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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 12:56:12 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.

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser

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