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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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CMI is incorrect
By Grast on 8/15/2007 1:02:24 PM , Rating: 2
Regardless of whether the judge should have allowed this type of defense, the contract which was agreed upon by the state and CMI states very clearly. The states owns all source code and technology associated with the creation of the product.

CMI does not have an ownership rights to the product. The state should compell CMI to release the source code to the state since it is their property.

This is not a case of trade secrets since CMI does not own the code.

This is normal for any contract with local, city, state or federal contracts. The government agency owns the product, source code, and any propietary equipment created during the life of the contract.


RE: CMI is incorrect
By DaveLessnau on 8/15/2007 1:24:06 PM , Rating: 2
I don't even understand how CMI got involved in this at all. As you noted, the State contracted for full ownership of this software. Why don't they have the source code in hand? It should have been handed over to them upon delivery. How does the State expect to maintain the software if they don't have the source code?

RE: CMI is incorrect
By TomZ on 8/15/2007 1:31:07 PM , Rating: 2
In my experience, many times the customer doesn't actually request to receive the source code until they find an actual practical need for it. The most important thing is that they have the rights to the code.

And to answer your question, they probably paid CMI to further maintain the code. After all, if the State could maintain the code themselves (technically or business-wise), they might have been able to develop it for themselves in the first place.

RE: CMI is incorrect
By UNCjigga on 8/15/2007 4:21:24 PM , Rating: 2
Without a signed copy of the source code, how does the govt know whether or not the vendor's changed the code or not? Meaning, wouldn't the govt have to approve/track any changes made to the code by the original vendor or whoever they contract with next?

RE: CMI is incorrect
By rcc on 8/15/2007 1:59:19 PM , Rating: 1
There are many types of contracts that companies can enter into with the government. Not all of which confer partial or full ownership of the end product on the government, or contracting entity.

Disposition of the final product ownership is, or should be, specifically stated in the contract. In general, companies don't sign up for development contracts that leave ownership in the hands of the goverment unless they believe that there is a very limited demand or customer base for the product.

In the one case, the company retains the rights to build, sell, control, etc. the product. In the other, they can get the goverment to foot the entire development bill.

RE: CMI is incorrect
By Scorpion on 8/15/2007 5:51:25 PM , Rating: 2
This goes right along with my view that eVoting machines should all have open source code owned by the government. What proprietary technology could possibly be needed for a voting machine? If it involves the federal voting system then I don't believe the states or the government should be required to buy the machines under the condition that they be completely open sourced. Private voting machines just gives skeptics a forum and creates mistrust in our voting, and that's very dangerous.

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