Private Election Companies Should Have Benefit of Trade Secrets

[i] See generally Joshua A. Douglas, ARTICLE: Is the Right to Vote Really Fundamental?, 18 Cornell J.L. & Pub. Pol’y 143 (2007) (discussing how, surprisingly, the constitutional right to vote is not always a fundamental right and that states have the right to regulate elections but stating that “voting represents the epitome of self-governance”).

[ii] Id. at 144—145 (discussing surveys of Americans showing they consider the right to vote one of the most valued under the Constitution and stating that “the right to vote is part of our ethos for what it means to be an American”).

[iii] See Tokaji supra note 20 at 1729 (discussing the suits filed by voting rights activists in several states that relied on the Bush v. Gore decision seeking the replacement of antiquated voting systems).

[iv] See generally Levine, supra note 35. Mr. Levine illustrates several examples where trade secrecy prevents the public from evaluating the actions of the government including a voting equipment example and proposing possible solutions to the problem of government trade secrets including the elimination of FOIA exemption for commercial trade secrets.  Id.  See Levine, supra note 67 (where the same author in a different article states that there should be public disclosure of trade secrets when private companies provide what can be considered to be public infrastructure);  See Massey, supra note 98 (discussing how electronic voting  methods cannot be trusted due to proprietary code and that these systems should be replaced with those using open source software).

[v] See Levine, supra note 74 at 139 (discussing how trade secrets are a vitally important business practice for product innovation with an example of a study showing that between the early 1980s and mid 1990s the use of trade secrecy had “increased dramatically”).

[vi] See David S. Almeling et al, ARTICLE: A Statistical Analysis of Trade Secret Litigation in Federal Courts, 45 Gonz. L. Rev. 291, 304 (2010) (noting that trade secrecy is a “good form of protection for rapidly evolving technologies that can outpace the evolution of other IP laws”);  Evans, supra note 101 at 320 (stating that the most common form of protection for source code are copyrights and trade secrets when the distribution takes place only in binary form).

[vii] See generally Levine, supra note 35 (arguing that any time it appears that government infrastructure contains trade secrets it undermines the public interest of having a transparent and accountable government);  Massey, supra note 98 (arguing in the article that proprietary source code should not be used in election equipment and advocating the use of open source code instead).

[viii] See Levine, supra note 35 at 107 (presenting as one of three solutions to the “problem of government trade secrets” to clarify freedom of information laws in the state to not government trade secrets as an exemption to FOIA requests).  Mr. Levine argues that trade secrecy law, such as the UTSA, was not developed with government trade secrets in mind.  Id. at 77.  Reddix-Smalls, supra note 16 at 763 (stating that intellectual property rights to voting machines results in private control of a “fundamental liberty interest” with earlier examples using game theory).

[ix] See Nou supra note 19 at 749 (discussing how elections are administered by private companies);  Tokaji supra note 20 at 1754.  Mr. Tojaki discusses research demonstrating the benefits of maintaining development in voting equipment to reduce the number of uncounted votes, reducing the “racial gap” in uncounted votes, and decreasing the incidence of residual votes.  Id.

[x] See Nou supra note 19 at 766 (noting that after the HAVA act four election companies dominated but at last nineteen vendors were competing for multi-million dollar state and local contracts).

[xi] See Risch supra note 79 at 8 (stating that the existence of trade secrets creates increased incentive for a company and that trade secrets enhance the marginal benefits of society).

[xii] See Thomson supra note 102 at 290.  “Without the availability of trade secret protection, the use and application of fruitful knowledge might not be as freely employed by trade secret holders as it would otherwise be out of fear that they could lose the benefits of their efforts”.  Id.  Risch supra note 79 at 39.  Mr Risch while arguing earlier in the article that trade secrets do not create as much incentive to innovate as other types of intellectual property, concedes that any rule requiring a “forced disclosure” of secrets would nevertheless cause there to be a smaller return on investment for developing valuable information and therefore might be less likely to develop such information, with software source code as a specific example.  Id.

[xiii] Id.  (stating rules that source code be distributed with its software would have an impact on incentive to innovate);  See generally Thomson supra note 102 (discussing how trade secret protection was the primary method for ensuring that the code of software vendors was not misappropriated before the development of patent and copyright law as viable alternatives).

[xiv] See Mark A. Lemely, ARTICLE: The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 Stan. L. Rev. 311, 331 (2008) (stating that trade secret law reaches “areas where patent law does not reach” and the additional incentive provided is important for innovation and patent applications being time consuming and expensive).

[xv] Id. at 332.  Not only does a patent expire after twenty years, but before that time, scientists can learn from the patent disclosure and use that information to improve on the invention or design around it.  Id.

[xvi] Id. at 331 (describing how applying for patent protection can take time, significant paperwork, and be expensive).

[xvii] See Levine, supra note 35 at 78 (stating that the FOIA permits a citizen or business to request information from the government as a result of “increased interest in allowing investigative journalism” in the 1960s).

[xviii] 3—12 Milgrim, supra note 50, § 12.03 (describing the exemptions that have been built into the FOIA).

[xix] Id.  Exemption four to the FOIA covering commercial trade secrets “explicitly exempts from application of the FOIA any matters that were ‘trade secrets and commercial or financial information obtained from a person and privileged and confidential’”.  Id.

[xx] Id.  Milgrim being relevant to our purposes by discussing an amendment in 1976 to the third exemption limiting the statutes to which it applies and showing that the exemptions are not safe from amendment.  Id.

[xxi] See generally Levine, supra note 35 (stating that if there are trade secrets in government architecture there is undermining of a transparent and accountable government);  Nou supra note 19 at 779.  Nou advocating a clause in all government contracts to election companies that “would require that the technology and software used in all voting machines would be transparent and available for inspection”.  Id.  Massey, supra note 98 at 241 (stating that proprietary code undermines transparent and accountable government).

[xxii] 3—12 Milgrim, supra note 50, § 12.03.  Milgrim describing in reference to private companies that “[p]roprietors of confidential information” are more likely to cooperate with federal agencies in an amicable fashion if the cooperation does not cause substantial competitive harm and that it is in the government agency’s interest to have smooth functioning.  Id.

[xxiii] Id.  (discussing the desire for the agency to be able to obtain further information efficiently).

[xxiv] See Cal Elec Code § 19103 (as an example of a state, in this case California, requiring the depositing of the source code of any newly approved voting system to be deposited in an approved escrow facility).

[xxv] 3—12 Milgrim, supra note 50, § 12.03 (stating that it is more likely for private companies to cooperate if it does not cause a competitive disadvantage through loss of trade secrets).

[xxvi] See Thomson supra note 102 at 298.  “It is well established that computer software can avail itself of the protection provided by trade secrets”.  Id.

[xxvii] 3—12 Milgrim, supra note 50, § 12.03.  Milgrim stating proprietors of confidential information are more likely to cooperate with federal agencies in an amicable fashion if the cooperation does not cause substantial competitive harm and that it is in the government agency’s interest to have smooth functioning.  Id.

[xxviii] See Nou supra note 19 at 766 (noting that after the HAVA act, four election companies dominated providing election systems and services to the states).

[xxix] 3—12 Milgrim, supra note 50, § 12.03 (discussing how companies with confidential information do not want to cause themselves competitive harm).

[xxx] See Massey, supra note 98 at 236.  “Secure,

reliable and fair elections are essential to American democracy, and should be in the interest of the general public independent of ideology or political affiliations”.  Id.

[xxxi] See Nou supra note 19 at 766 (noting that four private companies dominated election system services).

[xxxii] See Levine, supra note 35 at 64.  Levine generally arguing that a government trade secret should be a “contradiction in terms” and “democratic values like transparency and accountability should eclipse whatever arguable economic benefit a government receives from maintaining the alleged trade secret”.  Id.

[xxxiii] Id. at 73 (stating “governments need no incentive from the market to serve the public, and selling a product (and generating a profit) is not the primary reason that governments exist”).

[xxxiv] Id. at 95.  “[T]rade secrecy law does not fit well when the entity claiming the trade secret is a public body, especially one that has no competitors and relies on taxpayer funding to survive”.  Id.

[xxxv] See Evans, supra note 101 at 322 (describing open source as software where the source code is publicly available and further describing the licenses that can be used to make code open source).

[xxxvi] Id.

[xxxvii] Shawn W. Potter, Opening Up to Open Source, 6 RICH. J.L. & TECH. 24, 24 (Spring 2000).  Open source software is vulnerable to viruses since “malefactors” can easily view the code, but this is somewhat mitigated by there being more people who can view the code and safeguard against such attacks.  Id.