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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 TomZ on 8/15/2007 2:02:36 PM , Rating: 2
Exactly, and also to be clear, I hate drunk drivers as much as the next guy, but we have to be careful to protect our freedoms from government that will almost certainly abuse its power if left unchecked.

RE: Is he kidding?
By omnicronx on 8/15/2007 2:16:59 PM , Rating: 2
I love freedom as much as the next guy, but if this stands its only a starting point of people taking advantage of the system when it comes to any arrest with the main evidence being technology. Whats to stop someone from now saying.
'i was not speeding, the code in the radar gun must be wrong'
It only opens the door to defenses like this, and the courts will have no choice but to start drop cases every time something like this arises, as cases could be drained on for months.

governments should start certifying technologies that are used as main evidence for peoples arrests. There should be a undebatable line of yes or no. Especially with a case like this, when you are usually tested for blood alcohol upon arrest, and again when you are brought to the station.
Either the technology works, or it doesnt, it really is not that hard.

RE: Is he kidding?
By TomZ on 8/15/2007 2:28:06 PM , Rating: 2
No, I disagree. If defenses like this are successful, then it means that the devices are not as accurate as they should be and/or there is not a sufficient system in place to guarantee their accuracy. Therefore, the reaction on the part of the government, police, and prosecutors will be to improve the devices and/or the validation systems. I think you'll agree with me that this is a good outcome, right? The alternative that you suggest, that most DUI prosecutions would fail because of this, seems very, very unlikely.

RE: Is he kidding?
By TomZ on 8/15/2007 2:31:28 PM , Rating: 2
Either the technology works, or it doesnt, it really is not that hard.

Please give me one example of another non-trivial technology product that "either works or doesn't"?

For example, wouldn't you agree that a consumer MP3 player is probably no more complex than a brethalyzer? With no moving parts and all, it should never fail, right? You probably see where I'm going with this...

RE: Is he kidding?
By Gneisenau on 8/15/2007 2:51:28 PM , Rating: 2
True, the analyzer can break, but it can also be sent to a certified lab and tested.

My questions is who on the jury is going to have any idea what the defense is talking about if they start jabbering about source code? How many people here could follow someone's conversation about a C program or Assembly... You would have to think that the odds of everyone here understanding what they were talking about is several orders of Magnitude above that of the general puplic.

RE: Is he kidding?
By TomZ on 8/15/2007 3:02:49 PM , Rating: 2
I think that would be the point in having expert witnesses, e.g., licensed professional engineers with experience in that type of product.

RE: Is he kidding?
By omnicronx on 8/15/2007 3:16:13 PM , Rating: 2
that sounds good in theory, but what makes you think the jury will understand what the expert witnesses / licensed professional engineers are saying? The jury is suppose to take what you are saying into account, but in a real life situation would it actually work out in that way? Its just like the prosecutor saying something pertinent to the case, and then have it objected too and stricken from the record. The jury is not suppose to listen, but it will still linger in the back of their minds. If the jury does not know what the experts are talking about, they will probably use their best judgment to make a decision.

RE: Is he kidding?
By TomZ on 8/15/2007 3:26:07 PM , Rating: 2
I'm not an attorney, but I think it would work something like this. The expert looks at the source code, and the testifies to the jury that yes, there is a flaw which could cause the BAC reading to be off. One purpose of the expert is therefore to interpret the technical situation and give a plain-english conclusion that the jury can understand. Plus of course the expert is under oath and also staking his/her reputation on giving an honest assessment.

RE: Is he kidding?
By Gneisenau on 8/15/2007 3:46:21 PM , Rating: 2
I can agree with that if the proscution doesn't have experts saying it has no bugs.
The problem with experts is when you have 1000 experts say one thing and 5 say another, you only get to bring 1 or 2 each to court. That makes it seem like the experts are split when in fact they are not. Juries should not decide technical matters IMO. They should decide if they guy broke the law or not. Not the accuracy of some device they don't comprehend. The accuracy of the device needs to be handled in another forum.

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