Junger case starts over (CNET)

   Crypto class case at square one
   By Courtney Macavinta
   September 3, 1997, 2:15 p.m. PT
   
   Cleveland law professor Peter Junger today filed a new challenge to
   federal regulations that prevent him from teaching encryption
   technology to foreign students or posting his course on the Net.
   
   The filing comes in the wake of another federal ruling involving
   Daniel Bernstein, a University of Illinois professor who on August 25
   won the right to publish his encryption program on his Web site
   without fear of prosecution. (See related story)
   
   Junger initially sued the government last August, but he has now filed
   a revised complaint in the U.S. District Court of Eastern Ohio due to
   White House rules that switched jurisdiction over encryption export
   licenses from the State Department to the Commerce Department in
   January.
   
   The professor wants a court to clarify that his First Amendment right
   to teach his "Computers and the Law" class online and to post any
   encryption program on his Web site. His course covers patent and
   copyright protection of encryption software, as well as computer
   security legal issues.
   
   Junger said he needs make encryption available to students so they can
   understand the technology. Although his site was created for his
   course, he also links to other controversial Net sites that he claimed
   have faced censorship elsewhere on the Internet.
   
   "If the government succeeds in the case, it means that it can require
   a license for anybody who writes a computer program," Junger said
   today. "I'm a strong believer in free speech. Whenever something on
   the Internet is censored, I feel responsible to make a copy available
   on my site--and the government is trying to suppress this encryption
   software."
   
   It is a federal crime to export strong encryption without a license,
   even if a person is "exporting" the program via an academic Web site.
   Federal law deems such activity a threat to national security, as the
   government has argued in two other cases involving the publishing and
   exporting of electronic materials about encryption.
   
   A 25-year veteran of Case Western Reserve School of Law, Junger's
   previous case is now basically moot. His lawyers will start all over
   with today's filing that reflects the shift of regulatory authority to
   Commerce.
   
   Junger has already filed three applications with Commerce asking for
   clarification on his ability to post 13 items online, including a
   chapter of his course book and international copies of Pretty Good
   Privacy, for example.
   
   "Since the change in January, we've gone through the channels at
   Commerce and were told a license is necessary to make available
   certain encryption programs online," Raymond Vasvari, an attorney for
   Junger said today. "We're looking for a determination from the court
   that this regulatory scheme violates the professor's free speech under
   the First Amendment."
   
   The jurisdictional change has also held up another crypto law
   challenge in Karn vs. the U.S. Department of State, filed by
   cryptographer Philip Karn in September 1995. Karn was denied
   permission to export a computer disk containing the source code in the
   book Applied Cryptography.
   
   Junger's lawyers also asked Commerce about the legality of providing
   Net links to strong encryption programs overseas. "The department
   initially said, 'Posting links would not be considered an export,'"
   said Gino Scarsellim, Junger's lawyer. "I then asked them to clarify
   this, and they said the use of a links may in some cases constitute an
   export."
   
   Commerce's gray area as to what is actually legal is just part of the
   issue. The real question the case brings up is whether books in
   digital form, courses, or other online material about encryption are
   protected as speech in the United States.
   
   Hard-copy books can be exported and are shielded by the First
   Amendment. A ruling by U.S. District Court Judge Marilyn Hall Patel
   says publishers of digital material are protected too.
   
   Last week, she issued an order in San Francisco forbidding the
   government from prosecuting Bernstein, who was seeking to post an
   encryption program online called "Snuffle," which he wrote as graduate
   student. For now, the ruling only applies to Bernstein, but Patel's
   ruling made clear that it was Bernstein's constitutional right to
   publish his program.
   
   "All of her opinions were very thoughtful, so they should carry weight
   with any district judge," Scarsellim said. "Professor Junger's
   activities are a bit broader than Bernstein's. He's not just looking
   to place his own code online but the works of others as well. However,
   Bernstein's lawyers also brought a challenge to the law that would
   affect anyone."
   
    related news stories
    • Injunction blocked in crypto case August 29, 1997
    • Crypto ruling impact unclear August 26, 1997
    • New crypto rules deemed unconstitutional August 26, 1997
    • Crypto class gets clearance January 10, 1997
    • Crypto class bans foreign students August 8, 1996
   
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