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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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has it been "certified"?
By Oregonian2 on 8/15/2007 2:33:38 PM , Rating: 2
Question that comes to mind to me is not evaluation of source code, even that would not validate hardware aspects, what comes to mind is how the test was evaluated. Black box evaluated. Meaning did they test the accuracy of the box to verify what it was designed and sold to do and to what accuracy has it been shown to provide. If it has been "certified" to be accurate and the units have their periodic "calibration/test" done and documented (as all measuring devices are supposed to go through) then the defendant is IMO "toast" without regard to the software unless a special-case can be found. If they didn't evaluate the units and/or don't test each unit periodically (with records available) then I think the prosecution should be toast as well as those who maintain the system. My opinion anyway. Basic measurement system procedures.

RE: has it been "certified"?
By JonnyDough on 8/15/2007 9:04:55 PM , Rating: 1
I know right? It's not as if someone is going to hack the breathalyser test on scene and go off driving drunk. Does anyone know what kind of test they have a test for marijuana? (I'm not a pothead, just concerned about all the potheads out driving around)

RE: has it been "certified"?
By Oregonian2 on 8/16/2007 1:39:10 PM , Rating: 2
No, has to do with the unit being used and being accurate -- not going out of calibration due to age and being tossed around.

RE: has it been "certified"?
By omnicronx on 8/16/2007 2:19:23 PM , Rating: 2
Does anyone know what kind of test they have a test for marijuana?
There isnt one, in order for an officer to even do anything, you or your car has to physically smell like dope, even then the Police usually only have the right to search your car for illegal materials. Other than that you have to be dumb enough to tell the officer you are high, which would mean you admitted to driving under the influence of an illegal substance

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