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September  1997
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U.S. gov't wins a stay in encryption case, may appeal

Boston (September 1, 1997) -- The U.S. Department of Justice has won a small victory in its legal battle with a professor who last week was granted a court order permitting him to publish information about his encryption algorithms on the Internet.

The Justice Department filed a motion asking for a stay of that court order until it appeals the decision, and yesterday Judge Miriam Patel of the Northern District of California Federal Court issued a stay to the order until 5 p.m. on September 8, according to department spokesman Joe Krovisky.

The judge also agreed to issue a subsequent stay to the order that would apply to all parties but the plaintiff in the case, mathematics professor Daniel Bernstein of the University of Illinois.

The Justice Department has 60 days in which to file an appeal, Krovisky said.

Patel's ruling last week found that the U.S. government's export control laws are a prior restraint on speech and therefore violate the First Amendment of the U.S. Constitution. She ordered that Bernstein be able to place documents containing his cryptography algorithms on the World Wide Web for academic discussion and that other parties also be free to discuss his algorithms on the Internet.

Bernstein brought his case against the U.S. Commerce Department, which controls the regulations governing whether encryption technology can be exported. While the ruling is seen as setting a very narrow legal precedent, opponents of the regulations said it may open the door for legal challenges from software vendors that wish to export encryption products.

--Elizabeth Heichler, IDG News Service, Boston Bureau


Novadigm-Marimba lawsuit may delay 'Net protocol

Boston (August 27, 1997) - Novadigm Inc. has fired a warning shot across the bow of a proposed Internet protocol, intending to postpone the proposal's consideration until the conclusion of a patent lawsuit that the company filed against Marimba Inc. earlier this year.

Marimba and several other companies yesterday announced that they have submitted to the World Wide Web Consortium (W3C) a protocol designed to decrease bandwidth demands on the Internet by allowing users to replicate only selected data rather than entire files.

The proposed Distribution and Replication Protocol is an enhancement to HTTP (Hypertext Transfer Protocol). It draws on elements of Marimba's Castanet technology for distributing software across the Internet, backers said.

Novadigm said that, after reviewing the documentation made public in support of the protocol, it has warned the W3C that elements of the DRP may infringe its intellectual property rights. The DRP may use techniques, including those that involve differential indexing, similar to its patented methods.

In March, Novadigm filed a lawsuit against Marimba alleging that Marimba infringed upon its "fractional differencing" patent, issued in December.

Novadigm plans to notify the other companies involved with the protocol proposal of its claims against Marimba, and said it has not yet determined whether they were aware of the lawsuit. Those companies are Netscape Communications Corp., Novell Inc., Sun Microsystems Inc., and @Home Corp.

--Jon Skillings, IDG News Service, Boston Bureau

U.S. ban on encryption export ruled unconstitutional

Boston (August 26, 1997) -- A U.S. judge has ruled that the government's ban on the export of encryption technology is unconstitutional because it violates the right to free speech, the Electronic Frontier Foundation (EFF) said today.

The U.S. Commerce Department, represented by a U.S. Justice Department attorney, is expected to appeal the ruling.

The ruling was the latest in a series of cases involving Daniel Bernstein, a mathematics professor at the University of Illinois, who both as a graduate student and now as a professor has sought to place documents containing cryptography algorithms on the World Wide Web for academic discussion.

In earlier rulings, the court had confirmed that source code should be treated as speech and deserves free-speech protections. In the latest ruling, Judge Miriam Patel of the Northern District of California Federal Court found that the government's export control laws are a prior restraint on speech and are therefore unconstitutional, according to Shari Steele, a staff attorney at the EFF. The foundation has sponsored the litigation by Bernstein and is paying his legal expenses.

The latest case was brought by Bernstein because he sought an injunction to ensure that he could publish material on the Internet without being vulnerable to prosecution, Steele said. The ruling is fairly narrow, she said, and specifically permits Bernstein to publish material about his own encryption algorithm and allows anyone else to publish material about Bernstein's encryption algorithm.

U.S. companies that have been restricted from exporting strong encryption software may use this ruling as a precedent, according to some reports. Software companies in the U.S. object to the restrictions because they fear that they will lose market share overseas if they cannot provide customers with the ability to keep electronic communications secure via encryption.

The U.S. government has continued its policy of banning strong encryption exports, maintaining that it needs to be able to read foreign communications.

--Elizabeth Heichler, IDG News Service, Boston Bureau

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