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Crypto code is protected speech – appellate court

Not inexpressive, just because you can't understand it

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Internet Security Threat Report 2014

The Sixth US Circuit Court of Appeals ruled this week that application source code is protected by the First Amendment because it is a means of communication among programmers, the Associated Press reports. The ruling marks the first time a federal appellate court has ruled that source code is protected by the First Amendment to the US Constitution, American Civil Liberties Union (ACLU) Legal Director for Ohio Raymond Vasvari said. He's not quite right: the Ninth US Circuit Court of Appeals ruled in May, also finding that encryption source code is protected by the First Amendment, but who's counting. "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," the wire service quotes Vasvari as saying. The recent ruling opens the way for a lawsuit by Case Western Reserve University Law Professor Peter Junger to be reconsidered in federal court. Junger claims the government violated his First Amendment rights by requiring a license to export cryptographic source code. Junger wanted to publish his encryption code on a Web site to help teach his students, his lawyer, Gino Scarselli, said. Such a posting is defined as an export under current US regulations, and the government required him to apply for a license first. Appeals Judges Boyce Martin, Eric Clay and Herman Weber reversed an earlier ruling against Junger which found the government's license requirement not in violation of the First Amendment. "Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography," the judges wrote. "The [US] Supreme Court has expressed the versatile scope of the First Amendment by labelling as 'unquestionably shielded' the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll," the decision says. "Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programmers." "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 judges concluded. So again the gavel falls on the side of the First Amendment. If no future court challenge should be successful, then the judges' ruling will stand. These fellows were clearly in need, a week or so ago, of a lecture by FBI Director Louis Freeh and US Attorney General Janet Reno on the overriding interests of kidnapped children; but now, we suppose, it's too late for that. ®

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