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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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Legal mumbo jumbo, again
By rcc on 8/15/2007 12:49:48 PM , Rating: 4
Attorneys burning everyone's time and efforts to get the decision they need. And are paid for.

What the court should have told them was to test the device "as a whole" and confirm it's operation. If they test 100 people that are legally sober, and at least one comes up falsely reported as over the limit, they might have a case. They just have to convince a jury that their client might be "the one".

A review of the source code is actually not all that much help, overall design and calibration (which may include tweaking the firmware)would be more viable, but testing the device as a whole is what counts.




RE: Legal mumbo jumbo, again
By DirthNader on 8/15/2007 12:56:20 PM , Rating: 3
From the article it sounds as if it's CPI that's wasting everyone's time and money by not accepting the fact that the source code was owned by the state as laid out in the terms of commissioning the device.


RE: Legal mumbo jumbo, again
By rcc on 8/15/2007 1:30:08 PM , Rating: 1
quote:
From the article it sounds as if it's CPI that's wasting everyone's time and money by not accepting the fact that the source code was owned by the state as laid out in the terms of commissioning the device.


Perhaps, but, not being privvy to the contracts between the company and the state, we don't know. Although clearly the judge has ruled so.

Still begs the question of what they hope to discover from the code.


RE: Legal mumbo jumbo, again
By Parhel on 8/15/2007 4:49:48 PM , Rating: 2
I would guess that they will look through the source code for run-of-the-mill bugs, and from that try to establish that the entire program is unreliable. Find a few bugs, and an audience of laymen could be easily be convinced that the whole program couldn't be trusted.


RE: Legal mumbo jumbo, again
By rcc on 8/16/2007 11:49:48 AM , Rating: 1
The chances of them finding "run of the mill" bugs in a perusal of the code are slim. The best they could hope for is to find code that allows manipulation of the results.


RE: Legal mumbo jumbo, again
By Rocket321 on 8/15/2007 1:40:45 PM , Rating: 2
Makes me wonder if similar such agreements are made with other software used by the government.....*cough Microsoft *cough.

I suppose they are too well lawyered up to let anything like that slip through though.


RE: Legal mumbo jumbo, again
By TomCorelis on 8/15/2007 1:52:22 PM , Rating: 2
How hard and how damaging would it be for the courts to order the disclosure of the source code but keep it sealed? Let the defendant pay for the analysis.


RE: Legal mumbo jumbo, again
By TomZ on 8/15/2007 1:58:28 PM , Rating: 2
Agreed, and as I said in another post, IMO the State should have anticipated this type of defense and had the information already. The defense attorney is clearly playing against the mistake the State made in not having code-in-hand.


RE: Legal mumbo jumbo, again
By michal1980 on 8/15/2007 2:17:54 PM , Rating: 4
Theres civil lawsuits and that kind of stuff. Most of imho is junk.

Then theres criminal. If the defense goes this way I see no problem...

its probably just delaying the outcome, but the state shouldn't be allowed to hide behind some magic box/code.

---
State in court: This box said his guilty, therefore he must be.

Defendant. Whats this box? hows it work?

State: Thats for us to know, off to prison with you.
---

I hope the above never happens.


RE: Legal mumbo jumbo, again
By GlassHouse69 on 8/15/2007 4:55:49 PM , Rating: 1
there's always some moron on this forum (or many of them) who down-rate an excellent and thoughtful post.

You are correct 100%, yet you got a down-vote.

When technology designed by a group of office people who hate their jobs decides on a felony conviction, something is desperately wrong, aka, evil. Oh, someone will say, "but the testimony of the police as to the visible signs of intoxication is also part of the evidence." Yeah, I trust cops. They have no agenda's are pleasant people. yay.


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