[2924] in cryptography@c2.net mail archive
Gwin: "All but unintelligible"
daemon@ATHENA.MIT.EDU (Ernest Hua)
Wed Jul 8 13:36:30 1998
From: Ernest Hua <Hua@teralogic-inc.com>
To: "'cypherpunks@algebra.com'" <cypherpunks@algebra.com>,
"'cryptography@c2.net'" <cryptography@c2.net>
Cc: Ernest Hua <Hua@teralogic-inc.com>
Date: Wed, 8 Jul 1998 10:20:36 -0700
(See quote from the Junger decision below ...)
1. The computer performs encryption, not the software. The CPU is
capable of basic operations (add, multiply, truncate, etc.), just as the
cook is capable of basic operations (mix, heat, knead, etc.). The
software instructs the computer on how to do it (e.g. add a to b,
multiply b and c, truncate y, etc.) just as a recipe instructs the cook
on how to do it (mix sugar with flour, heat water to a boil, knead
dough, etc.). The source code is at least as expressive and as
functional a recipe. I just don't understand which dark hole Gwin
pulled his logic from.
2. That some large numbers of people find source code
unintelligible does not make it less expressive. The fact that I don't
GET operas or works of fringe composers do not make those works less
expressive. The fact that a work is written in Hebrew or Taiwanese does
not make it less expressive. E=mc^2 is pretty darn obscure to a lot of
people. Is any textbook with this equation now non-expressive? Again,
I just don't understand where Gwin gets his reasoning.
I just can't believe that Gwin's reasoning can pass muster on appeal.
Ern
----
[SNIP]
Furthermore, the court in Bernstein I misunderstood the significance of
source code's functionality. Source code is "purely functional," 922 F.
Supp. at 1435, in a way that the Bernstein Court's examples of
instructions, manuals, and recipes are not. Unlike instructions, a
manual, or a recipe, source code actually performs the function it
describes. While a recipe provides instructions to a cook, source code
is a device, like embedded circuitry in a telephone, that actually does
the function of encryption.
While finding that encryption source code is rarely expressive, in
limited circumstances it may communicate ideas. Although it is all but
unintelligible to most people, trained computer programmers can read and
write in source code. Moreover, people such as Plaintiff Junger can
reveal source code to exchange information and ideas about cryptography.
Therefore, the Court finds that exporting source code is conduct that
can occasionally have communicative elements. Nevertheless, merely
because conduct is occasionally expressive, does not necessarily extend
First Amendment protection to it. As the Supreme Court has observed,
"[i]t is possible to find some kernel of expression in almost every
activity-for example, walking down the street or meeting one's friends
at the shopping mall--but such a kernel is not sufficient to bring the
activity within the protection of the First Amendment." City of Dallas
v. Stanglin, 490 U.S. 19, 25 (1989).14
[SNIP]
