Legal Implications of “Hidden” Computer Code

October 19, 2015

Internet BackgroundA criminal case working its way through the California court system highlights the challenges associated with oversight of the operations of proprietary computer code.  In that case, a widely-used software system was applied to establish a DNA match in a murder “cold case.”  When defense counsel sought to obtain access to the code for independent review of its operations and accuracy, the developer of the software objected, asserting its proprietary rights.  This case illustrates the increasingly significant challenge associated with monitoring the operations and effectiveness of “hidden” computer code.

The California case involves defendant Martell Chubbs.  Based on use of the “TransAllele DNA” testing system, prosecutors contend that Chubbs is linked to an old, unsolved murder.  Reportedly, however, the findings of the TransAllele DNA system seem to differ substantially from those obtained using other popular DNA testing systems.

As a result of this apparent discrepancy, defense counsel asked the trial court for access to the code to permit independent review of its operations.  Cybergenetics, the company that developed and markets the testing system objected to the request, arguing that the code is proprietary and should not be available for examination.  The trial court then refused to accept the TransAllele DNA test results, and the prosecution appealed that action.  The California appellate court reversed the trial court’s action, and the California Supreme Court is now considering whether or not to become involved in the case.

There have been other instances in which popular software-based testing systems have been challenged in criminal cases.  For example, some jurisdictions such as Minnesota have addressed challenges to the effectiveness of “breathalyzer” test systems used to measure blood alcohol levels.  In order to conduct these reviews effectively, counsel and the courts must have access to computer code and other technology, much of it likely to be proprietary, in order to permit independent review and analysis.

This case has legal implications that extend beyond criminal trials.  For instance, the recent controversy over emission control software embedded in Volkswagen automobiles illustrates the extent to which a variety of daily legal compliance functions are now virtually entirely controlled by computer software that is not directly monitored by any independent party.

Frequently, regulatory oversight over those embedded software systems is limited to occasional testing to determine that the systems are capable of meeting specific operational requirements.  Such oversight does not, however, ensure that the systems actually satisfy the applicable performance standards during regular operations.

Effective legal oversight of embedded and other hidden computer code requires independent access to that code.  Although consideration must certainly be given to intellectual property and other proprietary rights asserted and relied upon by the developers and owners of such code, those rights should not be permitted to block access needed by courts, regulators, and other authorities to monitor the performance of hidden computer code.  Such access by oversight authorities will be increasingly important as the scope of embedded software use continues to expand into an ever-wider range of products and devices.