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The Florida Breathalyzer/Source Code Cases
Saturday, November 05 2005 @ 01:50 PM EST

What a difference it makes to have a good lawyer.

You may have heard about the DUI cases in Florida, where the defense attorneys for 150 defendants asked to see the breathalyzer source code, and won. If you have ever been arrested for DUI, and I hope you haven't been, did your lawyer think of that?

This is an interesting situation the breathalyzer company is in. They are asserting trade secret, and they have just said they will not turn over the source code, despite the judge's order:

The maker of the Intoxilyzer 5000 breathalyzer, CMI Inc., has informed prosecutors involved in several DUI cases in Sarasota County, Florida, that it will not assist prosecutors in complying with a judicial order [PDF] to allow an expert hired by defense attorneys to review the source code for software used in the device.

On November 2, a three-judge panel ordered prosecutors to hand over the source code within 15 days, or by November 17, in conjunction with a state law that says defendants have a right to all information about the operation of computerized devices used as evidence in court, including manuals, troubleshooting guides and, potentially, source code for software.

If this case interests you, here's an interview with attorney Robert Harrison, interviewed before the court ruled in his favor. One snip:

It is important to note that all of the significant functions of the breath instrument is software, not hardware. The hardware only measures how much light is absorbed in a sample chamber for three specific wave lengths; these measurements are obtained about 5 times per second for 7 to 10 seconds. The software then analyzes this data and makes a conversion to blood alcohol level on many assumptions, some scientifically sound, others which reasonable scientists would debate.

Without knowing why the computer program is saying my client committed a crime, it is difficult to effectively challenge this evidence. The rhetorical question posed by one of the Judges to the prosecution last Friday sums it up well: "Doesn't the due process rights of the accused take precedent over a manufacturer's claim of trade secret?"

The court ruled that it does. Let's look at the details.

The defense is based on a specific Florida law that requires that only approved breath testing machines be used and that when a defendant requests it, full information concerning the test be made available. The court relied on a prior case, Muldowny, which held:

" . . . when a [defendant ] risks the loss of driving privileges or perhaps freedom based upon the use and operation of a particular machine, full information includes operating manuals, maintenance manuals and schematics in order to determine whether the machine actually used to determine the extent of a defendant's intoxication is the same unmodified model that was approved pursuant to statutory procedures."

Your state may not have a similar law. The State of Florida's position was that if source code is confidential, it isn't under obligation to produce it, since the code isn't within its direct or even indirect possession. The judge disagreed:

The Muldowny court did not address the issue of production of source code. We find no reason to differentiate between the importance of producing the schematics and the manuals of the Intoxilyzer and production of the EPROM source code (i.e. the software that is in effect, instructing the intoxilyzer how to operate). . . .

...the government's argument that the State of Florida does not have in its possession the source code does not provide a legal basis for non-disclosure.

Oddly, the state did not bother to argue lack of materiality or irreparable harm, or suggest alternatives, which no doubt helped the court to rule in favor of the defendants. Also, there is a Florida statute, Section 90.506, which provides that trade secret privilege is not allowed where it would "otherwise work injustice", although the court can take appropriate measures to protect the privilege. In this case protections were ordered, so that only the defense expert would be allowed to view the code, for example, and he couldn't retain or copy it (judges still don't get that computers inevitably do copy, that the expert can't view the materials, assuming they are digital, without copying, but that's another story), under pain of sanctions, such as criminal contempt of court.

The defense's expert testified that one component of the machines, the EPROM's (erasable programmable read only memory chips), appeared to show some change, but without source, he couldn't ascertain whether the change was substantial or inconsequential. The manual for the Intoxilyzer says that the EPROM has a label covering the top of the chip and warns that under no circumstances should the label be removed, because removing the label "will expose the chip to ultra-violet light and as a result will cause the chip to be erased." I'm sure I don't have to connect the dots for you on that.

The judges got it too, and the panel ruled that testing the accuracy of the machines required testing by an outside entity, not the manufacturer:

When the law expressly provides that Defendants are entitled to full information about the instrument that is used to establish their guilt, such full information logically includes making the instrument available for open inspection. Full information should include the software that runs the instrument. To construe the statute otherwise, is tantamount to granting the state authority to use confidential information (i.e. the software code) to establish the guilt of a criminal defendant without disclosing the information to the defendant for inspection and possible impeachment.

So, how do the lawyers know to raise issues like this? They do research. There were earlier cases where cases were dismissed over the same issue in Florida, cases listed in the order. The brilliance shown here is in putting 150 defendants together. No doubt that made it financially possible for the lawyers to afford the time for research and to hire an expert, by pooling resources. But the real heroes in this story are the judges, who showed the courage to stand for constitutional rights even for unpopular defendants. At least in Florida, you can't be convicted based on secret testimony from a mystery machine you can't challenge. State governments wouldn't face this issue if they could use Open Source breathalyzer machines, now that I think of it.

Where can you find more information? Findlaw is one place. Google can be your friend. Or go to a local law library, if there is one you can access, or buy time on Lexis and the like, and look up keywords, as in "DUI" "breathalyzer" and so forth, in legal encyclopedias and your state's statutes books, and read all the cases you find where the facts are similar to the facts of interest to you. Note that you need a lawyer, in my opinion, any time you are involved with an actual legal case. I wouldn't set foot in a courtroom without one, personally, any more than I'd operate on myself after reading a book on surgery, and I hope you never do either.


  


The Florida Breathalyzer/Source Code Cases | 444 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Saturday, November 05 2005 @ 01:58 PM EST
Correction here please

[ Reply to This | # ]

Off Topic Go Here
Authored by: Anonymous on Saturday, November 05 2005 @ 01:59 PM EST
And Off Topics to Go here please!

[ Reply to This | # ]

Shortcut
Authored by: markus on Saturday, November 05 2005 @ 02:17 PM EST

Over here in Switzerland Police forces are using breath analyzers. The result of the breath analyzer is used to decide if the suspect driver is sent to the hospital to take a blood sample. Only the blood sample can be ground to an indiction for drunk driving. The result of the breath analyser is not sufficient for an indiction as the devices are known to have a limited precision.

It looks to me that the US Police is looking for a (too) easy shortcut to avoid the hassle of getting a blood sample and analysis.

Markus

---
Markus Baertschi, Switzerland

[ Reply to This | # ]

EPROMs
Authored by: MathFox on Saturday, November 05 2005 @ 02:18 PM EST
EPROMs are computer chips that are used to hold the program that operates the
computer. The instructions in the EPROM will be read and executed by the
processor in the system. The processor is not able to write data to the EPROM.
It is possible to load a program in an EPROM with a special (programmer) device.
EPROMs can be erased with UV light and be reprogrammed a few times before they
wear out.

The problem in this case is that the instructions (program) in the EPROM tells
the breathaliser how to compute the alcohol content in the blood of the suspect.
Programming errors may cause the wrong suspects to be convicted. If a new
program is loaded in the EPROM, the certification of the apparatus is void.
(There are rumours that this has happened.)

---
When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

  • EPROMs - Authored by: cmc on Saturday, November 05 2005 @ 02:28 PM EST
  • EPROMs - Authored by: Anonymous on Saturday, November 05 2005 @ 02:59 PM EST
    • EPROMs - Authored by: Anonymous on Saturday, November 05 2005 @ 03:08 PM EST
    • EPROMs - Authored by: MathFox on Saturday, November 05 2005 @ 03:18 PM EST
    • EPROMs - Authored by: J.F. on Saturday, November 05 2005 @ 06:32 PM EST
      • So do I. - Authored by: Anonymous on Saturday, November 05 2005 @ 09:17 PM EST
        • So do I. - Authored by: J.F. on Saturday, November 05 2005 @ 10:58 PM EST
    • EPROMs - Authored by: Anonymous on Sunday, November 06 2005 @ 07:03 AM EST
  • EPROMs - Authored by: Anonymous on Saturday, November 05 2005 @ 03:46 PM EST
    • WOM - Authored by: snorpus on Saturday, November 05 2005 @ 05:25 PM EST
    • EPROMs - Authored by: Anonymous on Saturday, November 05 2005 @ 06:26 PM EST
    • A nit: OTPs - Authored by: Anonymous on Saturday, November 05 2005 @ 11:37 PM EST
      • A nit: OTPs - Authored by: Anonymous on Sunday, November 06 2005 @ 03:31 AM EST
      • No! - Authored by: tiger99 on Sunday, November 06 2005 @ 10:05 AM EST
        • Question - Authored by: Anonymous on Sunday, November 06 2005 @ 01:45 PM EST
        • No! - Authored by: Anonymous on Tuesday, November 08 2005 @ 10:39 AM EST
  • EPROMs - Authored by: Anonymous on Saturday, November 05 2005 @ 03:47 PM EST
    • EPROMs - Authored by: Anonymous on Saturday, November 05 2005 @ 10:53 PM EST
      • Not that simple. - Authored by: Anonymous on Saturday, November 05 2005 @ 11:15 PM EST
    • EPROMs - Authored by: Anonymous on Sunday, November 06 2005 @ 12:57 AM EST
      • EPROMs - Authored by: MadScientist on Sunday, November 06 2005 @ 09:42 AM EST
        • EPROMs - Authored by: tiger99 on Sunday, November 06 2005 @ 10:12 AM EST
          • EPROMs - Authored by: Anonymous on Monday, November 07 2005 @ 07:18 PM EST
  • EPROMs - Authored by: Anonymous on Sunday, November 06 2005 @ 03:52 PM EST
Refusal to follow a judicial order
Authored by: Anonymous on Saturday, November 05 2005 @ 02:19 PM EST
Is it possible that CMI could be held in contempt of court ?

Craig

[ Reply to This | # ]

Consequences for the manufacturer
Authored by: cmc on Saturday, November 05 2005 @ 02:22 PM EST
Assuming that the manufacturer of this breathalyzer holds true to their word and
refuses to let an expert review their source code, what are the possible
consequences for them? Removal of their breathalyzers from use in Florida?
Contempt of court charge?

cmc

[ Reply to This | # ]

Corrections here please
Authored by: DeepBlue on Saturday, November 05 2005 @ 02:22 PM EST
Please do not use the anonymous thread.

---
All that matters is whether they can show ownership, they haven't and they
can't, or whether they can show substantial similarity, they haven't and they
can't.

[ Reply to This | # ]

Off Topic here please
Authored by: DeepBlue on Saturday, November 05 2005 @ 02:23 PM EST
Please do not use the anonymous thread.

---
All that matters is whether they can show ownership, they haven't and they
can't, or whether they can show substantial similarity, they haven't and they
can't.

[ Reply to This | # ]

I find it hard to feel sympathy ...
Authored by: Anonymous on Saturday, November 05 2005 @ 02:39 PM EST
for a bunch of drunk drivers who are trying hard to find soem way to weasel pout
of what they have done.

Drunken drivers kill hundred, nay, thousands, of innocent people every year. I'm
prepared to believe that the machine might be in error, by a few percent. So
what? There was a real simple way to avoid this in the first place and that was
to stay sober.

It is quite possible, even probable that a number of these fine upstanding
citizens are not only charged with DUI, but also some related offence, most
likely involving injury, quite possibly involving death.

If the driver who killed your child was now trying to weasel out of what he had
coming to him (or at least part of it) with the aid of some sharp-suited lawyer,
would you welcome the course of events we see unfolding here?

Theres justice, and there is weasel worded lawyers with sharp suits and slippery
tongues ... they may well be able to clear your name, but it isn't always in the
name of justice.

[ Reply to This | # ]

The Difference
Authored by: JochenW on Saturday, November 05 2005 @ 02:41 PM EST
"Doesn't the due process rights of the accused take precedent over a
manufacturer's claim of trade secret?"

Well spoken. However, I really wonder what the same judge has to say about the
happenings in Guantanamo or the secret camps?

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: blacklight on Saturday, November 05 2005 @ 03:04 PM EST
CMI Inc. has at least a moral obligation to disclose the source code of its
breath analyzer to the law enforcement agencies so that independent evaluations
can be made as to its reliability - or lack of it. The stakes are high since
people may go to jail, have heavy financial judgments assessed against them and
lose their driving license, partially on the evidence of the breath analyzer
test results. The public transportation system in almost all US states is
anemic, and the loss of a driving license almost guarantees that its former
holder is unemployable.

CMI can persist in refusing to have the source code of its breath analyzer
reviewed. However, the law enforcement agencies should make the disclosure of
the source code a baseline requirement in their next purchasing cycle. As long
as CMI refuses to let the source code of its breath analyzer, the law
enforcement agencies and the courts should treat the CMI's breath analyzer as a
party toy rather than a tool of law enforcement.



---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

I'm interested in the implications for electronic voting machines
Authored by: Kosh Nanarek on Saturday, November 05 2005 @ 03:16 PM EST
We had a situation here in GA where Diebold, the manufacturer of our voting
machines, installed a series of software patches just before an election. The
problem with this is that state law requires the machines to be certified after

any modification is made, including software patches. Because Diebold is
claiming the software is proprietary, they refuse to divulge what the patches
did, and the machines cannot be evaluated by independent researchers for
their accuracy.

I think as a society we trust too much in technology without asking any
questions about how (and how well) it works. Breathalyzers, black box voting
machines, medical equipment -- it all amounts to the same thing. We're
giving blind faith acceptance to the accuracy and dependability of all these
critical devices.

---
"And so, it begins."

[ Reply to This | # ]

Mobile Speed Cameras in the UK.
Authored by: Anonymous on Saturday, November 05 2005 @ 03:23 PM EST

Are being used as a basis for prosecution.

The device is aimed at the chosen vehicle and the operator must manually track the vehicle as the speed reading is taken.

The devices are claimed to be tolerant of horizontal movement along the side of the vehicle as the operator scans to follow it.

This effect is called "slippage".

Mobile Speed Cameras

I saw a TV program the other day where out of approx 30 test on a vehicle travelling at a known and controlled speed something like 5 or 6 readings were in error(the error is quite dramatic when it happens).

Both the police and the manufacturer say they are using "technology" which will detect any slip effect from a moving vehicle.

Pull the other one :)

These people must allow their "technology" to be tested because in the case of the speed cameras it is clearly not infallible and has some failings.

The obvious question to ask at this moment is how big a percentage of mistaken speed prosecutions the Home Office feels is acceptible.

PS. I haven't been "done for speeding".

Brian S.

[ Reply to This | # ]

As an attorney who does traffic...
Authored by: webster on Saturday, November 05 2005 @ 04:17 PM EST
1. I might give this a try in the jurisdictions where I practice. I can charge
extra for it. In many places mandatory days in jail are becoming fashionable,
particularly with higher scores. This may save a few guys a few days in jail.

2. This will make absolutely no difference on the street. An officer arrests
someone for Driving Under the Influence (DUI). He then takes him to the
breathalyzer to try and get evidence of Driving While Intoxicated - Per Se
(DWI). He does this because it is much easier to convict someone of DWI. The
crime is defined as driving when your blood alcohol content will read .08 or
higher in most places within a reasonable time of driving. This is often
referred to as "legal intoxication" because some folks with a high
tolerance for alcohol, or not particularly egregious circumstances are not very
drunk. They might try and fight and win the case against DUI whereas they have
no defense against DWI. The reason the DWI laws exist is because DUI's are hard
to prove. The Judge and juries say "There but for the grace of god go I.
Not guilty." [Or my favorite legal conclusion: NGBDDIA. Not Guilty,
But Don't Do It Again.] With DWI there is no defense except legal legerdemain
such as asking for the source code of the breathilyzer. It will work once.
Once the science is confirmed or adjusted, people won't reinvent the wheel or
test the Constitution with every case.

3. Some driver's refuse to take the test, or try and fake it. [They fake it by
putting the instrument to their mouth and blowing out their ear.] They are
still charged with DUI and their refusal can be used against them very
persuasively. The refusal might also be separate grounds for a suspension.
Some people blow low, less than the legal limit, usually .08. They are still
charged but the low test score makes the proof harder. Sometimes there is a
statutory presumption that a score of .04 or below is presumed sober and the
Government must overcome it. It is easy to overcome with evidence of vomiting
and befouling one's pants. It is harder to overcome with only an admission of a
glass of wine, and a traffic stop for a tail light out, or a sobriety
checkpoint.

4. There are protective orders for the code. There is no reason not to give up
the source code. The refusal of the breathalyzer company is extremely
suspicious. They are risking having their machines eliminated from court and
police use. They may be using "borrowed" code. They fear the expert
will test its provenance. Maybe it is virulent GPL code which is OK since they
are only putting it in their own machines. Their stonewalling is inexplicable.
If they don't come up with the code soon, police everywhere are going to have to
unplug their machines and just use the FPT's, nystagmus, and lay opinion to
show DUI. [FPT: field performance test such as finger to nose, one leg stand,
heel to toe walking, and alphabet.

5. It will get even more interesting if people who have already been convicted
go back into court to overturn their old conviction based on the breathalyzer
code if 1) they never turn the source code over, or 2) they turn it over and it
shows that the machine has been imprecise or miscalculating.

6. If it turns out that the code works fine but that the code is stolen, the
Intoxylizer Company will be submitting themselves to a takeover or massive
settlement with the real owners of the code. Maybe there is a software alcohol
patent somewhere?

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

It's even more complicated then this
Authored by: Anonymous on Saturday, November 05 2005 @ 04:46 PM EST
PJ, i am sorry, but there is an error in the ruling by the court that you copied
uncommented. The errorous statement is:

"...and production of the EPROM source code..."

EPROMS don't hold source code, they hold machine code, i.e. code that is
executed by the CPU of the computer. To have source code in an EPROM the CPU
would have to be capable of compiling or interpreting it in real time or when
you turn the computer on. Except a special JAVA-CPU i am not aware of any CPU
that can do this.

Why is this important?

Because you have to compile the source code to a machine code with a compiler.
If you change the compiler (for example to a new version) the machine code will
change even if you don't change anything in the sourcecode. Not much, but it
will, at least in most cases, otherwise why would you have a new version of the
compiler in the first place?

With a breathalyser (BA) it gets even a little more complicated. The BA has a
small, slow CPU that would not be good for compiling, testing, editing,
recompiling and so forth. You do it on a bigger computer, for example a PC, and
then use a so called crosscompiler to convert the source code to machine code
for the smaller CPU. You may even use an emulator to test the machine code on
the PC, but i doubt that in this case (too hardware dependend).

So, what you would need to convince me or any other computer buff is:

1. The source code in the correct version
2. The crosscompiler in the correct version
3. A byte-by-byte match that shows the source code really produces the machine
code that was used during use of the BA.

Linux_Inside

[ Reply to This | # ]

Safety Critical Software
Authored by: Paul Johnson on Saturday, November 05 2005 @ 04:50 PM EST
It seems to me that software that provides evidence of this sort should be
treated under the same rules as safety critical software (i.e. software that
could cause injury or death if it fails). I've worked on safety critical
software, and the rules vary from careful to stringent.

Putting someone in prison, depriving them of the ability to drive and giving
them a criminal record all seem to me to be "injury". The law
generally treats this with due severity: framing an innocent person is a serious
crime, and those who turn out to have been wrongfully imprisoned are generally
awarded compensation comparable to that awarded for physical injury.

In the UK, IIRC, computer generated evidence usually just needs to be associated
with expert testimony that the machine was operating normally at the time the
evidence was generated. This is normally reasonable, given that the law was
framed with things like fraud in mind. It would hardly be reasonable to refuse
to admit computerised accounts in a fraud trial on the grounds that the
accounting software was not written in accordance with IEC-61509.

But on the other hand a device which is regularly used to convict people carries
a much higher degree of risk because its use for criminal prosecution is
routine rather than exceptional. Hence it would make sense to apply higher
degrees of scrutiny to its development.

What do you think?

Paul.

---
These ideas and others like them can be had for $0.02 each from your friendly
local idealist.

[ Reply to This | # ]

It's not Rocket Science, so....
Authored by: davcefai on Saturday, November 05 2005 @ 05:23 PM EST
Calculating the concentration of a compound from an instrument reading is
definitely not Rocket Science. You take the reading, plug it into an equation
and there's your answer.

The code to do this cannot be difficult to write and hardly qualifies as
"the results of thousands of man hours blah blah blah".

The refusal of the company to reveal the code, especially under the conditions
imposed by the court seems to me to be an acknowledgement that they have
something to hide. Maybe their constants are carefully selected to favour the
police. After all the police are their customers and I would imagine that the
coppers will buy the kit which will give them the most convictions.

Other important factors are how stable the instruments are, how often they are
calibrated and what calibration method is used. Or does the software fudge this?
It's easy to do a "self calibration" but this still needs to be backed
up regularly by "real" calibrations with the compound of interest.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: grundy on Saturday, November 05 2005 @ 05:25 PM EST

The last time I designed anything with an EPROM in it was at least 20 years ago
and the only reason for using the version with the window for erasure was that
the contents were expected to change. The erasing window is not glass but is
quartz and is expensive!

I find it highly suspicious that a "qualified" engineer would design,
much less certify, any device with its software in an EPROM.

-- an Electroncs Engineer (retired).

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: cmcnabb on Saturday, November 05 2005 @ 05:25 PM EST

In a related story, a Fairfax county Virginia judge has been dismissing cases based on breathalyzer readings because the "legal limit" law in Virginia presumes guilt at a reading of 0.8 or greater, which is a direct violation of the "innocent until proven guilty" part of the 5th amendment of the US Consitution, and requires the defendant to prove himself innocent.

---
"When governments fear the people, there is liberty. When the people fear the government, there is tyranny." - Thomas Jefferson

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Anonymous on Saturday, November 05 2005 @ 05:28 PM EST
Very interesting. So now any law enforcement toys from radar speed guns to gas
chromatagraphs will have their embedded code under review.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Greebo on Saturday, November 05 2005 @ 05:33 PM EST
I think we're missing something in all this.

These machines are claibrated on a regular basis. There are standard samples to compare them against to ensure that they are measuring breath alcohol accurately.

As long as the machine in question was calibrated/checked before and after the sample that was taken i see no reason at all to question the inner workings of the machine if the two calibration/check readings match. This also applies to one posters comments about speed cameras.

All equipment that performs these kinds of measurements should be treated as black boxes and the calibration/check data used to ensure that the reading being measured is accurate.

The EEPROM, source code, etc are all loopholes that these guys are using to try and weasel out of a DUI charge.

Nowhere have i seen it mentioned if this machine was checked by the manufacturer for malfunctions. Anyone know if this was done?

I found websters comment interesting....

1. I might give this a try in the jurisdictions where I practice. I can charge extra for it. In many places mandatory days in jail are becoming fashionable, particularly with higher scores. This may save a few guys a few days in jail.

Is this the reason these lawyers are doing this? Not because they think these guys are innocent and therefore pulling out all the stops to prove it, but because it brings them a bit more cash?!

Greebo

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

Stupid people...
Authored by: kberrien on Saturday, November 05 2005 @ 05:34 PM EST
I'm amazed that in reviewing this machine, no one at the state level thought of
this as a possiblity. These people should be professionals in their fields, and
one reviewing machines should be aware of the possible legal challanges any
forensic technology might face.

I do IT in a police department. We had some post beta technology once that in
specific instances would suggest a warrant for a person that wasn't accurate.
Me, as an IT professionel (not PD or legal) had enough sense to recommended it
benching until it was fixed. I could just imagine the lawsuits for erroneous
arrest!

[ Reply to This | # ]

What is Copying?
Authored by: Anonymous on Saturday, November 05 2005 @ 05:37 PM EST
PJ says (parenthetically) "Judges still don't get that computers inevitably
do copy, that the expert can't view the materials, assuming they are digital,
without copying, but that's another story."

I have long thought that this is in large part what's wrong with our current
copyright system: Using or viewing something in the way it's intended in
considered copying, because the machinery of necessity internally makes a copy
during the viewing.

When you look at plain old paper, your eyes make a copy of the text on your
retinas, but this isn't considered copying. Why should it be considered copying
when a computer makes an equally copy in its RAM, in its video card, and on your
screen?

As near as I can tell, there's no reason to treat the execution of a program as
making a copy -- doing so merely allows publishers to extend copyright to areas
where it doesn't belong. ("I sold you a copy, but I only license you to
make further copies (run the software) in ways that I specify.")

Comments?

[ Reply to This | # ]

Horrendous problems
Authored by: Anonymous on Saturday, November 05 2005 @ 05:40 PM EST
I am an electronics engineer. I have seen an EPROM which had been mounted close
to a fluorescent tube for a few months with its window uncovered. The result was
that a single bit of data changed state, but even that change was temperature
dependent.

It is common to use electrically alterable ROM for calibration purposes. These
can and do fail in use. It is wise to include error checking for critical data.

A certain company made weighing equipment. It performed tests witnessed by the
appropriate authorities to demonstrate its accuracy. What those authorities did
not know was that the equipment was connected to a radio modem and the user
could recalibrate the equipment at any time remotely.

Look at very expensive space programs; some have ended in disaster because of
programming errors even though there was an enormous financial incentive to get
it right.

I have seen equipment tested at high temperature in a climatic cabinet, exactly
to the customers spcification, and being passed and put into service, despite
the fact that the air-flow inside the cabinet was actually cooling the
equipment, not heating it.

Even the Space Shuttle seems to have been flown on a wing and a prayer.

All I can say about the breathalyzer is: it was made by the lowest bidder, or,
even more ominous - it wasn't.

Alan(UK)

[ Reply to This | # ]

Converse Rule - No Lawyer
Authored by: webster on Saturday, November 05 2005 @ 05:59 PM EST
"Note that you need a lawyer, in my opinion, any time you are involved with
an actual legal case."

Remember in criminal and traffic courts they can't do anything to you unless you
have a lawyer. So if you go to court without one, the judge has to explain
everything or find that you have waived a lawyer. They will inevitably give you
time to get a lawyer. The judge will ask you about it and you will say "I
didn't know I needed one for a little charge like this."

The judge will say "Indeed you do, I could sent you to jail." You
will then get a delay until after your next few paydays so that you can hire an
attorney. Remember the lesson of the SCO case: Delay means "total
victory" that day.

Maybe the next time when you return to Court the Police Officer won't show and
the case will be dismissed. You lawyer will take the credit.

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

New Zealand Situation
Authored by: PM on Saturday, November 05 2005 @ 06:37 PM EST
A New Zealand Appeal Court found against the defendant in a similar case. The
defence lawyer asked for the manual for the breath tester and was refused on
commercial sensitivity grounds. Breath testers, speed traps and cameras are
checked out by the Government's scientific agency (whose impartiality is
regarded by all as being above reproach to ensure accuracy.

There are further safeguards, the accused must be given an opportunity to seek
telephone advice from a lawyer before the test, and is at liberty to require a
blood test. The alcohol content has to be well over with the breath test before
it can be used as evidence, with the police being entitled to ask for a blood
sample where the breath test is slightly over.

I personally hope that when the police buy new gear, they will make transparency
one of the requirements.

[ Reply to This | # ]

You need a lawyer any time you are involved with an actual legal case.
Authored by: AllParadox on Saturday, November 05 2005 @ 08:50 PM EST
"Note that you need a lawyer, in my opinion, any time you are involved with
an actual legal case. I wouldn't set foot in a courtroom without one,
personally, any more than I'd operate on myself after reading a book on surgery,
and I hope you never do either."

Please don't take it just from PJ, either.

I have tried to represent myself in the past. Lincoln said it best: "The
man who represents himself has a fool for a client." I am now sadder, and
wiser. Now, to echo PJ, I won't set foot in a courtroom without my own
attorney, either.

With luck, Groklaw, and the comments of LawGrokkers will allow you to better
understand your attorney and the process.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: blacklight on Saturday, November 05 2005 @ 08:51 PM EST
As a trained chemical engineer, I can say that an instrument - any instrument,
is only as reliable as its design (it had best be rock solid and idiot-proof),
the production process that mass-manufactured it (remember the quality of
American cars in the early 80's?), its operator (there are plenty of idiots out
there that don't calibrate their bathroom scales), and the conditions under
which it was used (if these conditions fall outside of the design parameters,
anything is possible).

The problem with using a law enforcement tool as a black box is that no one
knows under what conditions the tool fails or gives inaccurate readings. The
findings from any scientific experiment are only as reliable as the
instrumentation that was used.


---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Anonymous on Saturday, November 05 2005 @ 08:54 PM EST
<<<
judges still don't get that computers inevitably do copy,
that the expert can't view the materials, assuming
>>>

There are two concepts of copying when it comes to
computer and computer programs.

1. You make a copy like you do with a piece of papor when
you place it on a copy machine. Running the program doed
not in and of itsefk make a copy.

2. You make a copy when a program run by loading it into
memory. Thus to run a program you must copy it.

Modst normal people wo not recognize 2 as copying a
program as a duplicate was not made. It is this that the
judge is refering to. So on that bases it is not this
judge that doesn't get it. It is the judges that think ome
produces a duplicate of the original, ie 1, by running the
program who simply do not get it.

Depending where you are and which judge either 1 or 2 is
incorrect.

[ Reply to This | # ]

  • All irrelevant - Authored by: Anonymous on Monday, November 07 2005 @ 09:04 PM EST
Give lawyers the raw data and be done with it
Authored by: Anonymous on Saturday, November 05 2005 @ 09:12 PM EST
Here's a simple solution that should make everybody happy:

Give the defense team the raw light-detection data.

Let them hire experts who will testify that this data pattern does not indicate
intoxication.

Then the prosecution can hire experts to say that it does. These experts can be
from the company that made the breathalizer or be independent.

The breathalizer company gets to keep its trade secrets.
The defense gets to argue its case.
The prosecution has a chance of winning if its experts prevail.


What's that you say? The raw data isn't available? Sounds like someone in the
state of Florida didn't do a good job of writing the requirements before they
bought these particular breathalizers.

[ Reply to This | # ]

By the way....
Authored by: webster on Sunday, November 06 2005 @ 01:51 AM EST
1. I believe these Intoxilyzer 500 machines have the capability of saving a
capsule with the actual breath sample taken to gather evidence against any
driver. I am not aware that anyone uses this capability. It would be very
expensive to encapsulate your breath, label it, store it, and get it to court
however many times it may be needed in case it is needed in court.
Imagine some lawyer demanding that the sample be kept so that it could
be checked by a defense expert. As it is now, the police just keep the paper
test readouts as evidence of the tests. Putting the burden on them to keep the
samples too would create opportunities for prosecutorial missteps.

2. The samples used to calibrate the machines are changed periodically. I
wonder how they are calibrated. There must be some alternative machine that has
a fail-safe calibration
to produce samples with which to measure and certify the machines. There is a
margin within which they must read the sample. For example to test an .10
sample the machine would have to read between .095 and .105. I forget the
actual numbers.

3. DWI cases are hard to win especially if you have no right to a jury trial.
You usually don't contest them unless you have a repeat offender who knows he is
going to jail whether he pleads or goes to trial. Desperation gives rise to
desperate tactics such as asking for source code or original samples or machine
manuals.

4. Arresting someone for drunk driving is a specialized field. Many officers
can't do it. It takes special training, science, technical knowledge and
machines, paperwork, multiple agencies [DMV, police, courts]. I have seen
people arrested for traffic offenses with numerous charges. But there in the
paperwork it will say the officer also concluded he was under the influence,
but there was no traffic officer available to book the DUI/DWI charges. This is
why some jurisdictions have a specdialtraffic branch which is always abvailable
to book someone for drunk driving.

5. Many generalized and specialized police forces have turned their attention
to anti-terror and security. They are no longer allowed to chase down the
street after an obviously drunk driver. When that bomb goes off in front of
that building, they are supposed to be there.

6. There is an instrument they use at roadblocks that detects alcohol in the
air of the car that you have been breathing out. I believe it is like a light
that gives a color clue.

7. There is as much drunk driving out there as the police want to harvest.
They have other things to do. I know arrests are down from the eighies and
nineties. Thought they make special efforts, police take summer vacations and
long weekends too.

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

  • By the way.... - Authored by: blacklight on Sunday, November 06 2005 @ 02:19 PM EST
  • #2 - Authored by: Anonymous on Monday, November 07 2005 @ 11:28 AM EST
New Tack - Merchantability, Warranties and the Law
Authored by: sproggit on Sunday, November 06 2005 @ 05:54 AM EST
Several threads here - apologies if my thoughts wander slightly...

The case that PJ highlights here brings with it a new dimension for us to
consider. If anyone has taken the time to read, for example, the Microsoft End
User License Agreement [and please understand, I use Microsoft here as an
illustration only, since most readers will be familiar with Microsoft as a
company], then they will know that it contains whole paragraphs of escape
clauses. Words to the effect of "this software is provided without any
warranty as to merchantability or suitability for purpose, either expressed or
implied" appear early on. The Agreement basically excuses Microsoft of any
responsibility in the event that their software malfunctions and as a result of
that malfunction you suffer some form of harm [reputational, financial, even
physical].

So this introduces an interesting paradox.

Let's suppose that a prosecution tries to secure a conviction based primarily
upon evidence collected and/or processed via a computer system or computer
network.

When such a case gets to court, a prosecution office [particularly when that
prosecutor is the State, the Federal Government, the Crown [in the UK], etc] may
well offer up this evidence as proof of guilt.

Except that such evidence has been collected by a computer system that comes
with a warranty that basically excuses the author of the software used from any
legal liability.

So now we introduce Habeus Corpus - innocent until proven guilty.

If you are a defense lawyer charged with protecting your client's interests,
what is to stop you from challinging the validity of the information used to
bring prosecution? Nothing... The question becomes one of burden of proof,
surely?

Perhaps there are a few people reading this who are thinking, "Yes,
but..." So if you are one of them, let's try and convert this analogy into
a case where instead of software generating evidence for the prosecution, we
have a witness giving testimony for the prosection.

Consider how that might work.

The prosecution might open with, "So, Mr Witness, can you please tell us
about the incident in question?"

The witness replies, "Yes, sir. I observed the defendant commiting this
crime."

Then the defense lawyer cross-examines.

"So, Mr Witness, about the incident in question. Your statement to the
court is quite detailed and thorough. You make a number of assertions. I'd like
to ask you, though, where were you standing, to observe the crime as it was
committed?"

"I can't say."

"Indeed. And how did you determine that what you observed was in fact a
crime? Exactly what method did you use?"

"I can't say."

"Just so. One final question. Are you aware of the charge of perjury, and
that any falsification of testimony that you bring in this court can in fact
result in charges being brought against you in future?"

"Actually, you're wrong. Because of my Witness Warranty, I have a bona-fide
Get Out Of Jail Free Card, right here. Thanks to my Warranty, I am absolved of
any responsibility to substantially or materially prove the validity of the
evidence I have just given, even though the law requires you to act on my
evidence as though it is the truth, the whole truth, and nothing but the
truth."


OK, so I'm being deliberately melodramatic here to make a point.

It's interesting, though, isn't it, when you take the aspects of the breath test
device [the source of evidence being used in a case] and apply to that evidence
the same kind of tests that one would apply to a living, breathing witness.
Suddenly everything starts to look a little odd.




[ Reply to This | # ]

"Approved Machines"
Authored by: Anonymous on Sunday, November 06 2005 @ 09:02 AM EST

Interesting line from the article…

The defense is based on a specific Florida law that requires that only approved breath testing machines be used

If a machine with vital embedded software, such as that in the EPROM of the breathalyser device, is approved for use then ONLY devices with the approved version of the software can be used. For example, if we approve a "BreathMatic XV7 with software version 1.2.3.4" then use a "BreathMatic XV7 with software version 1.2.3.5", we are not using an approved device. In these machines, the software is the device.

So what? Bear in mind that manufacturers can silently change the software version embedded during a manufacturing run to fix bugs or add features. This practise is common and is called "slipstreaming". It could have happened in this case that recently purchased breathalyser devices were not subjected to re-approval. If the manufacturer had changed even a single bit of the software, re-approval would have been required.

I think it is a viable defense for the expert to show that the software version contained within the machine was not the same version of the software in use when the machine gained approval and, hence, that the authorities were breaking the law by using an unapproved device. This depends only on the binary codes being different. The source is not relevant.

[ Reply to This | # ]

So, where does that leave the Florida vote with Diebold?
Authored by: cheros on Sunday, November 06 2005 @ 09:11 AM EST
Just out of interest, given that you have arguably a lot more people affected by
malfunction or, um, creative adjustment of facts (look for "Baxter the
monkey" movie) than with a breathalyser, how does Diebold's track record on
voting square up against such a law?

= Ch =

Just musing as another election looms..

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Ninthwave on Sunday, November 06 2005 @ 10:01 AM EST
They really have lost this. If they don't hand over the source code, the
defendents will win, and police won't use that product because its results will
be unenforcable. Why they are saying they won't is silly.

---
I was, I am, I will be.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Anonymous on Sunday, November 06 2005 @ 10:43 AM EST
We all agree that DUI is bad and we all agree that
guilty people should not get away on a technicality.

I wish PJ had put more emphasis on the fact that
that the problem here lies with the fact that
people are not releasing the required information
to the defendants. This is not a technicality, the
defendants must be allowed to have this information.
The article sounds like we are celebrating smart
lawyers when we should be fuming about bad
prosecuters or that company that does not want
to share legitimate information. If your life
was destroyed because some of your loved ones
were killed by a drunk driver, it's hard to
sympathize with the tone of the post.

[ Reply to This | # ]

Independent verification would require . . .
Authored by: PTrenholme on Sunday, November 06 2005 @ 11:33 AM EST
not only that the device's result be verified, but also that the specific device
used in a specific case be demonstrated to be substancially identical to the
certified sample device(s).

This would, I presume, require the production of the (obviously, required)
periodic calibration results.

---
IANAL, just a retired statistician

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: iraskygazer on Sunday, November 06 2005 @ 11:34 AM EST
This sure does look like a great manufacturing job opportunity. Especially for
the open source community :-)

[ Reply to This | # ]

What is CMI hiding?
Authored by: Anonymous on Sunday, November 06 2005 @ 12:25 PM EST
IANAL, just a retired biochemist and scientific programmer.

It is difficult to imagine why CMI would not want to disclose the source code.
The science behind their analytic process isn't (and legally can't be) a secret.
The algorithm must be quite simple, since it only has to take into account mean
absorbance at three wavelengths, temperature, breath flowrate and possibly but
likely not, the barrometric pressure. So, what is the big deal?

Is there an overide in the software, that allows changing the reading? Is there
a known problem with the software? Perhaps the software is held in onboard
programable firmware (as in a software modifiable BIOS) rather than the EPROM
claimed?

Personally I have real problems with screening methods, used by unqualified
individuals, to make determinations affecting peoples lives. There are just
too many things that can go wrong, which a lay user would not notice or
understand. A followup blood test, conducted by professionals, is appropriate
and reasonable. Nothing less should be permitted to make a court case.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Anonymous on Sunday, November 06 2005 @ 02:18 PM EST
Posting anonymously as I work for a government agency in Sarasota. I don't have
any insight into the breathalizer machines or their firmware, but I can tell you
that in Florida DUI's are very much a guilty until proven innocent crime if the
arresting officer has it in his/her mind that you're guilty.

For starters, the officer on the scene typically fills out arrest paperwork
before the breathalizer unit even shows up. For added fun, I've seen one DUI
checkpoint where the police had to run the checkpoint UNTIL THEY GOT AN ARREST,
at which point they could call it a night. Regardless of what you blow on the
test, even if the breathalizer says 0.0%, you have to be taken to the station
and booked, than your case has to go to court so the judge can throw it out.

So if the officer on the scene believes you're drunk (or just wants to go home),
at a minimum you're in jail for a night. Your name shows up in the paper as
being arrested for a felony. It's very likely that your employer will find out.
You're also out the time spent dealing with the legal proceedings, plus
attorney's fees and court costs.

My personal opinion, if someone in sarasota chose to ignore due process and do
their own thing (probably without consulting any of their IT staff) they deserve
to get the book thrown at them. Plus, due to the overzealous approach taken with
DUI, I know for a fact that there are several cases that should be overturned.
It's unfortunate that this snafu can result in the overturning of cases where
someone was genuinely intoxicated.

[ Reply to This | # ]

This worries me, but there's hope, right?
Authored by: Benanov on Monday, November 07 2005 @ 11:25 AM EST
Is there an FLOSS Breathalyzer design out there? :) I know groups sometimes buy
them if they throw parties a lot (frat houses, etc.) but is there one that has
the source code available?

That'd be a good project to try to get in on--and perhaps sell them to the
states as well. This would get around the 'transparency' problems as the code
would by its very nature be FLOSS.

---
That popping sound you hear is just a paradigm shifting without a clutch.

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: jws on Monday, November 07 2005 @ 02:15 PM EST
"The manual for the Intoxilyzer says that the EPROM has a label covering
the top of the chip and warns that under no circumstances should the label be
removed, because removing the label "will expose the chip to ultra-violet
light and as a result will cause the chip to be erased." I'm sure I don't
have to connect the dots for you on that"

I will comment on this statement. There was a test done quite some time ago
with eproms (in the early 80's) where they were exposed to "normal"
levels of UV. that is what humans would encounter if they uncovered the window
and walked around with it.

No erasure happend from that. The only thing that they proved was that the
chips could be erased or damaged if they were zapped by static while being
carried.

Also, I am surprised that a manufacturing run of any instrument would carry
erasable parts anymore. Flash is usually put into designs to allow
reprogramming and is much more reliable than eproms because the physical parts
do not have to be handled, and static protections afforded all static sensitive
parts in the design also protect flash parts.

If for some reason such as the need to be sure that a part was not alterable,
there are one time eproms which are the same chips as the eraseble ones but have
no windows. That ensures to the manufacturer and the user, in this case law
enforcement that no third party has altered the programming, and that if law
enforcements says to a representative of the company "does this instrument
conform to the specifications to which it was manufactured?" under oath,
the representative could rely in large part on the fact that the part was not
alterable when he answered. This would be much more relevent to this than
erasable parts.

sounds like the manufacturer of the equipment and the law enforcement / judicial
community should think thru some more things as well, since I would not want to
be convicted unless it was shown in court that the instrument had also run the
software / algorithm to which it was certified to have run, and I had too many
drinks and was legally intoxicated. (stupid stupid stupid anyway).

[ Reply to This | # ]

Reverse Engeneering
Authored by: Eeyore on Monday, November 07 2005 @ 02:30 PM EST
<TIN_FOIL_HAT>Of course if someone (an engineer) was going to change the
calibration, it would be possible to download the contents of the EPROM,
disassemble it, change it and then upload it back to the EPROM. And IF this was
done, they would have to remove the uv port cover. </TIN_FOIL_HAT>

;)

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Anonymous on Monday, November 07 2005 @ 04:21 PM EST
The issue is not how the device performed its measurement. The issue is whether
the measurement was accurate. There is a simple way to find out: have the
defendant drink until the breath analyzer indicates an identical reading, then
take a blood sample and determine whether it is accurate. I hope the prosecutor
thinks of that.
---------------------------
Nobody expects the Spanish Inquisition!!

[ Reply to This | # ]

Samuel T. Cogley would love this.
Authored by: Anonymous on Monday, November 07 2005 @ 10:30 PM EST

"I've got something human to talk about. Rights, sir, human rights! The Bible, the Code of Hammurabi and of Justinian, Magna Carta, the Constitution of the United States, the fundamental declarations of the Martian colonies, the statutes of Alpha 3 ...
Gentlemen, these documents all speak of rights. Rights of the accused to a trial by his peers, to be represented by counsel, the rights of cross-examination, but most importantly, the right to be confronted by the witnesses against him ... a right to which my client has been denied."

"Your Honor, that is ridiculous. We produced the witnesses in court. My learned opponent had the opportunity to see them, cross-examine them ..."

"All but one! The most devastating witness against my client is not a human being. It's a machine, an information system . . . the computer log of the Enterprise. I ask this court adjourn and reconvene aboard that vessel."

"I protest, Your Honor."

"And I repeat! I speak of rights. A machine has none, a man must. My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine. Indeed, you have elevated that machine above us! I ask that my motion be granted, and more than that, gentlemen ... in the name of humanity, fading in the shadow of the machine ... I demand it.

I demand it!"

Star Trek, 1967 ...

[ Reply to This | # ]

PJ, U goofed ...
Authored by: tanstaafl on Tuesday, November 08 2005 @ 04:47 PM EST
... because U made the most important point right at the end: If they had used
_*/OPEN SOURCE/*_ code for the breathalyzer, there wouldn't _be_ a problem.

Yes, this was a courageous stand taken by the judges, and I agree with their
stand, but it is too bad these creeps got away. U can bet your bottom dollar
that they probably _were_ guilty of DUI, and now they remain a menace on the
highways, killing and maiming themselves and others, causing immeasurable pain
to family, friends, and communities of the victims (including themselves) they
kill. As an alcoholic (dry today, thank God), I can tell U from the other side
that a boozer will go to just about any length to avoid - or admit, even to
himself - culpability or responsibility.

It is truly sad, even tragic, what proprietary code has done here.

[ Reply to This | # ]

professional engineer statutes
Authored by: Anonymous on Wednesday, November 09 2005 @ 08:06 AM EST
sticking to a professional registration question, does the source code ordered
to be submitted to the state of florida fall under the florida board of
technical registrations rules and regulations for engineers? my point being
there is a professional license for computer engineers and it falls under the
same rules and regulations as other professional engineers - mechanical,
electrical, chemical, architects, etc. as the state of florida judicial branch
is ordering the manufacturer to turn over code i would think they could very
well also require the manufacturer have their code submitted with a professional
engineer's (computer) seal and signature on it (at least they could where i live
and engineer). as the device in question does concern health and safety (could
be the lawyers point if there are false positives) the state board typically has
the judicial authority to require 1) the professional engineer's seal and
signature on engineering documents on the matter, and 2) a peer review of the
engineer's work, which in this case would more than likely require peer review
of the code.

note: it is not uncommon in other engineering branches for manufacturers to
provide consulting engineers with product calculations (or detail information)
that have reviewed by an in-house engineer registered in the state the
manufacturer is distributing their product. tibco is one i can think of right
off hand that provides structural details signed by a registered professional
engineer (structural) for the states the engineer is registered to practice
engineering in.

patrick, pe (arizona, mechanical)
not logged in

[ Reply to This | # ]

The point is:
Authored by: Anonymous on Wednesday, November 09 2005 @ 04:36 PM EST
whether someone is capable of driving or not. Not their blood alcohol limit.
If I drink three beers which puts me over the legal limit but can still drive
fine and you have someone else who cannot match my driving skills sober where is
the justice in putting me in the slammer?

[ Reply to This | # ]

The Florida Breathalyzer/Source Code Cases
Authored by: Anonymous on Wednesday, November 09 2005 @ 11:14 PM EST
All fifty states have laws covering the injurious effects of driving under the
influence. Simply driving under the influence is NOT injurious, but may
potentially be so. The unintended consequences of preventative law are the main
reason I quit as a police officer 28 years ago.

Off topic, but has anyone given thought to the fact that in all fifty states,
you can NOT be charged with driving under the influence if you don't have a
driver's license?

[ Reply to This | # ]

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