A major breathalyzer vendor is facing increasing pressure to make the source code of its product available for inspection by defendants. I’m pleased to see my home state of Minnesota leading the charge. The Constitution gives you the right to confront your accuser, and if your accuser is 50,000 lines of assembly code, then you have a right to examine that code. And if CMI doesn’t want to release the source code for its products, then it shouldn’t have gone into a business in which its product is the key witness against defendants in criminal cases.
CMI’s argument that releasing the source code would put it at a disadvantage is nonsense. Making the source code available for inspection would not entail licensing the copyright of the code to anyone who wants it. So it’s true that a competitor might somehow get a copy of the source code, but it wouldn’t be able to do anything with it without facing a copyright lawsuit. And just looking at the assembly language isn’t going to be very helpful. Assembly language is notoriously difficult to interpret, and the small amount of insight a competitor might glean from seeing the source code would be outweighed by the risk of a successful copyright or trade secret lawsuit down the road.
Incidentally, all of these points apply with equal force to touchscreen voting machines. Those should be available for public inspection too, although unfortunately there’s probably not an explicit constitutional provision allowing you to confront your election judge.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.