The Trade Secret Dilemma of Electronic Voting - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Trade Secret Dilemma of Electronic Voting

The Trade Secret Dilemma of Electronic Voting

By: Joe Quintero

Trade secrets are meant to protect a firm’s intellectual property, but what happens when that protection actually hurts the public at large. This is the very situation that is going on right now in the world of electronic voting machines where there is an ongoing conflict between manufacturer’s and regulators.

After the 2000 presidential election and the voting fiasco that ensued in Florida, there was a big push to move from voting via older “punch card” and “lever” machines to newer, supposedly more accurate, electronic voting machines. As a result in 2002 Congress passed the Help America Vote Act (“HAVA”) with the broad goal of “replac[ing] punch card voting systems . . . and establish[ing] minimum election administration standards for States and units of local governments. . . .” In pursuit of its goals HAVA provides funds for states to update their local election equipment, and many have used these funds to upgrade their systems with computerized electronic voting machines. However, as states have moved to update their voting machines, questions and worry of fraud have arisen.

In a world where computer error and security is a real problem, voters have become worried that their votes can be compromised through poor programming or through breach of election systems by hackers. To combat these threats some states have taken measures to inspect machines, including requiring manufacturers to divulge their election software source codes. However, while problems have been found with some electronic voting machines in recent years, manufacturers have been resistant in turning over their software source codes as they consider them to be trade secrets.

A trade secret, generally, is a something that derives economic value from not being known to or attainable by others who would gain economically from its knowledge; and a firm only enjoys the benefits of a secret if they take reasonable steps to protect it. With this in mind, the voting machine manufacturers are right to be protective of their source codes, after all if they were to become readily available, there would be nothing to stop competitors from exploiting them. So the question becomes, if manufacturers divulge their source codes, do they lose their trade secret protection?

It seems that if manufacturers divulge their secret proprietary information to government approved inspectors, it would undoubtedly be with the agreement, either implied or express, that the secrets not be divulged by inspectors. Any breach of that agreement would undoubtedly be considered a misappropriation on the part of the inspectors, and appropriate legal remedies would be available to the manufacturers. So why, then, are manufacturers still reluctant to hand over their source codes?

It is likely that manufacturers remain reluctant because in many states that require inspections, the codes are inspected by private third parties, not government agencies. Manufacturers may fear leaking, or use of their proprietary information by these parties in their own commercial ventures; and while there are legal remedies if this scenario occurred, the best scenario for a manufacturer would be to keep the information out of the hands of third parties in the first place.

Still, it is in the best interest of the voting public to be sure their voting machines are accurate and secure, therefore a solution to manufacturers’ fears may lie with the approach Nevada uses to inspect its slot machines. The Nevada Gaming Control Board takes it upon itself to inspect the slot machines used in that state’s casinos, and so the Board requires access to all the slot machines and gaming software used in the state. The Board also conducts extensive testing of the software and machines, using very rigorous standards, in its very own secure laboratories, not in those of a third party inspector. It’s possible that by taking this kind of approach to electronic voting machines states could not only increase machine reliability, but alleviate some of the fears manufacturers may have in giving away their source codes.

Still, given that each state is fairly autonomous in handling elections, there are differing standards for voting machines throughout the country. These differing standards have led some manufacturers to cease doing business with states whose inspection standards are more stringent than others. In fact following an unfavorable court ruling in 2005, Diebold, one of the nation’s largest voting machine manufacturers, opted to stop selling its machines to North Carolina.

To curtail the practice of selective selling and to ensure a consistent standard for electronic voting machines throughout the country, the federal government, not state governments should take the role of inspecting voting machines. One way to accomplish this would be to amend HAVA to permit the federal government to certify electronic voting machines sold in the United States and then to tie money received by states under HAVA to their acceptance of federally approved machines. With this plan, states would be free to use non-federally approved machines, but by doing so would forfeit federal funds towards administering their elections.

In addition, manufacturers would have more incentive to hand over their source codes for inspection, while feeling safer that their proprietary information would be kept secret at the same time. Given that states would most likely opt to purchase federally approved electronic voting machines, manufacturers would not be able to dodge certain states with strict standards. In other words, to keep from handing over their source codes manufacturers would essentially have to opt out of selling electronic voting machines in the United States all together. Nevertheless, while essentially being forced to hand over their proprietary information for inspection, manufacturer’s fears of losing their trade secrets would most likely lessen given that their machines and software would only be subject to one inspection system, rather than fifty.

At the current juncture there seem to be great obstacles surrounding ensuring the accurate and secure operation of electronic voting machines, and protecting the rights of those who make those machines. However, it is important to recognize the validity of both sides in this argument and to realize that both represent ideals that are very important to our society. While, my suggestions above may not be perfect, they are a representation of what can be done if we attempt to attack these problems with any eye towards respecting the arguments of both sides and work towards a solution acceptable to all.

Chris Reid