Tuesday, March 11, 2008

Breath Machine Source Code Lawsuit in Minnesota

I blogged a few months back about the running controversy about breath testing machines used by police in drinking/driving cases.

The state of Minnesota has recently filed suit against the manufacturer of its breath testing machines.

Apart from the obvious issues over whether a criminal defendant should have a right to see the source code in the machine used to convict him/her, the suit brings out a point I hadn't thought of yet. Apparently, the state is claiming that the source code is owned by the state of Minnesota based on a contract it wrote with this manufacturer some years ago -- And therefore the manufacturer's acts are alleged to be infringement of the state's copyrights! It certainly would not surprise me to find out the contract says exactly what is alleged in the complaint, given the way the typical government contract is drafted (and the typical process whereby the company, desperate to make the sale, goes along with what the state demands). (Editor's note: I have no personal knowledge or stake in this matter!) Thus, we may not only use this new case to develop a policy on disclosure of source code in crime-testing equipment, but also to show us what really happens when those onerous work-for-hire contract terms actually come out of the drawer and get reviewed a few years later!

And, I bet this won't be limited to breath testing machines. For example, most new cars have computers on board that are connected to GPS systems and other position-spotting equipment which can be used to prove where we were (or weren't) or how fast we might have been going, etc. The manufacturers of those computers may be facing this same issue in the near future. I'm sure anybody taking five minutes could come up with a list of many other future battles over the machines that are used to convict us of crimes. (If you're willing, take a shot in the comments below on what you think the next battlegrounds might be! This is not limited to cars and how we drive them by the way. How about the cell phone hanging off of your belt right now?)

Fasten your seat belts.


Serpentine Belts said...

The BCA, the state agency responsible for oversight of Minnesota's breath testing program, complained to the manufacturer of several "oddities" occurring only in the new software. Attorney Charles A. Ramsay exposed a September 2006 email documenting several critical machine malfunctions.

The test also erroneously rejects drivers' attempts to provide a breath sample by elevating the minimum volume requirements to a nearly impossible amount. As a result the driver is charged with the much more severe crime of Test Refusal, which carries a punishment far more severe than driving over the legal limit of .08.

The state continues to permit the bug-riddled software to operate its more than 200 breath test machines. More than 35,000 drivers were given breath tests according to the BCA's 2006 annual report.

Anonymous said...

I have always believed these machines to be a little iffy (full disclosure, 1997 DUI conviction). Once as a minor, I was breathalyzed at a party and blew a .45. According to everything I've ever read that is coma/death range, but it stood in the court.