Open Source and Your Legal Rights

A court fight in Florida over the software used in the instruments that detect alcohol in breath could threaten the ability of states and localities to prosecute drunk drivers.

The battle is over the source code of breath analyzers made by CMI Group, a closely held maker of breath-alcohol instruments. Defense lawyers have challenged the use of the device and asked to see the original source code that serves as its computer brain, saying their clients have the right to examine the machine that brings evidence against them.
Last February, a state appeals court in Daytona Beach ruled that Florida had to produce "full information" about the test that establishes the blood-alcohol level of people accused of driving under the influence, or DUI. Otherwise, the court said, the evidence is inadmissible.
"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," the state's Fifth District Court of Appeal wrote.

A court in Seminole County later interpreted the ruling to apply to CMI's source code. As a result, at least 1,000 breath tests have been thrown out of court in the county this year. Last month, a court in Sarasota County said the breath tests used in 156 DUI cases will have to be thrown out if CMI continues to refuse to hand over the source code.
CMI, which is based in Owensboro, Ky., has refused to turn over the code for its Intoxilyzer 5000, saying it is proprietary. "It's a trade secret, and like any company they don't just turn over information for the asking," says Allen Holbrooke, outside attorney for CMI. [WSJ 12-16-2005]

As I see it, this is a huge, broad issue that has been creeping inexorably onto the radar screen: since the constitution grants defendants the right to challenge the evidence against them, it should come as no surprise that DUI defendants -- or rather, the defendant's lawyer -- are going after the technology that nailed them. Since most test and measurement equipment (TME) today has a programmed computer in its bowels, the defendants want to double-check the code of the all-too-human programmer. "Opening the source", as it were.

Now, those country-boy lawyers are no dumbies. They realize that any self-respecting TME manufacturer would want to protect its source code -- especially as open-source Linux replaces proprietary TME operating systems and programming languages. It has become too easy to lift source code from online court documents right into a compiler. So, the lawyers are trying to bluff an acquittal by asserting TME source code evidence as critical to their cases. "Uh, my client is innocent by reason of programming error." In the past, the TME device was treated as a "black box"; it could be externally tested but its entrails could not be dissected. To test a radar gun, for instance, you drive a car with a calibrated speedometer at the radar gun and then trigger a speed measurement. How the gun got the measurement internally is less relevant when the external results match the experimental. Apparently, the law is heading down a different track with programmable TME.

So, besides DUI, look for more creative legal tactics regarding voting machines, ATM fraud, automobile insurance cases -- did you know automobiles now tell police and insurance investigators how fast you were going when the car went off the road? -- medical devices and many other instances. Thousands of legal hours worth. It will be interesting to see how defendants rights are (re)balanced against property rights.