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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 vortmax on 8/15/2007 1:59:15 PM , Rating: 2
You'd think they could test the actual device that was used on him to be sure it worked properly. As long as it wasn't 'patched' or something since then.

I have no problem with someone trying to prove their innocence, that's their right. I do have a problem with someone trying anything to side-step the responsibility of their actions while many taxpayer $'s are being wasted in the process.


RE: Is he kidding?
By TomZ on 8/15/2007 2:05:41 PM , Rating: 2
Agreed, but taxpayer dollars were wasted mainly because the State was not in control of the information they had rights to, and which they should have anticipated needing in a case like this, especially considering that this type of defense has been used elsewhere prior.


RE: Is he kidding?
By FastLaneTX on 8/15/2007 9:08:26 PM , Rating: 2
There is no way of knowing whether your tests of the same device will produce the same result, because there could be errors in the device that are only triggered under certain conditions. Just look at the studies of the Diebold et al source code in California; they've got all kinds of problems that don't show up in test mode, or even necessarily in elections, unless one does specific things to take advantage of them. What if there's a certain sequence of buttons on the breathalyzer that cause it to boost the reading 0.05 so the cops can put troublemakers in jail even when they're not drunk?


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