Here’s a followup to “Trade Secret Claims No Longer Protecting Source Code from Discovery — So How’s Your Code?”:
An Arizona judge just threw out 49 breath tests performed using the Intoxilyzer 9000 by CMI, based on the company’s refusal to make the software source code available under subpoena for inspection by defendants facing prosecution for DUI/DWI violations. The Intoxilyzer 9000 was adopted for breathalyzer use in Arizona law enforcement in December of 2006. This source code trade secret claim could potentially invalidate every conviction in the state of Arizona for the last year and a half.
While trade secret is the most fundamental intellectual property means of protecting technology, its historically absolute shield against disclosure is becoming less and less absolute, as more and more of the nuts and bolts of our societal infrastructure is in the hands of private contractors to government.
Based on outcomes like this — I’m predicting we will start seeing legislative initiatives to amend state-by-state implementation of the Uniform Trade Secrets Act (UTSA) — and/or to specifically exempt computer source code from trade secret protection and compel disclosure in litigation involving public policy questions.