Trade Secrets Trump Election Transparency

by on December 30, 2006 · 12 comments

I don’t know about the legal merits, but as a policy matter, this seems like a terrible decision:

A judge ruled Friday that congressional aspirant Christine Jennings has no right to examine the programming source code that runs the electronic voting machines at the center of a disputed Southwest Florida congressional race.

Circuit Judge William Gary ruled that Jennings’ arguments about the possibility of lost votes were “conjecture,” and didn’t warrant overriding the trade secrets of the voting machine company.

Democrats in Congress meanwhile, said they’d allow Republican Vern Buchanan to take the seat next Thursday, but with a warning that the inquiry wasn’t over and that his hold on it could be temporary.

The state has certified Buchanan the winner of the District 13 race by a scant 369 votes.

The ruling Friday from Judge Gary prevents for now the Jennings camp from being able to use the programming code to try to show voting machines used in Sarasota County malfunctioned. Jennings claims that an unusually large number of undervotes _ ballots that didn’t show a vote _ recorded in the race implies the machines lost the votes.

The source code to a voting machine in a DRE election is analogous to the voting procedures manual in a traditional paper election. It would clearly be absurd to run an election in which votes were counted in secret and no one was allowed to know what rules were used to determine the winner. Transparency demands that anyone be permitted to inspect the voting procedures to make sure they are fair and accurate.

Precisely the same principle applies here. The source code is the vote-counting procedure. It’s absurd to ask Jennings to prove there was a problem with the voting process before she can be given access to the details of how the election was conducted. Obviously her allegations of miscounting are only “conjecture” at this point, because she hasn’t been given the opportunity to examine the process by which the votes were counted.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I hope that everyone had a great Christmas or Hanukah and that we will have a tremendous new year.

    Besides the obvious logical flaw exposed by Tim there is the issue of the company’s so-called “trade secrets”. If the code was developed as a result of a government contract, the code belongs in the public domain. Given that scenario, Jennings, as well as anyone else, should have a right to examine the code.

    I would also advocate that any government that considers buying the software (even if it was not developed at government expense) should insist (before the software is bought) that the code be available for public scrutiny.

  • http://www.blogger.com/profile/14019452 Steve R.

    I hope that everyone had a great Christmas or Hanukah and that we will have a tremendous new year.

    Besides the obvious logical flaw exposed by Tim there is the issue of the company’s so-called “trade secrets”. If the code was developed as a result of a government contract, the code belongs in the public domain. Given that scenario, Jennings, as well as anyone else, should have a right to examine the code.

    I would also advocate that any government that considers buying the software (even if it was not developed at government expense) should insist (before the software is bought) that the code be available for public scrutiny.

  • http://enigmafoundry.wordpress.com eee_eff

    Yes, another example of corporate property rights trumping such outmoded concepts such as freedom of the press or free and fair elections.

    It is part of a treend, and the moniker of ‘Corporate Fascism’ is entirely deserved.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Yes, another example of corporate property rights trumping such outmoded concepts such as freedom of the press or free and fair elections.

    It is part of a treend, and the moniker of ‘Corporate Fascism’ is entirely deserved.

  • http://mcgath.blogspot.com Gary McGath

    Steve R. writes: “If the code was developed as a result of a government contract, the code belongs in the public domain.” This is simply wrong. There is no legal doctrine that says that all computer code developed under government contract is in the public domain.

    enigma_foundry writes: “Yes, another example of corporate property rights trumping such outmoded concepts such as freedom of the press or free and fair elections.” Freedom of the press is itself an instance of those “corporate property rights” you despise. It does not imply the right to be given information.

    Governments should not be using voting machines based on secret code. But when they do it, they (and we) are stuck with the consequences of that decision.

    Whether there are any good solutions is questionable. Even if Jennings is a highly qualified software engineer and gets the code, that isn’t likely to do her much good, as program bugs are very hard to spot just by reading the code. The problem is with not having an independent audit trail built into the system.

  • http://mcgath.blogspot.com Gary McGath

    Steve R. writes: “If the code was developed as a result of a government contract, the code belongs in the public domain.” This is simply wrong. There is no legal doctrine that says that all computer code developed under government contract is in the public domain.

    enigma_foundry writes: “Yes, another example of corporate property rights trumping such outmoded concepts such as freedom of the press or free and fair elections.” Freedom of the press is itself an instance of those “corporate property rights” you despise. It does not imply the right to be given information.

    Governments should not be using voting machines based on secret code. But when they do it, they (and we) are stuck with the consequences of that decision.

    Whether there are any good solutions is questionable. Even if Jennings is a highly qualified software engineer and gets the code, that isn’t likely to do her much good, as program bugs are very hard to spot just by reading the code. The problem is with not having an independent audit trail built into the system.

  • http://www.spunk.org/texts/humour/sp000621.txt Monty Python

    Dennis: Look, strange women lying on their backs in ponds handing out swords … that’s no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.

    Arthur: Be quiet!

    Dennis: You can’t expect to wield supreme executive power just ’cause some watery tart threw a sword at you!

    Arthur: Shut up!

    Dennis: I mean, if I went around saying I was an Emperor because some moistened bint had lobbed a scimitar at me, people would put me away!

    Arthur: (Grabbing him by the collar) Shut up, will you. Shut up!

    Dennis: Ah! NOW … we see the violence inherent in the system.

    Arthur: Shut up!

  • http://www.spunk.org/texts/humour/sp000621.txt Monty Python

    Dennis: Look, strange women lying on their backs in ponds handing out swords … that’s no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.

    Arthur: Be quiet!

    Dennis: You can’t expect to wield supreme executive power just ’cause some watery tart threw a sword at you!

    Arthur: Shut up!

    Dennis: I mean, if I went around saying I was an Emperor because some moistened bint had lobbed a scimitar at me, people would put me away!

    Arthur: (Grabbing him by the collar) Shut up, will you. Shut up!

    Dennis: Ah! NOW … we see the violence inherent in the system.

    Arthur: Shut up!

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Gary: The government is an entity, just like a private corporation and is entitled to the same rights. If their is no legal doctrine that computer code developed under a government contract is in the public domain, then by logical extension there is NO legal doctrine that places the code in the ownership of the company either. In that case there can be no such thing as a “trade secret”.

    To use another example. I hire an architect to design a house. I pay him for that work and the drawings. Does the architect now have the right to sell those drawings and keep all the money collected for himself?

  • http://www.blogger.com/profile/14019452 Steve R.

    Gary: The government is an entity, just like a private corporation and is entitled to the same rights. If their is no legal doctrine that computer code developed under a government contract is in the public domain, then by logical extension there is NO legal doctrine that places the code in the ownership of the company either. In that case there can be no such thing as a “trade secret”.

    To use another example. I hire an architect to design a house. I pay him for that work and the drawings. Does the architect now have the right to sell those drawings and keep all the money collected for himself?

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A machine cannot be a voting machine unless its workings (and source code) are visible and available for scrutiny by the public.

    All other such machines are not voting machines and do not convey votes. Anything output from them must be discounted (fit at most for polls).

    The judge is right.

    Just because you use a non-transparent tool for a job that requires a transparent one, doesn’t grant you a right to the toolmaker’s trade secrets. However, there could be some redress if the tool was unfit for its described purpose.

    One must doubt the competence of the party who procured the machine – whether they have a complete grasp of democracy and its requirements for transparency.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A machine cannot be a voting machine unless its workings (and source code) are visible and available for scrutiny by the public.

    All other such machines are not voting machines and do not convey votes. Anything output from them must be discounted (fit at most for polls).

    The judge is right.

    Just because you use a non-transparent tool for a job that requires a transparent one, doesn’t grant you a right to the toolmaker’s trade secrets. However, there could be some redress if the tool was unfit for its described purpose.

    One must doubt the competence of the party who procured the machine – whether they have a complete grasp of democracy and its requirements for transparency.

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