Encryption export ban may violate US law

A US federal appeals court has raised a question mark over whether current restrictions on the export of encryption software violate the country's Constitution.

A three-judge panel of the US Court of Appeals for the Sixth Circuit based in Ohio ruled yesterday that documents written in computer programming languages are constitutionally protected by First Amendment rights to free speech. The panel said in a unanimous decision: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment."

The ruling sends the case of Junger versus Daley back to the US District Court where Judge James Gwin previously ruled that programming languages were more functional than expressive and so did not merit First Amendment protection.

The case began in 1996 when Peter Junger, a professor of law at Case Western Reserve University in Cleveland, wanted to post encryption codes on his website to help his computer law students understand their function.

The National Security Administration (NSA) told him that he needed a licence to post the encryption codes and suggested he might be violating US federal law against encryption export by giving foreign students access to the programs.

Junger filed a lawsuit, claiming that the US government had violated his First Amendment rights to free speech and academic freedom. But Judge Gwin ruled against Junger, who subsequently appealed.

The American Civil Liberties Union, which represents Junger, praised the latest ruling. Raymond Vasvari, the group's legal director, said: "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."

However, the long-term affects of the appeals court ruling are unclear. Winn Schwartau, author of the forthcoming book, CyberShock, said one key issue was the need to balance the right of individuals to free speech against national security.

"The question is how do you restrict free speech when it affects national security? With encryption, there are national security issues," he said.

Another problem is the issue of the right to free speech versus copyright protection, said Schwartau. Some industry watchers said the ruling could make it possible for programmers to post codes that thwart DVD security measures.

To further complicate matters, the US government has since eased its previous restrictions on the export of encryption software, and further relaxation of the legislation may make the lawsuit irrelevant.

But Schwartau said the case is likely to end up in the US Supreme Court. "For years the NSA has done everything it can to keep the encryption genie in the bottle, but from time to time it slips out," he said. "I'm sure it will appeal this ruling."