Anatomy of the Murder of Democracy

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Expert witness: Well, that's a good question, probably not. The court in Wearly v. FTC held that "proprietary information, in the trade secret category, is not unlike the status of virginity. Once taken without consent, whether by seduction or rape, it is gone forever." Wearly v. Federal Trade Commission, 462 F.Supp. 589, 600 (D. N.J. 1978). The question would be, when the private and public world's collide or are combined, does the private overwhelm, and "eat" if you will, the public world, kind of like Pac-Man, or does the introduction of public information into the private trade secret destroy its commercial character? That is, can a previously public thing be made private property by a contract? I'd consider the vote counts in America to be an intensely valuable piece of public property, and if it were effectively transferred to a private company as part of a contract for voting software which the government normally pays millions for, then the true price tag for the software is in fact those millions PLUS untold millions more, whatever America's vote counts are worth on the market? How much would somebody pay for the right to count votes in secret? Some would undoubtedly pay very considerable sums for that right. If the vote counts are property, then the owner can do whatever they want to them, manipulate them, deface them, sell them, ignore them, or preserve and improve them, and it's none of our business.

Expert witness: On the other hand, if the software and vote counts are not "free" for the vendor to do whatever they please, then they are no longer private property, they are now public property, and have lost their "virginity" under Wearly v. FTC by being made "public." In summary, if the vendors can do whatever they please with the vote counts, then they are a trade secret. If they are now limited by law, then the software is no longer a private trade secret but is a public thing.

Attorney Brunwasser: You're saying that trade secrets do not exist in elections?

Expert witness: Not exactly. But I am saying that either they do not exist, or if they do exist, then the public has no right to expect the vote counts to be accurate, since private property owners can do as they please with their property, they needn't have every computer in their household, for example, run perfectly.

Attorney Brunwasser: So if the government and vendors admit that the law applies to their trade secret software, then they'd have no right to say the trade secret still exists?

Expert witness: Yes. And if the law doesn't apply, then the vendor has no duty to the public to make the software work properly.

Expert witness: I would also add, making an analogy from intellectual property law patent rights versus human rights, as follows, quote: "Intellectual property rights are not absolute rights like the right not to be tortured. The interests of companies in earning enough … to enable them to earn enough to fund further R&D have to be weighed against the human rights of those needing access to health care." –Andrew Clapham, Human Rights: A Very Short Introduction at p. 131; Oxford University Press, (c) 2007 (weighing patent rights of pharmaceutical companies against the lives of humans suffering from AIDS in Africa) Thus, the intellectual property right, even if it exists, is not absolute and must be weighed against other important or even more important interests. For this reason, even if the trade secret did not lose its virginity so to speak upon entering the public arena, there's an additional level of doubt as to whether it exists.

Attorney Brunwasser: But if a trade secret does exist in elections, and any of the software is left out on a server somewhere, would that be a waiver?

Expert witness: Yes, that's an example of losing one's trade secret virginity, so to speak. It’s been reported that Diebold and Sequoia software have both been left out on public servers at some point in the past several years.

Attorney Brunwasser: So if vendors have left their software out at any time, even if the trade secret existed for a time, it's now been waived?

Expert witness: Yes, that's the one and only way these rights get lost, PRESUMING the trade secret existed in the first place. It must first be proved that the trade secret exists, before we move on to the question of waiver or no waiver. The companies might then claim that the “improvements” after the fact of disclosure would be trade secrets, but that would be a small fraction of overall software, and the virginity of the basic software can’t be restored. Moreover, that new claim of trade secrecy as to the new fraction would still encounter public ballots and public elections, and probably lose its secrecy before it even got started, as stated before.

Expert witness: I should add one thing, concerning the “balancing” of rights and interests that I mentioned before. In the case of AIDS drugs in Africa, the private interest in R&D would not and could not be “balanced” against the public interest except for the claim that the private R&D inevitably has public benefits, in the form of new drugs that save lives and health, which is a public benefit for sure. However, in the case of the form of intellectual property claimed in elections, namely, trade secrecy, any “improvements” that the trade secrecy allows (if any, because the secrecy means flaws are less likely to be detected and therefore improvement of software is less likely) will also be captured as trade secrets, so at no point will there be any public benefits to the trade secrecy. Thus, even though a “balancing” is appropriate, it doesn’t appear that there are any public justifications for protecting the private trade secret interest, which is the only thing that can properly be balanced against the pure public interest. Thus, in such a balancing test, the public interest wins hands down, it’s unopposed because there’s no public benefit that’s assertable unless the vendors point to how the public benefits in the long run from the vendor having a secret monopoly on vote counting software in a given jurisdiction or jurisdictions.

Attorney Brunwasser: Is this the case in other areas of intellectual property law?

Expert witness: Generally, yes. In copyright, a sixty year monopoly on the copyright, together with the eventual guarantee that the work enters the public domain at the end of the copyright term, is given in exchange for filing the complete work with the Copyright Office. Same with a patent, a monopoly for a limited term is given in exchange for the disclosure of the patent to the world via filing it with the Patent and Trademark Office so that the world of inventors can learn from the invention, and improve society overall that way. With government publications there never is a copyright, it can be used freely by anyone. Only in trade secrecy is it claimed that they can non-disclose basically forever, so long as they want to keep it a secret and that is evidenced by their contracts and efforts to maintain secrecy. In the end, unless the trade secret’s scope is kept in check by things like the public interest, or destroyed by its entry into the public domain, the realm of information that corporations can own is potentially limitless, or limited only by what a corporation can get its hands on and then decides to claim an exclusive right to. We should not presume that a trade secret even exists in the public arena, even if it’s claimed to exist, because once the information disappears behind the shield of trade secrecy, it’s unlawful disclosure is punishable by punitive damages plus attorney’s fees awards, even in states that typically don’t allow punitive damages or “exemplary” damages at all in the usual case.

Attorney Brunwasser: How did the law get to punitive damages?

Expert witness: Well, it would only apply against an employee or someone with a duty to cooperate in the secrecy, but this arises because all the states have adopted either the Uniform Trade Secrets Act definition of trade secrecy, or the Restatement of Torts definition, both of which offer punitive damages against violators.

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Paul Lehto practiced law in Washington State for 12 years in business law and consumer fraud, including most recently several years in election law, and is now a clean elections advocate. His forthcoming book is tentatively titled DEFENDING (more...)

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