Elections & Trade Secrets

For those not keeping score, the recent federal elections are not completely over. The race for Florida 13, while certified by the Secretary of State, is not yet settled to the satisfaction of the losing party. In this case a Democrat who appears to have lost because many other people who voted Democrat on other races failed to vote in her race.

At the heart of the controversy are fancy touchscreen voting computers, which lack paper-trail verification, and have been the target of sustained criticism from voter rights groups for the past several years.

The Herald Tribute reports that the challenger's motion to see the voting computer source code has been denied. Based on the article, which lacks sufficient legal description for this law school graduate, the judge felt the case as presented was mostly one of "conjecture" and was insufficient to override the trade secret protection of the voting machine manufacturers.

And so we enter the final realm of IP protection. I've spoken before on copyrights, patents, and trademarks... but trade secret just doesn't make it into the news all the often and yet is the single most important form of protection in the computer industry. The idea is simple: if a company has information they produced and they take reasonable steps to keep in secret, then it is consider a "trade secret" and entitled to protection.

The most common situation in which I've encountered this protection is when one tech company sues another and source code is at the heart of the matter. If one company seeks to discover the source code, the other can argue trade secret protection to prevent a competitor from accessing the source, or worse yet, the code entering public knowledge and losing all protection.

But there is a standard remedy which seems relevant to this election case. Known as a protective order, the moving party can request the source code be reviewed by lawyers (and their experts) who are may review the code and determine if their suspicions are correct. The lawyers are required to keep the information from their client. If the code reveals something relevant to the case, they can go to the judge and say "look, this has a direct impact on the case it must be disclosed to the parties." Then the judge can rule on something substantial.

In the present case, trusted experts could look at the code and make a determination on whether votes could have been improperly counted, present that determination to the judge who could make an informed ruling. Instead the judge seems to have bought the manufacturer's claim of software perfection. Mind you, Microsoft has been saying for years that it is impossible to make bug-free software and thus they should not be liable for damages as a result of their bugs.

I hope the Florida Appeals Court thinks about the precedent being set here when legitimate claims of voter fraud are weighed against trade secrets.