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"Open government" under fire as government suppliers claim trade secrets

Facing painful accusations of drunk driving, Dale Lee Underdahl of Minnesota challenged the accuracy of the Intoxilyzer 5000EN breathalyzer used against him, and demanded to see the source code used in the device.

The claim launched debates and a lawsuit that escalated all the way to the Minnesota Supreme Court. The device’s manufacturer, CMI, Inc. of Kentucky,claimed the source code was proprietary, copyrighted and refused to comply.  To that end, CMI attempted to block the source code’s release by filing a writ of prohibition, which was denied by the Minnesota Supreme Court, who said the writ is “an extraordinary remedy and is only used in extraordinary cases.”

The State of Minnesota specifically commissioned the Intoxilyzer 5000EN model and “all right, title, and interest in all copyrightable material” created “will be the property of the state,” according to the state’s original bid proposal. Furthermore, the proposal also said CMI must provide the necessary information to “attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence,” which according to CNet, “seems to include source code.”

On July 26, the Minnesota Supreme Court ruled in Underdahl’s favor, assuring the discoverability of the devices source code and affirming his right to its examination. “The problem is, the manufacturer of the thing thinks they can hold it back and not tell anybody how it works. For all we know, it's a random number generator,” said Underdahl’s attorney, Jeffrey Sheridan.

The Minnesota Department of Public Safety has expressed reluctance to forcibly acquire the source code, and according to a department spokesman, is still considering its response. The department thinks a lawsuit is unnecessary as the contract stipulates CMI’s cooperation with court orders.

The “source code defense” has been used in a number of other states with mixed success. Manufacturers, in the interest of guarding their trade secrets, have rigorously fought against court-ordered scrutiny. In one instance, judges in Florida’s Seminole County threw out hundreds of cases involving breath tests because the manufacturer would not disclose their breathalyzer's source code. However, in another instance a group of more than 150 suspects, in Florida’s Sarasota County, were granted access to the machines’ source code, with the judges citing it was “material to their theory of defense in [their] cases.”



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RE: Is he kidding?
By mal1 on 8/15/2007 12:49:06 PM , Rating: 4
This isn't a lawsuit, it's a criminal case. Whatever happened to innocent until proven guilty?


RE: Is he kidding?
By DirthNader on 8/15/2007 12:53:02 PM , Rating: 3
They hate us for our freedumbs.

Amazing how quickly the sheeple bow to the government. Our founders would be disgusted.


RE: Is he kidding?
By Misty Dingos on 8/15/2007 1:21:51 PM , Rating: 4
Freedums and sheeple. You aren't going to copyright those are you? And I agree with you the founding fathers would be baffled, disgusted, and horrified. I think one of them might be heard to say. "My friends fought bleed and died for these weak knee simpletons?"

Give us liberty or give us cameras on every street corner. You can have my freedoms when you pry them from my lawyer’s cold clammy claw, I mean hand. Don’t tread on me! Well unless you have a valid court order.


RE: Is he kidding?
By Christopher1 on 8/16/07, Rating: -1
RE: Is he kidding?
By TomZ on 8/16/2007 2:30:48 PM , Rating: 3
I hope you seek out and receive the help you need.


RE: Is he kidding?
By mal1 on 8/15/2007 12:56:12 PM , Rating: 2
Let me rephrase that. This is a lawsuit stemming from a criminal case, not some frivolous lawsuit from someone trying to make a quick buck. Everyone deserves the right to defend themselves. If a company wants to do business with the public sector, then they need to do things in a transparent way. This is not some top secret weapon critical to national security. Plus is sounds like the state owns the rights to the code.


RE: Is he kidding?
By OddTSi on 8/15/2007 3:14:16 PM , Rating: 2
Why would you need the source code to determine if the device is accurate? As the original poster said, this is just a drunk driver trying to get off through a loophole and a liberal activist judge is obliging him.


RE: Is he kidding?
By TomZ on 8/15/2007 3:22:00 PM , Rating: 1
Pletty clever how you make lots of assumptions and ignore the reality of the situation in order to quickly skip to a conclusion that supports your political viewpoint.

Scroll down a bit, your question's been asked and answered in some of the comments below.

The "liberal activist judge" part is real subtle. :o)


RE: Is he kidding?
By rsmech on 8/15/2007 9:46:13 PM , Rating: 2
I certainly hope I never appear before a judge with such preconceived notions. If any evidence can be used according to the law to prove innocence let it be. In a court of law the defense has it's chance to prove otherwise. The only loophole is the company not providing according to contract what the state owns & them letting him off, not the judge.


RE: Is he kidding?
By 16nm on 8/15/2007 1:09:50 PM , Rating: 3
quote:
Whatever happened to innocent until proven guilty?


Wasn't it amended in the Patriot Act? LOL.


RE: Is he kidding?
By lompocus on 8/15/07, Rating: 0
RE: Is he kidding?
By TomZ on 8/15/2007 1:26:55 PM , Rating: 2
The U.S. also has made a lot of mistakes in its history, so let's not get too carried away with that line of reasoning. I'm also a proud, patriotic American, but I also recognize that we're not perfect.


RE: Is he kidding?
By onelittleindian on 8/15/07, Rating: 0
RE: Is he kidding?
By TomZ on 8/15/2007 2:22:35 PM , Rating: 3
"Better" depends on your value system. For example, to a pacifist, a country with no military or history of any military agression might be considered to have the better record. After all, we all know there is only one nation in history that has used nuclear weapons against innocent civilians. Some would say that action was inherently immoral and militarily unnecessary.


RE: Is he kidding?
By rcc on 8/15/2007 2:49:45 PM , Rating: 1
quote:
"Better" depends on your value system


Indeed it does, he stated his.

Can you provide the name of a country with no military history? Ever?

As far as innocent civilians go, that's another call on your value system. And, leads to a whole 'nother discussion.


RE: Is he kidding?
By TomZ on 8/15/2007 3:04:27 PM , Rating: 2
Yes, I can, but to be fair to the others, I won't try to hijack this thread much more off-topic.


RE: Is he kidding?
By rsmech on 8/15/2007 9:26:44 PM , Rating: 4
quote:
For example, to a pacifist, a country with no military or history of any military agression might be considered
EXTINCT!

Unless a pacifist countries morals weren't so high as to not let a civil & moral nation such as the United States come to defend their freedoms for them.


RE: Is he kidding?
By TomZ on 8/16/2007 2:20:19 PM , Rating: 2
I never said that pure pacifism is practical, did I?


RE: Is he kidding?
By buckao on 8/16/2007 12:16:52 PM , Rating: 2
Dropping bombs on civilians during WWII was standard operating procedure for every country involved. Bomb technology was relatively crude at the time, and bomb-guidance was rudimentary. We didn't have laser-guided smart bombs 60 yrs ago. Add to that the fact that our enemies put military targets right among the civilian population, and you can see it was inevitable that many innocent civilians would be killed. What were we supposed to do, not attack the targets? We were fighting for the survival of the free world. If we hadn't killed all those civilians, we would all likely be slaves to the Nazi's or the Japanese right now.

Oh, and any country that doesn't have a military won't be a country for very long. Someone will come and take them over. It's just how things work in the real world.


RE: Is he kidding?
By TomZ on 8/16/2007 2:28:15 PM , Rating: 2
Except that the target locations for the nuclear bombs used against Japan were not selected on the two cities being military targets at all. In addition, Japan had basically lost in the Pacific already and were being actively attacked by Russia, while Germany had already surrendered months earlier in Europe. Go study your history.


RE: Is he kidding?
By just4U on 8/17/2007 12:38:10 AM , Rating: 2
I don't understand what your saying. According to George W the US and Japan have enjoyed a 150 years of peace. What targeted locations? What's going on here?

(GRIN)


RE: Is he kidding?
By createdAmonster on 8/16/2007 6:25:20 PM , Rating: 2
As far as being slaves to the NAZIs and the Japanese, that is quite a piece of conjecture.
As for the rest, I would agree with you. However the atrocities perpetrated by the different factions have no moral justification; war and morals don't mix. Strategically speaking, they may be sound, but not morally.

People do what they think they have to do, but to give a moral justification for the killing of innocent civilians is preposterous to say the least.
Especially, if people speak of being righteous and and god-fearing.


RE: Is he kidding?
By OrSin on 8/15/2007 3:35:26 PM , Rating: 1
Better record then who? Let run down some of the major flaws.
Genocide of the America Indian
Legalize slavery 70 years after the rest of the world.
Interment camps in WW2
Women could not vote 30-40 years after Europe gave in.
Legal lnyching until 1962.

And these are the big one. We are not better then most we just spin it better.


RE: Is he kidding?
By rsmech on 8/15/2007 10:13:34 PM , Rating: 4
This is off topic, but too absurd to stand.

quote:
Genocide of the America Indian

This so called genocide has been a part of many nations histories. Natural migration throughout history has displace native inhabitants by conquering and or enslaving. Almost every major culture or empire throughout history is guilty of the same. This neither qualifies nor disqualifies us against our equals.

quote:
Legalize slavery 70 years after the rest of the world.


Maybe we had a later history of it, but we certainly didn't have the longest history of it. It's obvious which caused greater suffering. Those who supported it for centuries.

quote:
Interment camps in WW2

At least our ignorance wasn't as brutal as the German, Russian, Japanese, Vietnamese, ect. Who was more civil in their ignorance?

I can't say we are perfect but I think you are the one spinning it. Finish your history studies to get a bigger better picture. There is no perfection in a nations history but you are certainly blind to many other evils in history.


RE: Is he kidding?
By DARGH on 8/15/07, Rating: 0
RE: Is he kidding?
By Darkskypoet on 8/16/2007 8:19:10 PM , Rating: 2
Umm... Sorry.. but your nation played a role in many of those... Hitler broke his face on the Soviets... Also, It was the U.S unwillingness to share the most powerful weapon at the time (arguably of all time) with an Ally (Soviet) that started the Discourse of the cold war... The U.S Also did not bring down the Soviet, the Soviet decided not to be a super power anymore. If anyone brought down the soviet, it was the politburo.

Also... Brits fought and won in 1812, lost to France and the colonies in their war of independence. So once.. sure.. twice? when?

As well, we speak English globally (for now) because the United States was one of the only major nations to not have their economy completely destroyed in WW2. And as such had the economic muscle to revamp the entire global system by rebuilding certain markets so as to not induce a recession in their domestic economy.

Furthermore, English, as much as I like the language, is like 'the borg' it tends to assimilate any word it wants and just simply doesn't stop growing. In the Soviet sphere of influence they managed to push Russian as the language of choice as that was one of the other major (newly) industrialized economies that sprung from WW2.

As china evolves don't be too surprised to see Chinese rise in prevalence on the global stage.

Back on topic; Say all you want that it was established in the founding of your nation, remember that "All men are created equal" was too. So said the slave owners at the time.

Funny thing is, the U.S still does not have equal rights legislation for Women. So... really please try and understand this lack of respect for the coveted written constitution you hold so dear is oft times not quite worth the paper it is written upon.

I too believe your nations founders would be quite pi$$ed off at the current state of events... Even though it has been going on for quite some time.


RE: Is he kidding?
By Slaimus on 8/15/2007 4:00:24 PM , Rating: 3
UaSAbPATRtIaOT Act :)


RE: Is he kidding?
By NaughtyGeek on 8/15/2007 4:29:25 PM , Rating: 2
quote:
Wasn't it amended in the Patriot Act? LOL.


That's the funniest thing I've read in a while. Perhaps there's hope for the sheeple yet. ;)


RE: Is he kidding?
By rcc on 8/15/2007 1:21:43 PM , Rating: 2
He has been tested and found wanting, or drunk.

So the question is, is the procedure and equipment used accurate.

Most of use assume that the breathalyzer is accurate, but who knows. Not that spending time and money analyzing source code is going to help.

Then again, if the conspiracy theorists are correct, perhaps they will find a routine to automatically indicate a "drunken" condition if the operator performs a specific pattern. Usable for potential perps that piss off the gendarmes.


RE: Is he kidding?
By dever on 8/15/2007 2:14:56 PM , Rating: 2
There's probably a few breathalizer Easter Eggs for the younger, more nimble thumbed cops.


RE: Is he kidding?
By cbo on 8/15/2007 1:46:02 PM , Rating: 3
In addition to that one could argue that the machine is an accuser or a witness of sorts. And subject to cross examination and defense scrutiny, including it source code.
Just like an eyewitness ability to recollect event of the night in question.
This thing might just be found to be inaccurate or inconsistent and be deemed in inadmissible like other machinery in a court of law.

Also this guy's lawyer is a beast.


RE: Is he kidding?
By TomZ on 8/15/2007 1:56:07 PM , Rating: 2
quote:
Also this guy's lawyer is a beast.

...and exactly the kind of lawyer you want on your side if you get into trouble! Playing some games is all part of it.


RE: Is he kidding?
By omnicronx on 8/15/07, Rating: 0
RE: Is he kidding?
By TomZ on 8/15/2007 2:13:53 PM , Rating: 2
I don't understand or agree with your unconditional trust in these types of devices. Check out TomCoreolis' post below, which adds some more interesting details.

http://www.dailytech.com/article.aspx?newsid=8397&...

As an engineer myself involved in electronics and software, I see the kinds of mistakes and problems that do slip by from time to time, even with good testing. And if you're going to throw someone in jail based on evidence from a device like this, you'd better be damn sure it's right.

In addition, what's the harm done in letting the defense see the source code? Clearly the guy is not planning to start a breathlyzer-development company. If they don't find a problem, then the case proceeds. If by chance they do, then the case gets thrown out, and the publicity of this case may force some positive process changes for how these devices are developed and/or used. It's all good to me.


RE: Is he kidding?
By omnicronx on 8/15/2007 2:40:46 PM , Rating: 4
you make some extremely valid points. You should have a right to see the sourcecode as there is no harm in doing so.

I work for a pharmaceutical company, and someone at work just informed me of something funny when it comes to reading your blood alcohol level. Heres a some quotes from a site that explains it best.
quote:
Body Temperature: The widely used blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6°F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1°C (1.8°F) results in a 7% higher value in the result since the air in the lungs will contain an artificially higher amount of evaporated alcohol. Therefore, a person with a body temperature of 100.4°F, and with an actual blood alcohol of 0.0935%, will register a value of 0.10% by the breath test. Be careful if you have a cold or the flu.
quote:
Cellular Composition Of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on an average cell volume 47%. Some of this cell volume is tissue, and at 47% cell volume, 81.5% of the blood volume is liquid in which the alcohol is actually dissolved. A person with a lower cell volume will have a falsely elevated blood alcohol level based on a breath test since the amount of alcohol in 2100ml of lung breath will be dissolved in a slightly higher amount of liquid, and hence have a lower concentration. Cell volume values range from 42% to 52% in males, and 37% to 47% in females. This variability will only have a small impact on BAC (ranging from -2% to +5%) so don't rely on it in court.
quote:
The ratio of breath alcohol to blood alcohol is 2100 to 1 (and called the partition ratio), so the alcohol content of 2100 milliliters of exhaled air will be the same as for 1 milliliter of blood. The maths are simple from there and leads to blood alcohol readings expressed as a percentage of alcohol in the blood.The partition ratio can vary between 1700 and 2400 depending upon the individual and local environmental conditions, leading to a breath analysis reporting either a higher or lower calculated blood alchol reading.

with all those variables i would demand the source code too, weird how a few minutes can change your opinion =X


RE: Is he kidding?
By omnicronx on 8/15/2007 2:43:37 PM , Rating: 2
once again though, if his BAC was way over the limit, what are the chances even with these variables that it is wrong.


RE: Is he kidding?
By arazok on 8/15/2007 3:06:27 PM , Rating: 2
I got pulled over for a test leaving a bar once (only had one beer). The cop needed to know how long ago my last drink was, as it could impact the results of the test. Apparently, if you were stone sober, shotgun a single beer and immediately took a test, you might blow over.

I read a newspaper report about a guy who got pulled over for DUI. While waiting for the cop to get the test, he got out and started chugging mouthwash. He blew over, but beat the charge because the Judge said he couldn't prove if it was the mouthwash, or from drinking beforehand.


RE: Is he kidding?
By rcc on 8/15/2007 5:10:50 PM , Rating: 1
Should have fined him for stupidity and obstruction.


RE: Is he kidding?
By dever on 8/15/2007 2:20:31 PM , Rating: 2
You could also put your trust in dna testing... like the mother who had a paternity test for her child and almost lost her kid because she was determined not to be the mother... until after a couple of years it was determined that she was a chimera.


RE: Is he kidding?
By Spyvie on 8/15/2007 3:20:05 PM , Rating: 2
LOL - Let me guess the "chimera" was your x wife?


RE: Is he kidding?
By cbo on 8/15/2007 5:59:15 PM , Rating: 2
CSI fan are we?


RE: Is he kidding?
By FITCamaro on 8/15/2007 2:31:49 PM , Rating: 2
I'm with you. Police don't just pull you over for DUI for the hell of it. They'll come up with another charge if they're gonna do that.

If his measured BAC was extremely close to the legal limit, I think he has the right to question it. If the legal limit is .07 and he was at .12, no.

Personally though I would like to know how they measure your blood alcohol level just from your breath. If I take a swig of rum right before I take the test, I have a feeling I'd register a high BAC. Does that mean I'm drunk though?


RE: Is he kidding?
By SiliconAddict on 8/16/2007 12:55:26 AM , Rating: 3
Um actually they do. You obviously have never run across a sobriety checkpoint before. That being said they are rare in MN. I've only run across one here.


RE: Is he kidding?
By cbo on 8/15/2007 5:53:24 PM , Rating: 2
You have never been in the five borough of NYC during labor day or the fourth. The Police give random testing on those days.


RE: Is he kidding?
By JonnyDough on 8/15/07, Rating: 0
RE: Is he kidding?
By SiliconAddict on 8/16/2007 1:11:17 AM , Rating: 1
Have you ever even READ the constitution? What people consider their "rights" now a days aren't laid out anywhere in those hallowed pages. I mean really...the right to source code goes beyond retarded. What next? The right to listen in on scrambled police communications because its my god given right.
I consider myself a liberal but for god sake there ARE limits. Its called picking your battles. If people want to figh over something get bent out of shape over the Patriot Act. This? This is someone who honestly thinks he wasn't drunk when he was. MN's BAC is .08. It doesn't take much ti hit .08 and you sure don't feel very tipsy when you hit it.

PS- There are breathalyzers that are certified by NHTSA and the US DOT who have characteristics of ±0.01%BAC. This guy should be going after anything its that. .01 could mean the difference between being drunk and not. He's probably not doing this route because its probably been shot down before.


RE: Is he kidding?
By tjr508 on 8/16/2007 4:34:22 PM , Rating: 2
0.01% is the accuracy of the measurement of the air, not of the blood. Conditions such as body temp, composition, etc make it impossible to get any sort of real air to blood translation. Boose on your breath doesn't make you drunk.

The most interesting defense is that if the valve seperating your throat from your stomach isn't closing properly (very very common), then the results can be WAY off.


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