Source Code-Personal Rights vs. Corporate Rights

By John Gideon Information Manager, VotersUnite.Org and VoteTrustUSA.Org
05 November 2005

This week a panel of three judges in Sarasota County, Florida found that a breathalyzer manufacturer, CMI Inc., must turn over its source code to an expert hired by defendants in drunk driving cases. The expert would only be allowed to inspect the code for bugs and he would be under court orders not to divulge any of the code to the public. The manufacturer of the breathalyzer has refused to allow its source code to be reviewed.

In an article in “News Forge” ( http://trends.newsforge.com/trends/05/11/04/2053208.shtml?tid=147 ) Bill Scofield, manager of engineering for CMI Inc., the company who makes the subject breathalyzer, is quoted as stating, “It's a trade secret. There is no reason to release the source code because there are other ways to test its effectiveness." However no other means of testing the source code were offered by CMI.

So, if it is important that the source code used in breathalyzers should be made available for inspection by experts, why shouldn’t the same be true for voting machine source code?

In the NewsForge article, Matt Zimmerman, a staff attorney for the Electronic Frontier Foundation (EFF), said it is just as important for people to know that products like breathalyzers or voting machines work correctly as it is for companies to protect their trade secrets.

The article goes on to quote Mr. Zimmerman, "It's one of the few cases that we've seen recently where a court has come out and said it really is appropriate, if you're going to be making important decisions that affect someone's liberty, then you should be able to understand what's going on with these technologies that are helping make these decisions."

The article continues, “He said that in addition to various fears over losing proprietary advantages, companies may also fear that public examination of software would let the public know "there may be some flaws in the design, in the coding, that otherwise they wouldn't have to reveal."

“"The government is outsourcing a governmental process," Zimmerman said of both e-voting and the breathalyzer questions. "It's not a case where you're alleging that a certain harm has been done to a specific person. You're making the allegation that the technology doesn't do its work quite as well as it could."

“The key to both concerns is the potential for these devices to affect people's liberty and freedom, while the manufacturers do not provide the public with the information to know what is going on, Zimmerman said. Both cases, he said, should tell the government that the public has a right to know how technologies actually work when they have to do with individual liberty.

“Although the e-voting issue, and potentially the breathalyzer issue, have the potential to become political issues because of the implication that government is trying to cover something up or at least not pursue answers vigorously enough, each is a matter of protecting citizens rights -- which in itself can be a political issue.”

In response to a question about whether this court ruling was something that could be used in his lawsuit, Paul Lehto, who has sued Sequoia Elections and Snohomish County, WA.,( http://www.bradblog.com/archives/00001319.htm ) responded, "This Florida ruling is a common sense application of the right of citizens to confront their accusers and cross examine evidence used against them, based on longstanding bedrock principles of due process fairness and the Courts' truth-seeking function. With regard to secret vote counting on corporate hard drives, it is already the case that secret vote counting is grossly illegal and unconstitutional (without any court needing to rule) but unfortunately some people and voting machine vendors in particular will persist until they are ordered by Courts to back off. It's not a close question, though, nor a novel principle of law."

Transparency is important otherwise we will never know for sure how our votes were counted or whether they were really counted at all. And if, like CMI, voting machine vendors refuse to reveal their source code for inspection by our experts then they should not be allowed to use their machines to count our votes.

Information Manager, VotersUnite.org