Trade Secrets and Election Companies: Private Companies in Government Elections

[i] See generally David Card & Enrico Moretti, Does Voting Technology Affect Election Outcomes? Touch-screen Voting and the 2004 Presidential Election, Rev. Econ. and Statistic 89(4), at 660–673 (Nov. 2007) (discussing how the difficulties of voting in Florida during the 2000 election have resulted in many counties installing new touchscreen technologies to vote on in the 2004 election).

[ii] 42 USCS § 15407 (LexisNexis 2012) (showing the distribution of 3 billion dollars in federal money to be released to the states for the purchase of new election equipment between the years 2003 and 2005).

[iii] See, e.g., Wexler v. Lepore, 342 F. Supp. 2d 1097, 1100 (S.D. Fla. 2004). Florida is an example of a state that purchased touchscreen voting machines for some locations and optical paper ballot scanners for others. Id.

[iv] Id.

[v] See generally Herron MC, Lewis JB. 2006.  From Punchcards to Touchscreens: Some Evidence From Pasco County, Florida on the Effects of Changing Voting Technology.  Presented at Annu. Meet. Midwest Polit. Sci. Assoc., 64th, Chicago.  “In the 2000 general election approximately 9.9% of the United States counties used touchscreens.  This figure jumped to 17.57% in 2002 and then to 21.48% in 2004, and slightly more than a third of United States counties will use touchscreen voting in November, 2006”.  Id.

[vi] See Bush v. Gore, 531 U.S. 98, 101 (2000).  Vice President Gore at the time sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade counties.  Id.

[vii] See Paul M. Schwartz, Article, Voting Technology and Democracy, 77 N.Y.U.L. Rev. 625, 634 (2002).

[viii] See Brenda Reddix-Smalls, Article, Individual Liberties and Intellectual Property Protection – Proprietary Software in Digital Electronic Voting Machines: The Clash Between a Private Right and a Public Good in an Oligopolistic Market, 19 Fordham Intell. Prop. Media & Ent. L.J. 689, 719 (2009).  “-However, the 2000 controversial presidential election and its judicial progeny – Bush v. Gore – were catalysts for HAVA, which mandated improved technology for the states handling federal elections.  HAVA also provided the monies for upgrading voting systems…”.  Id.

[ix] Id.

[x] See generally HELP AMERICA VOTE ACT OF 2002, 116 Stat. 1666.  The Act specifically mentions that access to voting is to be assured to individuals with disabilities, including blindness, and to those voters who have limited proficiency with the English language.  Id.  See also Lillie Coney, Legislative Reform: A Call for Election Reform, 7 J.L. & Soc. Challenges 183, 184 (stating that the establishment of the Election Assistance Commission, for the first time in our history, created a role for the federal government in public elections held to fill federal offices).

[xi] See Jennifer Nou, Note: Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts, 118 Yale L.J. 744, 750 (2009)(describing HAVA as Congress’s first real effort to replace outdated voting technology in the United States).

[xii] See generally Daniel P. Tokaji, Article: The Paperless Chase: Electronic Voting and Democratic Values, 73 Fordham L. Rev. 1711, 1733 (2005).  Mr. Tokaji notes that, while HAVA funds were not conditioned on the replacement of punch-card voting machines or other types, the Act did require that half the $650 million it provided to the states be used to replace such machines.  Id.  It also required that people with disabilities be accommodated and allowed jurisdictions to meet this requirement by having at least one DRE unit or other accessible voting machine in each polling place.  Id.

[xiii] See Tokaji supra note 20 at 1722 (describing the functionality of the many different types of voting systems in use by counties in the United States and specifically describing the functionality of DRE voting machines).  Mr. Tokaji continues, describing the “fever pitch” that the controversy of paperless voting reached in 2003 due to arguments that DREs were error prone, vulnerable to security attack, and vulnerable to fraud.  Id.

[xiv] Id.

[xv] See Phillip  J. Peisch, NOTE: Procurement and the Polls: How Sharing Responsibility for Acquiring Voting Machines Can Improve and Restore Confidence in American Voting Systems, 97 Geo. L.J. 877, 890 (2009) (describing how Secretary of State Debra Bowen exercised her decertification powers to curtail the use of DRE voting machines throughout the state of California);  Mr. Peisch further notes that decertification caused an uproar among state election officials who had to replace expensive inventory that they believed to be perfectly acceptable.  Id. at 891.

[xvi] Id. at 892.  Mr. Peisch discussing how in Florida after the 2000 election there was a rush to pass legislation that banned paper ballots, punch-cards, and lever machines in the state and provided funding to help states acquire new optical scan or DRE machines.  Id.  But after problems in the 2006 election with many of these machines, banned the use of DRE machines in the state in favor of machines that produced a paper trail.  Id.  See also Richard L. Hasen, ARTICLE: The Untimely Death of Bush v. Gore, 60 Stan. L. Rev. 1, 17 (2007).  Mr. Hasen describing a contest in Florida’s 13^th congressional district where there was a 361 vote victory for the Republican Vern Buchanan over Democrat Christine Jennings that was looked upon with great suspicion because of the approximately 18000 undervotes that were recorded in the race.  Id.  Most of the undervotes occurred in Sarasota County which used electronic voting machines.  Id.

[xvii] See generally Title: 2005 Voluntary Voting System Guidelines , 71 FR 18824, § 2.9 (which describes the requirements for DREs with a VVPAT if a paper ballot is not used in the polling location, where the voting system must display and print a paper record of the voter’s selections).  These requirements are only for those states that require DREs to have that capability.  Id.  § 7.8 describes the independent verification that must take place where at least two cast vote records are created where the voter can verify one directly, with their senses, and one indirectly with the voting machine, or both records indirectly using independent voting machines.  Id.

[xviii] See Jennings v. Elections Canvassing Comm’n, 958 So. 2d 1083 (Fla. Dist. Ct. App. 1st Dist. 2007) (appellate court denied certiorari review).  Petitioner wanted to compel discovery which included source code and other proprietary technology associated with the voting machines.  Id.  Court found that the petitioners had not met their burden to demonstrate that the trial court departed from essential requirements of law.  Id.  See also Hasen supra note 24 (describing the contest in Florida’s 13^th congressional district which resulted in the controversy).

[xix] Id.

[xx] See generally 1—1 Roger M. Milgrim & Eric E. Bensen, Milgrim on Trade Secrets § 1.01 (2010)(discussing how the classic definition of trade secrets is very broad, covering any information that can be used in business to gain a competitive advantage over others who do not know the information).

[xxi] See Kewanee v. Bicron, 416 U.S. 470, 475—476 (U.S. 1974).

[xxii] See Id. at 480.  The court discussing how patent laws promote the progress of Science and Useful Arts by offering a right of exclusion for a limited period.  Id.  This has a positive affect on society through the introduction of new products.  Id.  The court discusses how trade secret laws protect the things that would not otherwise have protection under patent law because they do not fall into one of the categories where patents are allowed.  Id. at 482—483.  Congress should continue to give the states the ability to grant trade secrets.  Id. at 493.

[xxiii] See generally 1—1 Milgrim, supra note 28, § 13.03 (discussing common law misappropriation of trade secrets).  Misappropriation can occur as a breach of an express contract, continued use of a licensed trade secret after the license has expired, reliance upon implied contract, or through submissal of highly confidential information to Government agencies in connection with administrative review.  Id.  It is this last type that we are most interested in here;  See also Komatsu Forklift Mfg. Co. of U.S.A. v. United States, 717 F. Supp. 843, 846 (Ct. Int’l Trade 1989) (holding that although there is a risk of disclosure beyond the authorized scope of the administrative protective order, that the imposition of sanctions for even inadvertent disclosures militates against the possibility and is the protection upon which the disclosing party must ultimately rely).

[xxiv] See also 1—1 Milgrim, supra note 28, § 1.05 (discussing various ways information can lose its status as a trade secret properly, such as becoming publicly disclosed or readily available, loss of secrecy through a sale, display or circularization of goods embodying the trade secret, or being reverse engineered).

[xxv] See 1—2 Milgrim, supra note 28, § 2.01

[xxvi] Levine, supra note 35 at 71.

[xxvii] See generally David S. Levine, The People’s Trade Secrets?, 18 Mich. Telecomm. Tech. L. Rev. 61 (2011), http://www.mttlr.org/voleighteen/levine.pdf (discussing the information from other commentators that governments should have the same rights as other parties to classify information).  Mr. Levine further discusses the Restatement of Unfair Competition that includes the government in its list of non business organizations that are able to hold trade secrets.  Id.

[xxviii] See 1—1 Milgrim, supra note 28, § 1.09.

[xxix] Id.  “The kind of information that can be a trade secret is virtually unlimited.  Unlike patent and copyright, there is no ‘category’ limitation on trade secret eligibility”.  Id.

[xxx] See Learning Curve Toys, 342 F.3d 714,724 (7th Cir. Ill. 2003).  “Unlike a patentable invention, a trade secret need not be novel or unobvious”.  Id.  See also PortionPac Chem. Corp. v. Sanitech Sys., 217 F. Supp. 2d 1238, 1252 (M.D. Fla. 2002) (holding in Florida, that while a trade secret does not need to be novel, it needs to be more than just an “ordinary mechanical commodity”);  But cf. Spokane Research & Dev. Found. V. City of Spokane, 983 P.2d 682 (Wash. App. 1999) (where Washington is an exception where trade secrets must be novel and not ascertainable from other sources);  See also 1—1 Milgrim, supra note 28, § 1.01.  “There is no patent-like ‘novelty’ standard for a trade secret.  However, if matter is novel, it presumably qualifies as a trade secret (subject to the claimant’s proving use of adequate secrecy safeguards)”.  Id.

[xxxi] See also 1—1 Milgrim, supra note 28, § 1.05 (stating that software source code, which is some of the most valuable trade secrets in commerce, is not lost upon marketing of software code if the recipient is prohibited from disassembling and decompiling the object code to retrieve the underlying source code);  Milgrim continues by discussing that computer software is one of the most important products eligible for trade secret status.  Id.  at § 1.09.  An important element is the distinction between the marketed object code and the separate, human readable, source code.  Id.  Atari Games Corp. v. Nintendo of America, Inc. held that wrongfully obtained source code, used to create object code programs was barred from using a fair use defense.  975 F.2d 832, 843 (Fed. Cir. 1992).

[xxxii] See also 1—1 Milgrim, supra note 28, § 1.05 (discussing trade secrets that are embedded in a product that is available to the public and that it is still protectable if it cannot be reverse engineered);  Compare Cemen Tech, Inc. v. Three D Indus., L.L.C., 753 N.W.2d 1, 4–5, 9–10 (Iowa 2008) (holding that the theoretical ability of a competitor to reverse engineer the trade secret does not in and of itself destroy the trade secret status of the information);  with Weins v. Sporleder, 569 N.W.2d 16, 21 (S.D. 1997) (where the information could be reverse engineered in minutes or at most days and therefore the trade secret status was defeated).

[xxxiii] See 1—1 Milgrim, supra note 28, § 1.05.

[xxxiv] See 1—1 Milgrim, supra note 28, § 1.01 (stating that states began to adopt the Uniform Trade Secrets Act in the 1980s);  Milgrim further states that the statute largely was a codification of common law, but added some features such as a possible statutory increase in damages and discretionary attorney’s fees.  Id.  The act provides both a procedural and substantive definition for trade secrets.  Id.

[xxxv] See generally Id.  (where the full text of the Uniform Trade Secret Act is reproduced in § 1.01);  Milgrim lists each state and descriptions of how they implement their own version of a trade secret act and notes if they do not adopt the Uniform Trade Secret Act.  Id.  It is telling to the importance of trade secrets that all states have codified some sort of protection for trade secrets.

[xxxvi] Id.

[xxxvii] Id.

[xxxviii] Id.

[xxxix] 5 U.S.C.S. § 552 (LexisNexis 2012).

[xl] Id. at § 12.03. Milgrim discussing how there is a fourth exemption that has now been defined by “well over 100 decisions” which consists of two branches: “(1)trade secrets and (2) confidential (or privileged) commercial and financial information obtained from a person”.  Id.  Milgrim further discusses the worry that government obtainment of trade secrets that are privately owned will allow the information to “pass through” to competitors in the private sector.  Id.  See also Mountain States Tel. & Tel. Co. v. Dept. of Public Serv. Req., 634 P.2d 181 (Mont. 1981) (which decided on constitutional grounds that it would be a violation of the Fourteenth Amendment and the improper taking clause to require a regulated public utility to disclose its confidential business trade secrets in public hearings).

[xli] 5 U.S.C.S. § 552(b)(4). Exemption four states that disclosure is not required for “trade secrets and commercial or financial information obtained from a person and privileged or confidential”. Id.

[xlii] 3—12 Milgrim, supra note 28, § 12.03.

[xliii] Id.;  Boeing Co. v. Sierracin Corp., 738 P.2d 665, 675 (Wash. 1987).  The appellee in Boeing Co. arguing that Boeing Corporation lost its trade secret status when it submitted the information to the FAA, but the court stating that such information is exempt from public disclosure to prevent harm to the competitive position of the company.  Id.  The court also stating that since submission to the FAA is mandatory, loss of trade secret status would essentially mean Boeing could never have trade secrets.  Id.

[xliv] 3—12 Milgrim, supra note 17, § 12.03.  Material that qualifies for FOIA exemption is a question of fact with the determining factor being whether the material still has competitive advantage value and not the age of the material.  Id.

[xlv] Id.  See also Mountain States Tel., 634 P.2d at 288—289 (holding that Montana’s right to know provision conflicts with the due process clause of the constitution).

[xlvi] 5 U.S.C.S. § 552.  The 1974 amendments provided judicial review of executive secrecy claims following the WaterGate scandal.  Id.  The 1976 amendments gave specific examples regarding exemption 3 including for national defense and breaching of privacy.  Id.  See generally Exec. Order No. 12356, 47 FR 14874 (1972) (expanding what can be protected under the interests of national security by President Reagan, later largely nullified by a series of directives by President Clinton);  See generally Exec. Order No. 13233, 66 FR 56025 (2001) (by President Bush restricting the access to the records of former presidents);  See generally Exec. Order No. 13489, 66 FR 56025 (2001) (one part of which revokes executive order 13233).

[xlvii] See Levine, supra note 35 (discussing the malleability of trade secrecy theory).  Mr. Levine further argues that at least the remedies should be limited for the misappropriation of public infrastructure trade secrets with the only fully satisfactory solution being to abandon trade secret protection entirely in the context of public infrastructure.  Id.

[xlviii] Opportunities to sue and to have standing may be limited to candidates who have lost narrowly in elections and have some cause to believe that election equipment is a possible source of blame.

[xlix] See Mills v. Shelby County Election Comm’n, 218 S.W.3d 33 (Tenn. Ct. App. 2006) and Jennings, 958 So. 2d. at 1084.

[l] 218 S.W.3d at 37.

[li] Id.  Article I, § 5, of the Tennessee Constitution uses the language “The elections shall be free and equal…”.  Id.  Article IV, § 1, of the Tennessee Constitution uses the language “the purity of the ballot box”.  Id.  Mills seems to be arguing that those voters using electronic voting would have inferior voting rights and would not have an equal voting experience to those using a system that uses paper ballots.  Id.

[lii] Id.  Mills talking about the central tabulators containing proprietary software that manufacturers claim to contain trade secrets and giving unequal voting rights to those that used them compared to other counties using paper ballots.  Id. at 36;  Mills referring to the voting machines used by the Shelby County Election Commission and the software within as being the proprietary trade secret of the manufacturers.  Id.

[liii] Id. at 40 (with the court concluding “…that Mr. Mills presents a theoretical question of what may happen in future elections, which question does not rise to the level of a justiciable controversy”).

[liv] 958 So. 2d 1083.

[lv] Id. at 1084 (where Jennings was denied a discovery request by the trial and appellate courts).  Christine Jennings was running against Vern Buchanan.  Id.  She was demanding trade secrets that included source code and other proprietary technology associated with voting machines.  Id.  The election was for none other than the seat previously held by Katherine Harris, who had become famous for being Florida’s Secretary of State and presiding over the Bush/Gore dispute.  Id.

[lvi] Jessica Ring Amunson & Sam Hirsch , THE CASE OF THE DISAPPEARING VOTES:LESSONS FROM THE JENNINGS V. BUCHANAN CONGRESSIONAL ELECTION CONTEST, Jenner.com (Sept. 8, 2010), http://www.jenner.com/system/assets/publications/579/original/HirschAmunson.pdf?1313693646.  This is an article written by the attorneys representing the plaintiff in the action in question.  Id.

[lvii] Id.  Discussing that the voting machines differed county by county and the ones in use in the county with the most undervotes were touchscreen units without a paper trail.  Id.  The machines in question allowed voters to page through the ballot page by page using buttons while viewing the contests on a screen.  Id.  The voter is presented with a summary screen at the end which informs them in bright red letters if no selection is made in a contest.  Id.

[lviii] Id.  (discussing that the litigation that ensued showed that if the undervotes were considered to be largely unintentional and the voters had voted in the percentages expected in those counties, than Jennings would have won by a margin of 3000 instead of losing by less than 400 votes).

[lix] Id.  See also COMM. ON HOUSE ADMIN., DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF REPRESENTATIVE FROM THE THIRTEENTH CONGRESSIONAL DISTRICT OF FLORIDA, H.R. REP. NO. 110—528, pt. 1, at 7 (2008).

[lx] Amunson, supra note 64.

[lxi] Id.

[lxii] Id.  Amunson discussing that discovery was attempting to recover the software running on the voting machines at the time.  Id.  The system in question had no paper trail and the data recording voter selections were stored electronically only.  Id.

[lxiii] See Daniel P. Tokaji, Policy Essay: The Future of Election Reform: From Rules to Institutions, 28 Yale L. & Pol’y Rev. 125, 125 (2009). State and local officials are charged with running elections.  Id.

[lxiv] Id. at 127 (discussing how some reforms such as HAVA occur at the national level, the election system is decentralized to a large degree with a considerable amount of power in the hands of local election officials);  Tokaji supra note 20 at 1717 (describing how the election system in the United States is often referred to as a unitary entity when really nationwide there are approximately 13000 different jurisdictions that have responsibility for administering local elections).

[lxv] See Nou supra note 19 at 749 (describing how private entities continue to play a pivotal role in the task of administering elections and describing how a select group of private vendors produce the equipment and software that counts the ballots).

[lxvi] See David S. Levine, Article: Secrecy and Unaccountability: Trade Secrets In Our Public Infrastructure 59 Fla. L. Rev. 135, 138 (2007) (voting equipment being one example of public infrastructure where trade secrecy should not be allowed).