FC: Encryption ruling from appeals court says code is speech

[Declan McCullagh <declan () well com>]

This is good news but unfortunately the ACLU gets it wrong. This is not the 
first-ever such ruling by an appeals court. That happened in the Bernstein 
9th Circuit case a year ago:
  http://www.eff.org/pub/Privacy/Crypto_export/Bernstein_case/Legal/19990506_circuit_decision.html

The decision was then vacated, but it was the first.

My article:
  http://www.wired.com/news/politics/0,1283,35425,00.html

The sixth circuit decision:
  http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0117p.06

*********

> From: Emilyaclu () aol com
> Date: Tue, 4 Apr 2000 18:21:59 EDT
> Subject: Big Win in Junger Encryption/Speech Case
>
> In Legal First, Federal Appeals Court is Unanimous:
> First Amendment Applies to Programming Code
>
> FOR IMMEDIATE
> Tuesday, April 4, 2000
>
> CONTACT: Christine Link, Executive Director, ACLU of Ohio, 216-781-6277
> Raymond Vasvari, Legal Director, ACLU of Ohio, 216-781-8639
>
> CLEVELAND, OH--The American Civil Liberties Union today lauded a first-ever
> ruling by a federal appeals court that the First Amendment protects documents
> written in computer programming languages.
>
> "This is a great day for programmers, computer scientists and all Americans
> who believe that privacy and intellectual freedom should be free from
> government control,"said ACLU of Ohio Legal Director Raymond Vasvari.
>
> In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for
> the Sixth Circuit, based in Ohio, overturned the July 1998 ruling of a
> federal district judge in Akron, who held that computer programming languages
> are more functional than expressive, and thus do not merit First Amendment
> protection.
>
> The decision comes after four years of litigation in Junger v. Daley, a case
> filed in August 1996 on behalf of Peter Junger, Professor of Law at Case
> Western Reserve University in Cleveland.
>
> Professor Junger teaches a class on computers and the law, which includes
> instruction on encryption, the means of using computers to encode and decode
> messages and data in order to preserve their privacy.
>
> In 1996, officials at the National Security Agency (NSA), the super-secret
> government organization which conducts electronic eavesdropping for the
> military, suggested that Junger might be violating federal law by exposing
> foreign students to a primitive encryption program as part of a class
> project.
>
> Junger brought suit in federal court, claiming that the First Amendment
> protected his right to academic freedom, and to public on the Internet
> portions of a textbook he had written on computers and the law.  His claims
> were denied by U.S. District Judge James Gwin in July 1998.  The appeal was
> filed in August 1998, and argued in December 1999.
>
> "At first blush this seems to be a very technical case.  But it is hard to
> overstate its importance," Vasvari said.  "For the first time, a federal
> appellate court has decided that computer programming languages are entitled
> to the protections of the First Amendment.  This extends to a new medium of
> expression the sort of protection which music, poetry, scientific articles
> and other forms of technical expression have always enjoyed."
>
> Encryption source code is routinely shared by members of the online community
> interested in computer privacy and civil rights.  The Junger case, and a
> related matter pending in the Ninth Circuit, Bernstein v. Department of State
> [http://www.aclu.org/news/n112497a.html], have been closely watched by civil
> libertarians, computer programmers and the software industry.

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