Do Trade Secrets Hinder Verifiable Elections? (Duh)

Slate Magazine posted an article this week, which in sum and substance suggests that trade secret law makes it impossible to independently verify that voting machines are working correctly.  In a short, we say, “Really, and is this a recent revelation?”

Of course, those who have followed the TrustTheVote Project know that we’ve been suggesting this in so many words for years.  I appreciate that author David Levine refers to elections technology as “critical infrastructure.”  We’ve been suggesting the concept of “critical democracy infrastructure” for years.

To be sure, I’m gratified to see this article appear, particularly as we head to what appears to be the closest presidential election since 2000.  The article is totally worth a read, but here is an excerpt worth highlighting from Levine’s essay:

The risk of the theft (known in trade secret parlance as misappropriation) of trade secrets—generally defined as information that derives economic value from not being known by competitors, like the formula for Coca-Cola—is a serious issue. But should the “special sauce” found in voting machines really be treated the same way as Coca-Cola’s recipe? Do we want the source code that tells the machine how to register, count, and tabulate votes to be a trade secret such that the public cannot verify that an election has been conducted accurately and fairly without resorting to (ironically) paper verification? Can we trust the private vendors when they assure us that the votes will be assigned to the right candidate and won’t be double-counted or simply disappear, and that the machines can’t be hacked?

Well, we all know (as he concludes) that all of the above have either been demonstrated to be a risk or have actually transpired.  The challenge is that the otherwise legitimate use of trade secret law ensures that the public has no way to independently verify that voting machinery is properly functioning, as was discussed in this Scientific American article from last January (also cited by Levine.)

Of course, what Levine is apparently not aware of (probably our bad) is that there is an alternative approach on the horizon,  regardless of whether the government ever determines a way to “change the rules” for commercial vendors of proprietary voting technology with regard to ensuring independent verifiability.

As a recovering IP lawyer, I’ll add one more thing we’ve discussed within the TrustTheVote Project and the Foundation for years: this is a reason that patents — including business method patents — are arguably helpful.  Patents are about disclosure and publication, trade secrets are, be definition, not.  Of course, to be sure, a patent alone would not be sufficient because within the intricacies of a patent prosecution there is an allowance that only requires partial disclosure of software source code.  Of course, “partial disclosure” must meet a test of sufficiency for one “reasonably skilled in the art” to “independently produce the subject matter of the invention.”  And therein lies the wonderful mushy grounds on which to argue a host of issues if put to the test.  But ironically, the intention of partial code disclosure is to protect trade secrets while still facilitating a patent prosecution.

That aside, I also note that in the face of all the nonsense floating about in the blogosphere and other mainstream media whether about charges of Romney’s ownership interest in voting machinery companies being a pathway to steal an election or suggesting a Soros-Spanish based voting technology company’s conspiracy to deliver tampered tallies, Levine’s article is a breath of fresh air deserving the attention ridiculously lavished on these latest urban myths.

Strap in… T-12 days.  I fear a nail biter from all view points.

GAM|out