Slashdot Mirror
More On Encryption Source Code Appeal
ill-logic writes "Here's an article at News.com that gives some more detailed info on the appeals court ruling overturning a case involving a programmer posting source code for his crypto program on the net. The judge ruled that his code is protected under the first amendment. At least there is one non-programmer out there that knows there are benefits in programmers swapping code. "
Even if source code is speech (which I kinda doubt but I haven't formed any definitive opinions yet), how does it relate to export laws?
A document describing top-secret military plans is speech too, but I'm not allowed to give it to a foreign party (and probably not allowed to pass it around within the U.S. too). So how is source code, given that it is free speech, any different from this?
BTW, this is not to say that I am for export restrictions on encryption software. Far from it. I am totally opposed to these laws and I am even registered as an "arms dealer" on that page that lets you ftp encryption software to a source outside the US and then be listed as a known arms dealer, in protest of the laws.
BUT, I think that ruling that source code is free speech and therefore restricting its export is a violation of the 1st amendment is not a good way to go about repealing these laws. The result is good, but the means are completely backwards.
My experience with ITARS is brief. I work at an advanced tehcnology company this is also a defense contractor, but my project is a government contracted sensor for scientific research. There are some foreign partners involved and as a result, I was warned to be careful of what drawings are hanging on the walls and what types of information I discussed during their visits. Similarly, my data is examined before I can forward it to certain countries even when the destination is to a co-worker. Nothing I do is close to being classified.
You may have touched on what I find confusing. You say that transporting a binary is still illegal. Two comments:
You are correct that it is important to have all the information. However, IANAL, so I don't understand the immediate legal consequences, which is why I bring up (or rather Bryan Ischo brought up) the concern in this thread of the general "free speech" interpretation. This seems to me to fly in the face of all other export restrictions regarding information.
~afniv
"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
~afniv
"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
Richard von Weizs
Not trying to be nitpicky (and I'm not really disagreeing with your post) but ...
You can use a computer language to communicate ideas (ie code examples, explaining an algorithm, exam question, etc) but that's not their main purpose. In other words , computer languages can be used to communicate ideas but their main purpose is to instruct a computer (hence "computer" language).
This is probably what they meant by "functional aspect". It's sad that they use this for the stupid crypto laws, but I'm not sure computer languages are free speech. If they are free speech (which I'm not really against,but confused) then other things like hardware diagrams, mathematical formulas, plans for a house, etc should also be considered free speech (they probably are ?).
- sigs are for wimps.
As a practial matter, I'm glad the court ruled the way it did (the dubious precident-setting status of the ninth curcuit not withstanding). I think the U.S. crypto regulations are stupid and reactionary, and any step towards getting rid of them is a good thing.
However, I have to wonder about the whole code == speech thing. I mean, okay, on the one hand, you're talking about a *language*, in which you can express ideas (heck, people write poetry in Perl), but on the other hand, a program is essentially a machine.
I have to think that the process of creating software occupies some middle ground between expression and construction. You're building a machine, but you're building it out of nothing but logic and a set of syntactical rules.
I believe that code should have the same protection as speech, but I don't think that we should necessarily reduce the two to an equivalence.
---Joe Merlino gnupg public key ID: 1E91EBAF
First, this is the Federal Court of Appeals, not the Supreme Court. The government doesn't always listen to the Court of Appeals.
Second, this ruling only protects the transmission of encryption source code, not binaries. Any restrictions on binaries are just as much in force today as they were before the ruling. It does, however, mean you can put source code up on your web or FTP site and expect not to be hassled for it. If you are hassled for it, you can expect to have an easier legal battle with this precident in hand.
----
Open mind, insert foot.
No decision was overturned, it was upheld. That is, Bernstein had won a previous case and the court upheld that ruling in the 9th district court. Professor Junger is the one who lost his case here in the 6th district (http://samsara.law.cwru.edu).
The difference is fairly important because 2 courts making the same ruling adds some credence. This will surely go to the Supreme Court next, where I believe Bernstein will win again.
** Martin
Gah. After several attempts to get the user login to work in lynx, I have given up.
Anyway, I wanted to respond to the questions people have been posting as to whether source code ought to be considered protected, expressive speech.
In short, yes. If you read the opinion, or even the first paragraph of it, you'll see that the primary point it makes is that the export restrictions constitute a prior restraint on scientific expression. This is a crucial point, that not many people seem to have remarked on, and I'm very happy that the court saw how important it is. I've been involved in the scientific community most of my life (my parents are both marine biologists at a major oceanographic research institution), so I have a particular interest in this aspect. Free exchange of scientific ideas is, as anyone who understands the issues will tell you, absolutely essential to scientific progress. We like to talk about how wonderful our culture of openness and sharing of source code and ideas is, and I'm not saying it isn't, but you know what? We didn't come up with it. We borrowed it from the tradition, which has existed as long as anyone has done scientific or mathematical research, of publishing one's results in peer-reviewed journals, of sharing one's information, and of helping other people doing similar projects. Collaboration and sharing of knowledge is one of the most important principles of scientific research, just as it is of the free software community.
Scott Madin, cookieless.
http://www.student.carleton.edu/M/madins/
Pancakes is the better part of valor.
While many are celebrating this ruling due to the crypto export implications, I think real victory is for the deeper issue: is source code speech? While the fight's not over, I'm very encouraged that the appelate court reaffirmed that source code is expressive and is a form of speech (at least within the narrow context of this case).
The Junger case was similar. It involved a law professor who wanted to post crypto source code for his "Computers and the Law" class. A lower court (going against the ruling of the lower court in this case), sided with the government and dismissed the expressive nature of source code due to its functional aspect. They basically said source code wasn't speech. This was, IMHO, a bad bad ruling. I really find it offensive that the court would assert that a language such as C that I spend a large portion of my time reading and writing (often just for fun), isn't speech. I use computer languages to communicate ideas. That's speech. The judge (Gwinn) in the Junger case just didn't "get it." I've read this ruling, and it's obvious that at least some of the judges (or more likely, their aids) do "get it."
Let's just hope that if this goes to the Supreme Court, they're as enlightened.