________________________________________________________________________________ Wired News Crypto Regs Challenged Again by Declan McCullagh 4:00 p.m. Apr. 4, 2000 PDT Privacy advocates won a preliminary victory when for the second time a federal appeals court questioned restrictions on data- scrambling encryption software. The Sixth Circuit Court of Appeals suggested Monday that President Clinton's restrictions on distributing encryption products might be unconstitutional. "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," a three-judge panel said in a unanimous 17KB decision. That decision reversed a July 1998 ruling by a federal district court. And while the panel did not strike down the Clinton administration's regulations, it did refer the matter back to U.S. District Judge James Gwin for another hearing. Earlier Gwin had ruled the First Amendment did not apply. The Justice Department says source code is akin to instructions for a machine, and rules governing its distribution are necessary for national security reasons. Now that the appeals court has ruled source code is protected by the First Amendment, the government will have a much tougher time arguing it should have the power to imprison a law professor for posting a book on his website. Peter Junger, a professor at Case Western University School of Law, sued the federal government after it told him he needed a license to post a chapter of his Computers and the Law textbook online. The American Civil Liberties Union, which represents Junger, applauded the ruling. "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 Legal Director Raymond Vasvari. In a separate case that also challenges the criminal penalties the U.S. government imposes for unauthorized encryption distribution, the 9th U.S. Circuit Court of Appeals in May 1999 ruled that encryption source code was speech protected by the First Amendment. "We conclude that the challenged regulations allow the government to restrain speech indefinitely with no clear criteria for review," the 9th Circuit panel said in its decision in a case brought by math professor Daniel Bernstein. But it's not clear what happens next in either the Junger or Bernstein cases. The Clinton administration relaxed the regulations in January, and the move is likely to delay both lawsuits for some time. In fact, the Commerce Department, which administers the regulations, says that Bernstein no longer has anything to worry about. "You ask for an advisory opinion in light of your concern that the new regulations 'continue to interfere with Professor Bernstein's planned scientific activities.' Your concerns are unfounded," a Commerce Department Bureau of Export Administration official wrote to Bernstein's lawyers in February. Bernstein asked in March for a rehearing by the district court to take into account the regulation changes. http://www.wired.com/news/politics/0,1283,35425,00.html ________________________________________________________________________________ no copyright 2000 rolux.org - no commercial use without permission. is a moderated mailing list for the advancement of minor criticism. more information: mail to: majordomo@rolux.org, subject line: , message body: info. further questions: mail to: rolux-owner@rolux.org. archive: http://www.rolux.org