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Law Professor Sues Federal Government Over Computer Privacy Issues

PRESS RELEASE
August 17, 1996
Federal Civil Rights Action Seeks Injunction Against State Department And National Security Agency

For Immediate Release
Cleveland, Wednesday, August 7, 1996

For More Information Contact:
Raymond Vasvari (216) 522-1925
Gino Scarselli (216) 291-8601

More Information Will Be Available at:
URL: http://samsara.law.cwru.edu

_________________________________________________________________

A Case Western Reserve University law professor filed suit today in
federal court, challenging government regulations which restrict his
ability to teach a course in computer law. Peter Junger, a twenty-five
year veteran of the law school faculty, will file a federal civil
rights action this afternoon in the United States District Court in
Cleveland. The suit names the Department of State and the secretive
National Security Agency, which administer federal regulations
limiting Professor Junger's ability to teach.

The case involves the International Traffic in Arms Regulations, or
ITAR, federal regulations which restrict the export of military
technology. Under the ITAR, cryptographic computer software, which
encodes text to preserve the privacy of messages on the Internet, is
considered a "munition" and subject to strict export control. The
regulations raise significant First Amendment questions by defining
"export" to include discussing technical information about
non-classified software with foreign nationals, such as students
registered for Professor Junger's course.

In recent months, the State Department has sent a series of letters
threatening possible criminal action to a Florida man who posted a
simple cryptographic algorithm to the "sci.crypt" Usenet Newsgroup, an
Internet site popular with cryptography enthusiasts. These and similar
incidents have caused Professor Junger to limit his discussions of
cryptographic material with foreign colleagues, for fear of violating
the ITAR. Penalties for unlicenced disclosure of cryptographic
information are severe: federal law provides ten year prison terms and
One Million Dollar fines for those convicted of violating the Arms
Export Control Act, the legislation under which the ITAR was
promulgated.

Professor Junger, whose class at Case Western Reserve focuses on the
legal aspects of computer use and software development, plans to turn
away any foreign students who register for the course this fall,
largely because the law is uncertain as to what he may teach, and to
whom.

The restrictions at issue are administered by the Department of State,
in cooperation with the ultra-secret National Security Agency, the
organization charged with eavesdropping on foreign governments. Under
the ITAR, Junger may not teach foreign students about even simple
software capable of encoding messages. Such software is vital to
maintaining the privacy of communications and financial transactions
on the Internet, and Junger believes that lawyers need to understand
how it works in order to prepare to practice in an increasingly
technological world.

The information that Junger wishes to disclose is widely available on
the Internet and elsewhere. "It's not as though we are talking about
classified information," explained Gino Scarselli, one of three
lawyers representing Junger in the case. "The material at issue in
this case can be found in any university library, but the regulations
make no exceptions for even the most basic software," Scarselli noted.
The lawsuit does not challenge the government's right to restrict
access to classified information.

Junger is also represented by Raymond Vasvari and Kevin Francis
O'Neill, two Cleveland attorneys with considerable experience in First
Amendment issues. As Vasvari explained, the suit presents important
First Amendment questions about the government's ability to regulate
academic life. "These regulations allow the government to dictate what
a professor may and may not teach, even though the material involved
poses no threat to national security," Vasvari explained.

The suit charges that by requiring Junger to apply for a federal
license to discuss cryptography with foreigners, the government is
violating a well-established First Amendment rule which prohibits the
government from imposing prior restraints on expression without clear,
narrowly drawn standards distinguishing prohibited expression from
permissible speech. The United States Supreme Court has consistently
held that such prior restraints face a heavy burden in court, and that
standardless licencing schemes allowing officials broad discretion in
restriction speech are unconstitutional.

Because computer cryptography is expected to play an important role in
the economic development of the Internet, the case is being closely
watched. Scarselli has worked closely with attorneys affiliated with
the San Francisco based Electronic Frontier Foundation in preparing
the suit, and Junger and his lawyers have been in frequent contact
with John Gilmore, formerly of Sun Microsystems, who has offered his
assistance as a technical advisor in the case.

At issue is not only Junger's right to discuss cryptography with
foreigners, but also his and other's right to publish and distribute
such information both in traditional forms and on the internet.

Professor Junger's suit seeks declaratory and injunctive relief,
prohibiting the government from interfering with his, or any other
person's, discussing non-classified cryptographic information with
foreign persons or from publishing that information. Lawyers for
Junger have moved the court for a preliminary injunction. Junger's
course begins in the fall semester, later this month.

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