Tuesday, December 11, 2007

Source Code May Set Us Free

Or, at least some folks who are putting up a battle against DWI charges in Minnesota. As reported by a local legal blog, a district court judge in Minneapolis is more or less foreshadowing that evidence from intoxilyzer results will be suppressed unless the manufacturer of the machine discloses its source code to the litigants. This has already been the rule for civil proceedings involving intoxilyzers, but this looks to be the first time the rule has impacted criminal proceedings in this state.

Of course, Minnesota is not the only state where this has been brought up in a defense motion to suppress. I understand that to date the manufacturer of this particular device has refused to grant access to the code, although I would welcome corrections to that understanding since I've only learned it through indirect sources.

Regardless of the facts or outcome of the particular battle between the DUI bar and the manufacturer (which in the end is not a battle we're well equipped to analyze other than as it deals with source code), the Cyberspace practitioner should already be well equipped to understand the fundamental pieces of this dispute. The manufacturer is undoubtedly claiming a right to maintain its source as a trade secret, and has so far only allowed its software to be distributed in object code (or lower) format that is not reviewable by human beings. That may well be its right under trade secret law (although we must leave open the possibility of arguments to be made on public policy grounds, or that somehow the manufacturer in this case waived its rights). Some, on the other hand, might argue that a business model based on proprietary code is not a wise one to follow where courts are more and more willing to demand openness. Could this manufacturer find its business model is ultimately a reason for a competitive manufacturer with a non-proprietary business model to step in and take business away? It all remains to be seen of course, and it's an interesting intersection between our world and another one.

No comments: