------- Forwarded Message Date: Tue, 09 Dec 1997 12:59:41 To: believer@telepath.com From: believer@telepath.com Subject: IP: Encryption case hits U.S. appeals court Encryption case hits U.S. appeals court Copyright © 1997 Reuters SAN FRANCISCO (December 8, 1997 9:47 p.m. EST http://www.nando.net) - Lawyers for a software developer argued Monday in federal appeals court that government controls on distribution of computer encryption code constitute an unlawful prior restraint of free speech. In the closely watched case pitting national security interests against the right to free speech, a government attorney countered that the software in question was a sensitive product and that its distribution should be limited by the government. At issue is whether a code developed by Daniel Bernstein, now a professor at the University of Illinois, constitutes a form of speech and should therefore be protected under the First Amendment to the U.S. Constitution. Encryption software allows computer data to be scrambled in order to ensure the confidentiality of information. Current federal law prohibits the export of strong encryption software because of concerns over national security, even though powerful encryption codes are already available overseas or on the Internet from foreign manufacturers. Monday's hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals was prompted after U.S. District Judge Marilyn Hall Patel ruled in August that the Constitution prevented the government from placing export restrictions on the code. The government appealed. Scott McIntosh, an attorney representing the Department of Commerce, told the judges the code should be viewed not as a form of speech but as a product that in the wrong hands could jeopardize national security. The three justices grilled McIntosh during his allotted 20 minutes, often preventing him from finishing his sentences. "They asked probing questions and beyond that I don't want to characterize," McIntosh told reporters after the hearing. Bernstein sued several government agencies in 1995 after he was told that he would need to be licensed as an arms dealer to post his software encryption code, called Snuffle 5.0, on the Internet. Cindy Cohn, who headed Bernstein's legal team, argued that Snuffle was an expression of free speech and should be protected from the kind of scheme that the government uses to regulate code. "The basic flaw with the government's position is that they use a pre-publication licensing scheme," Cohn said. "That's exactly the point -- when the government sets up a bureaucrat to decide who gets to speak and who does not, that's a form of prior restraint." Compared with the harried questioning of McIntosh, the justices questioned Cohn fewer times, allowing her to finish her sentences more often. Cohn later told reporters she was pleased with the hearing, although she declined to comment on the outcome. A decision by the court could come at any time over the next few weeks. By GREG FROST, Reuters Copyright © 1997 Nando.net ********************************************** To subscribe or unsubscribe, email: majordomo@majordomo.pobox.com with the message: subscribe ignition-point email@address or unsubscribe ignition-point email@address ********************************************** http://www.telepath.com/believer ********************************************** ------- End of Forwarded Message