Booher wants to have his source code patented and does not plan under any circumstances to share it with anyone, including Commerce Department officials. Citing Commerce Department policy, officials said they would neither confirm the subpoena nor comment on any ongoing investigation. The Department of Commerce maintains that the overseas export of encryption must be as tightly regulated as the flow of munitions. Before any strong encryption product, including Booher's, can be made available to anybody outside of the United States, the seller must get permission from the Commerce Department. The agency has granted permission only in special circumstances and often includes conditions for the inclusion of a key recovery capability in the encryption code.
Key recovery gives law enforcement officials the ability to unlock any piece of scrambled data.
In the weeks prior to the hearing, Booher was considering certain bargaining chips as an alternative to turning over the software's source code. His wife, Theresa Bromar, said he would consider building key recovery into SecureOffice if the Commerce Department were willing to work out a compromise. Earlier this month, Booher said he believed that part of what led to the Commerce investigation of his software was the ease with which data could be encrypted. If charged for illegal export of encryption software, Booher plans to fight. Booher's case could signal another benchmark in the evolution of US encryption policy.