bernstein case hits appeals court

["Vladimir Z. Nuri" <vznuri@netcom.com>]

------- Forwarded Message

Date: Tue, 09 Dec 1997 12:59:41
To: believer@telepath.com
From: believer@telepath.com
Subject: IP: Encryption case hits U.S. appeals court

Encryption case hits U.S. appeals court

Copyright � 1997 Reuters 

SAN FRANCISCO (December 8, 1997 9:47 p.m. EST http://www.nando.net) -
Lawyers for a software developer argued Monday in federal appeals court
that government controls on distribution of computer encryption code
constitute an unlawful prior restraint of free speech.

In the closely watched case pitting national security interests against the
right to free speech, a government attorney countered that the software in
question was a sensitive product and that its distribution should be
limited by the government.

At issue is whether a code developed by Daniel Bernstein, now a professor
at the University of Illinois, constitutes a form of speech and should
therefore be protected under the First Amendment to the U.S. Constitution.

Encryption software allows computer data to be scrambled in order to ensure
the confidentiality of information. Current federal law prohibits the
export of strong encryption software because of concerns over national
security, even though powerful encryption codes are already available
overseas or on the Internet from foreign manufacturers.

Monday's hearing before a three-judge panel of the 9th U.S. Circuit Court
of Appeals was prompted after U.S. District Judge Marilyn Hall Patel ruled
in August that the Constitution prevented the government from placing
export restrictions on the code. The government appealed. 

Scott McIntosh, an attorney representing the Department of Commerce, told
the judges the code should be viewed not as a form of speech but as a
product that in the wrong hands could jeopardize national security.

The three justices grilled McIntosh during his allotted 20 minutes, often
preventing him from finishing his sentences.

"They asked probing questions and beyond that I don't want to
characterize," McIntosh told reporters after the hearing.

Bernstein sued several government agencies in 1995 after he was told that
he would need to be licensed as an arms dealer to post his software
encryption code, called Snuffle 5.0, on the Internet.

Cindy Cohn, who headed Bernstein's legal team, argued that Snuffle was an
expression of free speech and should be protected from the kind of scheme
that the government uses to regulate code.

"The basic flaw with the government's position is that they use a
pre-publication licensing scheme," Cohn said. "That's exactly the point --
when the government sets up a bureaucrat to decide who gets to speak and
who does not, that's a form of prior restraint."

Compared with the harried questioning of McIntosh, the justices questioned
Cohn fewer times, allowing her to finish her sentences more often.

Cohn later told reporters she was pleased with the hearing, although she
declined to comment on the outcome. A decision by the court could come at
any time over the next few weeks.

By GREG FROST, Reuters

Copyright � 1997 Nando.net     


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