Lawyers for 150 Floridians accused of drunk driving have asked a court to order the disclosure of the source code for software running in the breathalyzer machines used by police to analyze their blood alcohol level, according to a Tom Sanders story on vunet.
The defendants say they have the right to examine the machines that accused them, and that a meaningful examination requires access to the machines’ software. Prosecutors say the code is a trade secret.
The accused are right that one needs the code to understand fully how the machines work. The machines consist of sensors, a user interface, and control software. The software is the “brain” of the machine, and it is almost certainly involved in the calculations that derive a blood alcohol value from the sensor readings, as well as the display of the calculated value. If the accused have the right to fully examine the machines – and the article says that they do under Florida law – then they should see the source code.
Contrary to the article and some other commentators, this is not a dispute over whether the software should be open source. The accused aren’t seeking to open the software to everybody; they only want it opened to their legal teams.
There are standard practices for handling trade-secret information that must be turned over in court cases. A court will typically establish a protective order, which is a kind of nondisclosure agreement covering secret material that is turned over by one side to the other. The protective order will require parties to keep the information secret and to use it only for purposes related to the court proceedings. Typically the information can be turned over to a limited number of expert analysts who have also signed the protective order. Documents containing secret information are filed under seal, and testimony about secret matters may take place in a closed courtroom.
So this issue is not about open source, but about ensuring fairness for the accused. If they’re going to be accused based on what some machine says, then they ought to be allowed to challenge the accuracy of the machine. And they can’t do that unless they’re allowed to know how the machine works.
You might argue that the machine’s technical manuals convey enough information. Having read many manuals and examined the innards of many software systems, I’m skeptical of such claims. Often, knowing how the maker says a machine works is a poor substitute for knowing how it actually works. If a machine is flawed, it’s likely the maker will either (a) not know about the flaw or (b) be unwilling to admit it exists.
If the article’s description of Florida law is correct, this seems like a pretty easy decision for the court.