By killing off transparency and openness in favor of corporate private intellectual property interests called "trade secrets" our government,of both political parties, has murdered the heart of democracy behind closed doors of secrecy.You can never really and truly kill off democracy;at best they can only hide it,because democracy is just too popular to ever be killed openly.Thus,simply applying reason to the prevarications

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ANATOMY OF THE MURDER OF DEMOCRACY

The heart of American democracy is elections.  

The heart of elections is the vote counts.

America’s vote counts are now claimed to be corporate proprietary, private or commercial “trade secrets,” off limits for all citizens and government alike.  Moreover, the government, should any trade secret information fall into its hands, purports to swear itself in contracts to support corporate secrecy, typically pledging to cooperate with the corporations in order to gang up on any citizens demanding disclosure or transparency in order to defeat the public’s rights in the heart of democracy.  What’s worse is the invisibilization and obfuscation of the vote counts in computer languages, such that we may as well write all government documents in Greek since probably more in the public really understand Greek compared to the various computer languages of the trade secret software.  Thus, even if the trade secrets were disclosed, hardly any of us would be the wiser.  And none of us, even computer experts, would really be able to assess how an election went in time to do anything about it except testify on behalf of a purported “sore loser” – a poor place to find oneself in.  

In short, because winners virtually never question their own wins, and because losers are considered “sore losers” and are heavily pressured to accept that, and since all of us, by voting, are either winners or losers, the pressure put on the losers is yet another way in which democracy is rendered defenseless, since only losers have the incentive to challenge an election result, but they too can be attacked for bias.  Thus, there’s no substitute for doing an election openly on election night.  A new shift of workers should do this to prevent fatigue, using the jury summonsing process as needed (or a parallel poll worker summonsing process) to draft any extras needed. The jury system, the way We the People control the judicial branch, would collapse and be unrepresentative without jury summonsing.  Similarly, if we are serious about maintaining a living democracy, that is, if we are serious about voter-controlled elections as the one and only primary check and balance the people have against the government, then we should make sure that we can control our elections by watching them with our own eyes, and also make sure we have the power to get it right the first time on election night, and the power to correct it later on if this doesn’t happen and errors are found.

Without transparency or the ability to see the counts and obtain any and all information about them, all other checks are but cloaks.  Jeremy Bentham in his old treatise on the law of Evidence said this about public trials, recognizing the wisdom of the centuries that secret trials, no matter their claims of checks and balances, are checkless and balanceless without “publicity” or transparency and openness to the public.  

By killing off transparency and openness in favor of corporate private intellectual property interests called “trade secrets” our government, of both political parties, has murdered the heart of democracy behind closed doors of secrecy.  

This dialogue below is about the legal anatomy of the murder of democracy, and it shows the legal anatomy for how American democracy was killed, or so corporations would have us believe.  As the dialogue shows, however, you can never really and truly kill off democracy; at best they can only hide it, because democracy is just too popular to ever be killed openly.  Thus, simply applying reason to the prevarications of the elections industrial complex exposes the fact that the heart of democracy can not possibly be a commercial trade secret as the vendors claim it is.  

This dialog was written in Ishpeming, Michigan, where a good portion of the classic legal thriller “Anatomy of a Murder” was filmed about 50 years ago, and still acclaimed by many lawyers today for its realistic courtroom dialogue, a rarity among all films.  Like Judge John Voelker, who wrote Anatomy of a Murder under the name “Robert Traver” and lived just down the highway a bit from this author, my ideas for this dialog below come from real cases.  I myself was plaintiff, along with Jack Wells, a veteran of the Aleutian Islands combat of WWII, the second time in our history that American soil was under direct occupation and attack, the first being the War of 1812 where the White House, the House and Senate, the Navy Yard and other Washington D.C. buildings were burned in such a huge conflagration that the flames and light could be seen 50 miles away.  It is indeed fitting that Jack so quickly volunteered to defend his country again, even though he didn’t know me, when he heard about this lawsuit.  The descendant of one of the original Washington state senators as well as the descendant of a Revolutionary War soldier and a community college teacher extraordinaire, Jack Wells passed away over a year ago, but not until after the touch screen voting machines were removed by vote of the county council in light of the lawsuit we had together with all the other political factors.  See lawsuit, at www.votersunite.org/info/lehtolawsuit.asp  Because the touchscreens were replaced by optical scans from the same company and still count secretly the imaged scans rather than the ballots themselves, Jack and I never really celebrated the demise of the touchscreens, because it was something of a hollow victory.

It is up to those who understand that this is a direct attack on democracy, as Jack Wells immediately understood, to carry on, because Jack Wells can not fight any longer.

Unfortunately, what an army from anywhere in the world could never accomplish --- the takeover of American democracy --- the corruption of democratic principles can accomplish.  As the architect of the American Revolution, Thomas Paine, said: “A principle can invade where an army can not penetrate.”  

That penetrating principle is the sword of “trade secret” software.  Follow the dialogue that comes next, and see for yourself if democracy can truly, and logically, and lawfully, be killed, or whether, as in essence Jack Wells and I saw it, that America was again an occupied country, with enemy forces claiming to hold our country’s vote counting territory.  This piece is written in the hopes that more will come to see the corporate takeover of the heart of American democracy for what it is, an invasion and an attack on our most important birthrights as Americans by those who, at the very least, wish to avoid proper accountability by hiding behind a veil of secrecy.  At the same time, given the value of America, it would be naïve to presume there isn’t more than just an avoidance of accountability in operation here, just as a claim by another government or corporation to own our seas or forests and therefore able to exclude us from them would be anything but a negligent desire to “avoid accountability.”  Jack Wells might have joked: “Do we imagine that the Japanese Imperial Forces occupied the Aleutian Islands intending only to vacation there in privacy?  Presuming such privacy being the only goal of trade secrecy in public elections is naïve in the extreme.

We now join “Anatomy of the Murder of Democracy” in media res (in the middle).  Our film script stars Opednews elections editor Joan Brunwasser as Attorney Joan Brunwasser, and features an anonymous "Citizen Advocate" and "Expert witness" that can be taken to present the author’s general views, along with cameo an appearance by a "Judge" who presents a common legal ruling on an objection made the Citizen Advocate.  As we join the movie, Attorney Brunwasser is attempting to show that trade secrets in elections have been waived because all or parts of the various software has been publicly disclosed at various points, accidentally, or on purpose:

In the end, there has been no murder of democracy – you can’t kill an idea especially a popular one – but there has been an attempted murder, and democracy is presently held hostage.

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Citizen Advocate: Objection. Your Honor, Ms. Brunwasser's question about waiver of trade secret rights presumes facts/conclusions not in evidence, it presumes the existence of the trade secret rights in the first place.  We object, and ask that the question be stricken from the record.

Judge:  Sustained.  Ms. Brunwasser, I don't think you've established that private commercial trade secrets actually exist by law in public elections, such that you can move on to how they might be waived or destroyed. Without that foundation being laid, I'm not going to allow you to question the witness as to how something that you've not proven even exists can be waived or destroyed, since that question is premature.  Moreover, my legal research indicates that there's no published appellate court precedent for the notion that trade secrets exist at all in public elections.  Aren't you just assuming that the self-interested claims of vendors and their election official partners are, in fact, the Law?  This is still a question of first impression in this district and circuit, and in every other one that I can see.

Attorney Brunwasser:  Very well, Your Honor, I'll rephrase and lay this foundation.

Attorney Brunwasser:  Mr. Expert witness, if you're familiar with the elements of trade secrecy, please name them:

Expert Witness:  Yes, I'm familiar with them. Trade secrets are commercial information of any kind for which reasonable efforts to maintain secrecy have been maintained, and which imparts some commercial advantage to the owner of the trade secret.

Attorney Brunwasser:  Concerning the "commercial advantage" element benefiting the owner of the trade secret, does a corporation or other business entity ever do anything major that is not for its commercial advantage?

Expert witness:  No, the very purpose of their existence is to make a profit for the shareholders so it would in fact be legally improper for them to do anything disadvantageous to their commercial interest. Something as big as a trade secret would always be for their commercial advantage.  Nobody's in a better position to assess their advantage or disadvantage than the corporation themselves.

Attorney Brunwasser: So, trade secrets then are commercial information for which reasonable efforts to maintain secrecy have been maintained?

Expert witness.  Yes.

Attorney Brunwasser:  Is the word "information" narrowly defined?

Expert witness:  No. It includes data, words, ideas, customer lists, anything for which secrecy has been maintained with reasonable efforts.

Attorney Brunwasser:  So, is it fair to say then that "trade secrets" consist of anything a corporation tries to keep secret?

Expert witness: Well, I wouldn't put it that way, but that's true, yes.

Attorney Brunwasser: So then, when trade secret software is introduced into public elections, are reasonable efforts made to maintain its secrecy?

Expert witness: Yes, confidentiality agreements with the local counties or purchasers in the government are entered into.

Attorney Brunwasser: Does the commercial trade secret then survive its introduction into the public elections?

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.

Attorney Brunwasser: In light of your expertise in this area, would you summarize your opinion here for the court and for the jury?

Expert witness:  Sure. It is not only more likely than not, it is extremely unlikely that a court capable of making binding precedent, which all courts that have ruled on this have not issued a published decision on point, would rule that trade secrets do not exist in the area of public elections, or if they did exist they were momentarily or soon thereafter destroyed as soon as put into contact with public ballots and so forth.  On the other hand, if trade secrets do exist, they are a form of private property where the owner of the trade secret would be under no duty to any public entity to operate the software correctly, or at all.  If the owners of the claimed trade secrets were to openly claim that they do not need to count ballots correctly by law, then there software would be truly private and commercial, but there would be an immediate outcry for the termination of such empty contracts.  On the other hand, if the owners of the trade secret admit that the law applies to the operations of their trade secret, and in fact that the law of how to count ballots IS in fact the very core of their operation, then they admit the heart of their trade secrecy is public domain, and private trade secrets can’t exist in public.  Because any part of the computer code could affect, and is connected to, the counting and vote-transmitting parts, then none of the computer code can truly be deemed a commercial or private trade secret.

Expert witness: I’d also add, but you didn’t ask this, that when the public property is transferred to the private sector, it’s clear that the Constitution protects us against the government, but doesn’t apply to corporations.  Thus, if the transfer to the private sector was successful, then the heart of democracy has been cut out and privatized and our constitution has had its heart removed, thus reducing our Constitutional protections overall.  Under what’s called the state non-delegation doctrine, government is not allowed to transfer away “core functions” of government without sufficient standards of control and management that it can still be said that the public manages and controls that core function.  With trade secrecy, it’s impossible to credibly say that anyone in the government or the public can manage what they can’t ever see or gain access to.  Thus, a real trade secret violates the non-delegation doctrine and thus violates the Constitution, if in fact such a trade secret exists.  But, as I say, trade secrets can’t exist in the first place, not in public elections.  It’s legally impossible without overruling pre-existing constitutional law and violating trade secrecy law itself.

Attorney Brunwasser:  Can we have a democracy and trade secret vote counting at the very same time?

Expert witness:  No, clearly not, all checks are rendered but cloaks without transparency and publicity.  Only the public can check and balance the very process (elections) by which the government’s own power, composition, and checkbook is determined. It’s absurd to believe that the government can watchdog itself or audit itself, with or without its favored corporate “partner.”

Attorney Brunwasser: Then the claim of trade secrets in democratic elections constitutes nothing less than attempted murder of democracy?

Expert witness: Yes, if it’s possible to kill an idea, it would be attempted murder.  The trade secrets render democracy dead, at least no one can see if it lives any more, or not.  Well, strictly speaking, I can’t say that there has been an attempted murder strictly speaking, to speak more precisely I’d say democracy is presently held hostage, in an undisclosed secret location, and democracy can’t live until the heart of democracy is returned, unchained, where we can all see her.

Attorney Brunwasser:  Will we ever be able to get the hostage free?

Expert witness:  As soon as people understand that they are literally claimed to be trespassers on corporate private property called trade secrets, and kicked off “their” land is not the truth of the matter, but instead that the vendors are trespassing and squatting on public land, then the public will have no more hesitation kicking the vendors out than we would hesitate to kick off a squatter on our personal land.  That is, Americans would never lose a battle for democracy and freedom on their own land, if they KNEW that this was what the battle was about.  Consequently, the success of the vendor invasion rests entirely on the ability to conceal not only their trade secrets, but the actual nature of their claims, which are nothing less than a corporate takeover of democracy and a removal of voter control over elections.   Let’s remember Jack Wells, who twice fought against land invasions of his country, in the Aleutian Islands in WWII and again against Sequoia Voting Systems in 2005.  Following his example, his teaching, I don’t see how any invasion of American democracy could ever possibly succeed.  We only need to see it for what it is, like Jack Wells did.

Authors Bio:
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 DEMOCRACY. In the past, I co-founded but am no longer an active participant in the San-Diego focused election rights organization Psephos, but I nonetheless recommend their work and reference their site here.