FREE SPEACH AND THE INTERNET

Of all the goings-on in cyberspace last year, none attracted more attention from the press than the Communications Decency Act. Still, I cannot help but wonder why so little attention has been given--especially by the traditional defenders of First Amendment rights--to another free speech issue affecting the Internet: the government's efforts to censor the publication of information on making electronic envelopes.

Electronic envelopes may not be as newsworthy as cybersex or bomb recipes, but the press did a weak job covering the economic consequences of the Clinton's efforts to check the proliferation of cryptographic software. These articles about the cost to industry almost always ignored the more important costs--the loss of our privacy and the restraints on the freedom of speech and the freedom of the press--that are the consequences of the Administration's policies.

The media also have paid very little attention to the lawsuits brought by Daniel Bernstein, a professor of computer science; Phil Karn, an author of computer programs; and myself, a professor of law, that challenge the censorship of cryptographic software on the self-evident ground that forbidding us to publish the software is a violation of the freedom of speech and of the press. After all, even if the press wasn't interested in the free speech angle, it's interesting to note that if we win, we will have pro bono saved the software industry millions or billions of dollars. Suits like ours are the only way that these costly regulations can be challenged in the courts. It isn't illegal for the Administration to regulate the software industry into the poorhouse.

Still, the claim that software is protected by the First Amendment doesn't seem to interest the press. But this year, things may be different.

At the end of 1996, the government issued new regulations that transferred the licensing of cryptographic software to the Department of Commerce. These new regulations, though similar in most respects to the old ones issued by the State Department, contain an important concession: The new regulations do not apply to the publication of recipes for making electronic envelopes in traditionally printed books, magazines or newspapers, even though they do apply to the same writings if they are published in electronic form or made available on the Internet.

This means that I can publish my casebook on "Computers and the Law," which deals with the many legal issues involving cryptography, as "hard copy," but cannot make an uncensored version of it available on the Web.

There is an inherent problem here that is going to afflict every magazine and newspaper that publishes an electronic edition. Under the new regulations, there are going to be articles--like this one--that can be published in hard copy but not in electronic form.

Let me give you an example: One of the easiest ways of maintaining some minimal confidentiality of communications is to use a simple substitution cypher, by which each letter in the alphabet is replaced with another letter. Here is a complete computer program, using the Unix utility "tr," that does just that: tr a- mA-Mn-zN-Z n-zN-Za-mA-M. This program instructs a computer to turn the characters A through M into N through Z and vice versa.

When this article is published on the Web, the little program will be replaced with the cryptic word "CENSORED."

You'd think that the media would be interested in this ridiculous infringement of their rights, to say nothing of our rights.

Unfortunately they're not. It's silly, after all, but is it news? "U.S. Government Does Something Silly" isn't the most attention-grabbing headline that I have seen.

But the new regulations contain another provision that may be newsworthy, a provision that transcends silliness. For now it is a crime to "export" (without a license) not only encryption software, but also virus checkers--programs that protect computers against infection by electronic viruses.

It seems that our government doesn't want anti-virus programs to proliferate. Otherwise, the spies and policemen and other terrorists of the world would no longer be able to inject a virus into your computer and erase its hard disk.

Now that is news. Can't you just see the headline:"U.S. and Singapore Plan Virtual Viral Warfare Against the Internet."

Now that is news.

Prof. Junger teaches at Case Western Reserve University Law School in Cleveland and is the plaintiff in a federal suit challenging the constitutionality of export regulations that forbid the publication of cryptographic software.