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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 JonnyDough on 8/15/2007 9:22:50 PM , Rating: 0
It makes me happy to see Americans standing up for their constitutional rights. Sometimes I think that American's are ignorant and asleep while being stripped of freedoms and robbed. We still pay WAY too f'n much in taxes [around 50% taxation when it's all said and done (don't forget we taxed in many ways, not just income tax)(more than 3X the taxation our forefathers fought Great Britain over starting with the Boston Tea Party) and we ought to be overthrowing our government for it. Although like complete morons we're allowing ourselves to be robbed, at least we haven't forgotten what freedom is.

RE: Is he kidding?
By SiliconAddict on 8/16/2007 1:11:17 AM , Rating: 1
Have you ever even READ the constitution? What people consider their "rights" now a days aren't laid out anywhere in those hallowed pages. I mean really...the right to source code goes beyond retarded. What next? The right to listen in on scrambled police communications because its my god given right.
I consider myself a liberal but for god sake there ARE limits. Its called picking your battles. If people want to figh over something get bent out of shape over the Patriot Act. This? This is someone who honestly thinks he wasn't drunk when he was. MN's BAC is .08. It doesn't take much ti hit .08 and you sure don't feel very tipsy when you hit it.

PS- There are breathalyzers that are certified by NHTSA and the US DOT who have characteristics of ±0.01%BAC. This guy should be going after anything its that. .01 could mean the difference between being drunk and not. He's probably not doing this route because its probably been shot down before.

RE: Is he kidding?
By tjr508 on 8/16/2007 4:34:22 PM , Rating: 2
0.01% is the accuracy of the measurement of the air, not of the blood. Conditions such as body temp, composition, etc make it impossible to get any sort of real air to blood translation. Boose on your breath doesn't make you drunk.

The most interesting defense is that if the valve seperating your throat from your stomach isn't closing properly (very very common), then the results can be WAY off.

"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein

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