into an actual software program that could be run on a
computer.
The US government appealed the California decision and the issue may
ultimately be decided by the Supreme Court.
Civil libertarians and high-tech companies had hoped the court would
overturn the export limits on encryption technology, which uses
mathematical formulas to scramble information and render it unreadable
without a password or software "key."
Once the realm of spies and generals, encryption has become an increasingly
critical means of protecting electronic commerce and global communications
over the Internet.
But law enforcement agencies, fearing encryption will be used by terrorists
and international criminals to hide their activities, have instituted
strict controls to limit the export of strong scrambling products.
Lawyers opposed to the export rules said the Ohio court misunderstood the
difference between source code and compiled code.
"The Ohio court clearly doesn't understand the communicative nature of
software," said Shari Steele, an attorney with the Electronic Frontier
Foundation. "It's true that software helps to perform functions, but it
does so by telling computers what to do.... It certainly is speech
deserving of the highest levels of First Amendment protection."
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james 'keith' thomson