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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: I imagine the cost of reviewing the source code...
By fic2 on 8/15/2007 3:47:18 PM , Rating: 2
The source code has little to no bearing on the accuracy of the device.

You don't know what you are talking about if you really think this. The source code is a huge part of the accuracy - what assumptions did they make in the source code? See the posting above where he talks about body temperature effecting BA results by a large margin - 7% for a 1C higher body temp.

By TomZ on 8/15/2007 3:49:30 PM , Rating: 2
I agree, and I would add, it is the device's software that calculates the result that is displayed. Therefore, the source code is highly relevant to the accuracy of the result.

By omnicronx on 8/15/2007 4:17:01 PM , Rating: 2
weirdly enough, alcohol can eventually lower your body temperature if you start to sweat.
Increases blood flow to the skin - This causes a person to sweat and look flushed. The sweating causes body heat to be lost, and the person's body temperature may actually fall below normal.
Really makes you wonder why BAC tests are not more like lie detector tests, which can only be used as a reference, and need other proof to accompany this evidence. (even though this would make your BAC lower not higher, it still shows how readings could be inconsistant)

By bldckstark on 8/15/2007 6:20:11 PM , Rating: 2
The breathalayzer is used only for determining just cause for the arrest. After the arrest the suspect usually has to have a blood test to determine the actual BAC. If this is not performed, then the device itself must be proven to be accurate within a reasonable amount, within a reasonable amount of time after it's last calibration. The big point here is that in many states, it actually says "reasonable amount of time betweeen calibrations". This leaves the courts to determine what reasonable is, and that is dangerous.

By Hexxx on 8/16/2007 6:12:14 AM , Rating: 2
If they didn't do a blood test, this guy's going to get off. They are going to find a loophole in the firmware, and as an engineer and developer of firmware for embedded devices I can tell you no code is perfect. It might be extremely accurate, but never perfect. There is always some assumption made that will be valid for almost all cases, but not every single one. Depending on the complexity of the device, to cover every single parameter and condition is almost impossible. They should have done a blood test to prove guilt beyond reasonable doubt.

"If you look at the last five years, if you look at what major innovations have occurred in computing technology, every single one of them came from AMD. Not a single innovation came from Intel." -- AMD CEO Hector Ruiz in 2007

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