Crypto back in court

A Silicon Valley man being investigated for posting software that uses strong encryption on his Web site will have to testify before a grand jury next week, after testimony scheduled for today was delayed.

Charles Booher is being probed for making his SecureOffice software available on the Internet without an export license, which is required under U.S. regulations for selling strong crypto products outside the United States and Canada.

Booher had gone to San Jose, California, to testify before a federal grand jury today, but not enough grand jurors showed up. He will have to return next week.

Booher had been subpoenaed to provide records and testify about his security plug-in that uses strong encryption and could be downloaded over the Net from outside North America. The subpoena is posted on his Web site.

"I'm willing to turn over everything I have, but I want to discuss the source code [before giving it up]," Booher said today. "[The government] could start making their own versions of SecureOffice."

The subpoena required him to turn over source code and object code for the software itself as well as a variety of records, including financial documents, covering the program's sale and distribution both online and off.

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Booher said no one has purchased the program, which he described as freeware or trialware, so complying with the demand for financial records will be simple.

The grand jury subpoena follows an investigation this spring by an arm of the Commerce Department, as reported in May by CNET News.com.

But Booher said he has "no complaints about the way the government has dealt with me," although his wife is concerned.

His father, a retired attorney from Nevada, is representing Booher, but the elder Booher knows little about computers, Booher said.

"I can see the government's concerns," Booher said. "I'm not militant on this subject--I'm a guy who writes software. I wanted to write software and see if people could use and like it. I like to build things, and this was an interesting engineering challenge."

He also predicted that government efforts to control strong encryption ultimately will fail.

In the spring, Booher said he was frustrated that civil liberties and privacy organizations that want to free up the export of strong encryption haven't offered to help him. He said today that he is no longer frustrated by that, though the groups still have not stepped forward.

Booher, who distributes SecureOffice as Sync Systems, wrote the program while recovering from his third bout with cancer.

"Sync Systems is basically me and a program I put together that nobody's paid attention to so far except for the [U.S.] export administration," Booher said in May. "I've got a regular 9 to 5 job. I do disk drive testers for a living. Crypto is just sort of like a hobby for me."

Rich Gray, a San Jose attorney, said Booher could benefit from being in the same federal court district where a judge has decided that encryption software is protected by the First Amendment.

But ultimately Gray doesn't expect that ruling to stand up. He argued that because encryption software can be patented, it cannot be protected as free speech. Instead, it is an invention, which means it can be regulated.

A Commerce Department spokeswoman declined to comment on the case, citing department policy on cases coming before the grand jury.

Anthony West of the U.S. Attorney's office in San Jose, who is named on the subpoena as handling the case, declined to comment as well.

U.S. laws generally require government approval to distribute outside the United States encryption technology that is stronger than 56 bits, except to financial institutions.