| [ sciEncE ] in KIDS 글 쓴 이(By): Convex (4ever 0~) 날 짜 (Date): 1999년 5월 8일 토요일 오전 05시 09분 29초 제 목(Title): [암호] 미국정부 <=> 학자 [NYT] 뉴욕 타임즈에서 퍼옵니다. Court Calls Encryption Rules Unconstitutional By PETER WAYNER The United States government's restrictions on the export of encryption software are an unconstitutional prior restraint of free speech, a federal court in California ruled on Thursday. The decision was handed down by a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco in the case of an Illinois mathematics professor who sought to distribute information about encryption on the Internet. Two of the three judges on the court, upholding a lower-court ruling, concluded that the federal export regulations "operate as a prepublication licensing scheme that burdens scientific expression" and thus were prohibited by the First Amendment. The federal government has long argued that encryption software used to scramble messages is a "munition" that can be used by foreign governments to thwart eavesdropping operations. In past wars, many battles have turned over information gleaned from intercepted messages and the United States intelligence community has fought hard to avoid giving up any technological high ground. In recent years, many businesses and computer software companies have lobbied the government to relax these regulations, arguing that secret codes are essential to protect and expand Internet commerce. Moreover, they have argued that since encryption software is common overseas, American companies need more freedom to compete in the global market. This case began when Daniel Bernstein, who now teaches mathematics at the University of Illinois at Chicago, was a doctoral student at the University of California at Berkeley. Bernstein developed an encryption program he called "Snuffle" and wanted to send it different members of the academic community to ask for comment. After Bernstein did not receive an export license, he chose to file a lawsuit backed with the legal and financial help of the Electronic Frontier Foundation. The decision, written by Judge Betty B. Fletcher and joined by Myron H. Bright, explained that the court found the set of regulations vests "boundless discretion in government officials." In the past, the Supreme Court has held any prior restraint on publication can only be supported in extreme cases. According to the opinion, licenses like the ones Bernstein was required to seek are a form of prior restraint that "run the twin risks of encouraging self-censorship and concealing illegitimate abuses of censorial power." Judge T.G. Nelson dissented from the opinion and argued that trading encryption software was a form of conduct, not speech, and thus eligible for government regulation. Nelson's arguments agree with the decision in a case brought by Peter Junger, a law professor in Ohio who also wanted to export encryption software. In that case, the judge concluded that software was a tool for controlling machines. Fletcher and Bright disagreed with this point and stated, "The source code at issue here is text intended for human understanding, albeit in a specialized language." They tempered this claim by also stating that not all software was expression aimed for humans. Both the Department of Justice, which brought the case, and the Department of Commerce, which reviews the applications for licenses, declined to comment as they reviewed the case. John Gilmore, one of the board members of the Electronic Frontier Foundation, said, "We're certainly pleased that they upheld the District court's decision." The decision is not expected to have much immediate effect because the past decisions have been stayed while the appeals are heard. Cindy Cohn, the lawyer who argued the case for the EFF and Bernstein, said on Thursday: "Since you can't unpublish something once you publish it, the government has a pretty strong argument to stay the opinion. If they do, we'll probably ask for expedited review. He's been waiting a long time." The Department of Justice could either ask the entire Ninth Circuit panel or the Supreme Court hear an appeal of the case. (5/5) By PAMELA MENDELS Professor Argues for Free Speech in Computer Tongues The instructions written by computer programmers are a form of expression as fully entitled to free-speech protection as a published article or the notes in a musical score. That was one of the chief arguments made this week as a Cleveland law school professor sought to have a federal appeals court overturn a decision upholding a law that prevents him from publishing encryption-related course materials online. The case brought by Peter D. Junger, who teaches a course in computers and the law at Case Western Reserve University in Cleveland, is one of a trio of closely watched lawsuits challenging U.S. export restrictions on strong encryption software, which scrambles data to keep it private. The restrictions apply to the software's source code, the series of commands written by the programmer that is converted or "compiled" into the machine-level code that the computer can run. Federal officials argue that the export regulations are necessary for national security, to prevent terrorists and criminals from hiding their communications. Junger, as part of his course, requires students to use a short encryption program he has written to help teach them about computing. He would like to put the source code for the program on his Web site, but believes that encryption regulations prevent this without a license from the U.S. Department of Commerce. This requirement, Junger says, is an unwarranted intrusion into his Constitutional free speech rights. In ruling against Junger last year, Judge James S. Gwin of the United States District Court for the Northern District of Ohio, said that source code was not so much speech as a function functional device, like telephone circuitry, and, therefore, outside the scope of First Amendment protection. But Junger's lawyers, in a 66-page brief filed Monday in the United States Court of Appeals for the Sixth Circuit in Cincinnati, argue that source code, which looks to an untrained eye like a combination of mathematical formulas, scattered words and punctuation marks, is really a form of expression. For one thing, they say, source code must be converted into another form, object code, before the computer can execute the instructions. Moreover, they argue, source code allows computer scientists and others to communicate precisely with each other about the details of their work. "Source code is a uniquely tailored language that speaks with tremendous precision to methodological discussion," said Raymond Vasvari, legal director of the American Civil Liberties Union of Ohio Foundation, which is representing Junger. In his decision, Judge Gwin noted that source code is generally unintelligible to anyone outside of the programming world. But Junger's lawyers say in their brief that this is irrelevant. "If there were a First Amendment requirement that is met only if the majority of people understand the speaker's message, then a speech in Navajo, the musical score of Beethoven's Ninth Symphony and the proof of Fermat's Last Theorem, all of which are understood by relatively few people, would fall beyond the protection of the First Amendment," they wrote. Lawyers for the U.S. Department of Justice have not yet reviewed the brief and therefore declined comment. Their response is expected by the end of this month, and Vasvari said there could be hearings on the matter this fall. Not everyone buys the Junger team's reasoning. Stewart A. Baker, a Washington-based lawyer and former general counsel at the National Security Agency, said that although he finds the Junger argument "plausible," he believes the government has a good response. Source code exists largely to allow for communication between people and computers, but the First Amendment exists to protect communication among people, he said. "I think in the end, the First Amendment argument is not a winner," Baker said. "I think the government is right, that source code is probably better understood as a thing that changes machine behavior." Whatever the outcome of Junger's appeal, the issues raised by the case are unlikely to be settled in the Cincinnati courtroom. A similar case, pending in federal district court in Washington, was brought by an engineer, Philip R. Karn, Jr., who objected to the requirement that he have a license to export encryption source code on a floppy disk, even though a book containing the same code faced no such restrictions. A second case, more like Junger's, was brought after Daniel J. Bernstein, now a mathematics professor, wanted to post a copy of an encryption program he had written to an Internet discussion group. Unlike Junger, Bernstein won a favorable decision in United States District Court in San Francisco. The government appealed, and both sides are now awaiting a decision from the Court of Appeals for the Ninth Circuit. Many expect the questions raised by the cases will eventually land before the Supreme Court. (5/3) 2 Encryption Cases Cast Shadow on Academia By LAURIE J. FLYNN Daniel Bernstein, a math professor at the University of Illinois at Chicago, routinely makes his course materials available for students and researchers, both within and outside of the university. Likewise, Peter Junger, law professor at Case Western Reserve University in Cleveland, widely distributes the coursework to his popular class Computers and the Law. But while one may teach math and the other law, the two share something in common: both are prevented from posting their course materials on the Internet. The reason? Profs. Bernstein and Junger's coursework includes encryption software, computer code whose export is regulated by the United States Department of Commerce. As a result, they share something else: Both men are awaiting decisions in separate lawsuits claiming that the government is violating their right to free speech under the First Amendment. Separate rulings are expected any day in both cases. The outcome, legal experts say, could have broad-reaching effects on the future of electronic commerce as well as academic freedom. The cases have been watched closely by legal experts and government agencies, as well as computer industry executives who have been lobbying furiously for the federal government to remove all restrictions on exporting software. (A third lawsuit involving encryption software, Karn v. the U.S. Department of State, was expected to have broad implications as well, but that case is stalled in the courts.) Just last week, the United States District Court of Eastern Ohio heard oral arguments in the Junger case, which Junger originally filed back in 1996 when he was told he would need an export license before he could post his Computers and the Law class on the Web. At last week's hearing, Junger's lawyer, Raymond Vasvari, argued, as Bernstein's lawyers before him, that encryption software is protected speech. The government countered that encryption is not a form of speech, but rather a function of the software. A lawyer torney for the Justice Department said all the government is trying to do is regulate the function. But after the hearing, Junger said he felt if the government were to prevail it could apply the same logic to preventing other types of material from being published electronically. G o v e r n m e n t "If the government can constitutionally require a n d l a w me to get a license, which I probably can't get, e n f o r c e m e n t before I publish encryption software, they o f f i c i a l s could require me to get a license before I h a v e l o n g publish any sort of software," Junger said. a r g u e d t h a t e n c r i p t i o n Vasvari also contends that the Commerce s o f t w a r e Department's process for granting licenses m u s t b e appears flawed and muddled. Government r e g u l a t e d officials, he said, use "standardless t o p r e v e n t discretion" in deciding the fate of i t f r o m applications. "We don't know who decides or f a l l i n g what criteria they use," he said. i n t o t h e w r o n g But the case has even broader implications h a n d s . than free speech law. The issue of encryption regulation has been debated for years. Government and law enforcement officials have long argued that encryption software must be regulated to prevent it from falling into the wrong hands: high-tech criminals and foreign governments who could use it to cover their tracks. Computer industry officials and free-speech advocates, on the other hand, say the restrictions damage the U.S. software industry and that the export restrictions on U.S.-made encryption software is leading to the export of programming jobs to countries without such regulations. They also argue that encryption is already widely available around the world. Working for Junger is a 1996 ruling in the Bernstein case. In that case, Judge Marilyn H. Patel ruled nearly two years ago that software was, in essence, speech, and that the government's restrictions on Bernstein amounted to an illegal prior restraint on speech and therefore a violation of the First Amendment. But the government appealed, leaving Bernstein still unable to publish his ideas electronically while an appeals court decides the fate of the case. Last December, a three-judge panel of the Ninth U.S. Circuit Court of Appeals heard the appeal and is currently considering Patel's 1996 decision. Bernstein's suit dates back to February 1995, when he was a graduate student at the University of California at Berkeley. At the time, State Department officials told him he would have to submit his ideas about cryptography to the government for review, get a government license and register as an arms dealer before he could publish an electronic version of a short encryption program he had written called Snuffle. Without such a license he could not even discuss his ideas at conferences, which foreigners might attend, or publish them on the Internet, where they could be viewed overseas. That was until last year, when the Clinton administration shifted encryption regulation from the State Department to the Commerce Department. With that shift, software that scrambles communications is no longer classified as a weapon, though it is still subject to export rules. Under current regulations, it is legal to send computer source code overseas in printed form but not electronically. In its appeal, the government argued that it was trying to preserve the ability of intelligence agencies to eavesdrop on foreign governments and citizens. In preventing Bernstein from publishing Snuffle electronically, government lawyers argued that what was being restricted was not speech but the medium of the Internet, which makes it easy for foreigners to use Bernstein's source code to encrypt data. It's now been nearly five months since a panel of three judges heard the government's appeal, and nobody is watching more intently than Federal District Judge James S. Gwin, the presiding judge in the Junger case. But even when the two cases are decided, it won't likely be the end of either one. Any decision in Bernstein is almost certain to result in an appeal to the U.S. Supreme Court, legal experts say. In Junger, the case is likely to be sent to an appeals court. --,--`-<@ 매일 그대와 아침햇살 받으며 매일 그대와 눈을 뜨고파.. 잠이 들고파.. Till the rivers flow up stream | Love is real \|||/ @@@ Till lovers cease to dream | Love is touch @|~j~|@ @^j^@ Till then, I'm yours, be mine | Love is free | ~ | @@ ~ @@ |