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< Software and Reputations   The fairytale of Ruby, her magical kingdom, and the mutilation of poor elseif >
Closed source can keep you out of jail
The choice of Closed vs. Open source can keep you out of jail. Florida recently decided that evidence from a Breathalyzer test could not be introduced because the source code was closed. The court found that the lack of source code, denied the accused the right to determine if the machine accurately calculated his Alcohol levels. I found it an extremely interesting issue and I figured others might too.

If you've read my Blog you know I'm a law student and software designer. I'm probably best known for being the co-founder of the Azureus, an open-source bit torrent client. I'd consider myself an open source proponent, but by no means am I an open source zealot, though I think I may be changing. What interested me about this case is the conflict between Open vs. Closed source and it's impact on a humans freedom. No freedom to get a job, freedom to information, but literally the possibility of someone going to jail. This is about a person’s right to confront their accuser. As we've privatized the justice system, we seem to have forgotten that these machines, radar guns, breathalyzers, DNA analysis, etc. are used to convict people of crimes, serious crimes. These people have the right to confront their accusers, but if they're not made of Silicon.
In a normal case a lot of evidence is established by witnesses. Witnesses may have a bias, but they are subject to cross examination and that bias can be exposed to the jury. In the case of a breathalyzer machine, both sides have access to the machine, access to the results, access to the person who administered the test, but neither side has access to the source code. The microchips and code that runs the machine is not available to anyone except the machine's manufacturer. Neither side has access to the source code, so there's no problem, right? No. The Prosecution is relying on this evidence for a conviction, but the Defense has no means of arguing against it. For example:

The prosecution presents evidence to a Jury. They say "we ran a breathalyzer test on Mr. Jones and it showed he had a blood-alcohol level of 0.10." They then explain to the jury that this conclusively proves that Mr. Jones was legally over the limit and should not have been driving his car. Then Mr. Jones stands up and tells the jury, "I wasn't drunk, that machine is lying." Unfortunately, that's all Mr. Jones gets to say, because he can't show anything else. He had been at the bar, he can't deny that. He drove the car, he can't deny that. He was arrested properly; the police followed the proper procedure, no acquittal there. "That damn little machine, that's the liar here! It's making this all up!" That's all the Jury hears from Mr. Jones. We all know a machine doesn't lie; they're just machines, they don't think. We're correct, as far as I know a machine has never lied, but several machines have made mistakes.

As developers know, the average user (read: jury member) thinks a computer is a magical box. They know that things called "bugs" exist, but would never be in something important. Obviously, the bugs would be removed before a piece of hardware was released. So when poor Mr. Jones makes his plea to the Jury, they simply explain it away as crazy talk, this man is only trying to confuse us. The magic box could never lie, no one would ever release something with a flaw in it.

Sadly developers also know, there are numerous examples of when something has gone wrong with a piece of Silicon. Sometimes, really wrong. Cancer patients irradiated to death by a mistaken computer, planes inverting in mid-flight, cars shutting down on the highway, and I think everyone has watched some hand held device randomly reboot at some point in their lives. These machines must go through major testing and use the best tools then right? No.

Most software that resides on a microchip is written in very "low-level" languages. Commonly Assembler is used or if you're fortunate C. In general, these languages are not used by "modern" software developers. I'm in no way saying that they are never used, but they have for the most part been abandoned in major software development projects. These languages were abandoned because they are hard to maintain, difficult to work with, and prone to more bugs. For example, the last time C in a work setting was... never, the last time I used assembler in a work setting was... that's right never. There are many good assembler and C developers about there, but they are getting hard to find and management doesn't always like to pay a premium for the best. Let's look at another example:

The company started with a graduate research, extremely skilled, but he's taken the role as the front man. He explains how the machine is the best at analyzing drunkards. He gets investment. The sales team decides they need him fulltime out their pushing the product and giving speeches at conventions about why his Breathalyzer is the best. He no longer has time to work on the soon to be released product. A younger inexperienced and most importantly cheap developer is hired out of school to work on the micro code for the Breathalyzer. He is the only one working on the machine's code, because all the other resources have been placed into a sales force. He's a good programmer, but there's no one reviewing his work. Sure they test the breathalyzer machine at the annual Christmas party and it shows that a third of the office is legally drunk, a third is sober, and the final third shouldn't be breathing. Must be working then, right?

I know I've worked in companies where the setup was very similar. Reflecting on it, thank god none of my work in those early years was ever used for a criminal conviction. Not sure I'd be comfortable with any of my software being used for a criminal conviction, but that's another story. When I think back at some of the code I produced when I was starting out, I know I made mistakes, I know there were design issues, and I know there were bugs. Is it right to rely on these little machines at a trial? Should we allow private companies to build the machines that decide our fate? The government pays for a lot of the research that fuels these machines, but they don't have access to the source code, should they? I've read the debates on public funds for private ventures, but this is beyond that. This is at the core of what our Constitution stands for, our liberty is truly at issue here, and it's all because of Closed source. I never realized how much of an impact Closed vs. Open source really can have on our lives. I always looked at it as a way to save money, but it really could save lives. One day, we may find ourselves in a court room saying "That damn little machine, that's the liar here!" Sadly, for now that's about all we'll be able to say.

Cheers,
Tyler
posted by Tyler Pitchford in law on Feb 11, 2006 4:15 AM : 7 comments [permalink]
 

Comments

Re: Closed source can keep you out of jail
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Re: Closed source can keep you out of jail
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Re: Closed source can keep you out of jail
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Re: Closed source can keep you out of jail
These languages were abandoned because they are hard to maintain, difficult to work with, and prone to more bugs
Re: Closed source can keep you out of jail
Should we allow private companies to build the machines that decide our fate? The government pays for a lot of the research that fuels these machines, but they don't have access to the source code, should they? I've read the debates on public funds for private ventures, but this is beyond that.
Re: Closed source can keep you out of jail
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