Junger Plans to Appeal Encryption Ruling

(July 9, 1998) Peter Junger, the Ohio law professor who lost his court battle over encryption software last week, announced Wednesday that he plans to appeal.   Junger had sued to enjoin the enforcement of government export regulations that prevented him from publishing encryption programs. Junger asserted that his programs were protected free speech.  However, Judge Gwin ruled that his programs were functional, not expressive, and thus not entitled much First Amendment protection.

Junger's appeal case is strenthened by the decision in the Daniel Berstein case.  In that case federal district court judge Judge Marilyn Patel in California ruled last year that encryption is protected speech. The government appealed, and oral argument was held on December 8, 1997.  The decision could be handed down at any time.

Judge Patel held that "[l]anguage is by definition speech, and the regulation of any language is the regulation of speech." However, Judge Gwin made no attempt follow or distinquish the California precedent. He merely and unjudiciously said that Judge Patel was wrong.  He wrote:

The Bernstein court's assertion that "language equals protected speech" is unsound. ... Furthermore, the court in Bernstein I misunderstood the significance of source code's functionality.  (See, pages 14-15.)

Peter Junger wrote in a press release that "There is thus a clear split between the two courts: Judge Patel holding that computer software is protected by the First Amendment and Judge Gwin holding that it isn't."

Junger also stated in his press release that, "We have had almost no financial support for this case, but the issue of whether encryption software and software in general is protected like other writings under the First Amendment, or whether it is to be treated as a special exception like obscenity and fighting words as Judge Gwin held, is so important that we will have to scrape up the resources somehow to bring an appeal.''

Junger is a law professor who is capable of filing his own appeal without incurring any legal fees.

Other Resources

• Bernstein v. U.S. Dept. State, 974 F. Supp. 1288 (N.D.Cal. 1997).
• Junger v. Daley. Peter Junger's website contains copies of many pleadings and other documents.