Like Plugging A Leaking Oil Well A Mile Below the Gulf, Onerous Conditions Delay Source Code Review
Earlier this year Judge Abrams issued his case management order for the review of the Minnesota Intoxilyzer 5000. Among other deadlines, he set July 1 as the due date to provide the government with our experts' report of our source code review.
Last week the source code coalition brought a motion to extend the timelines set by the court. We asked for a three month extension given the circumstances. The Court responded by extending these timelines by a little more than one month. I can't help but compare this deadline with the current fiasco in the Gulf of Mexico.
While I'm not our president's number one fan, I empathize with his position. He did not cause the BP oil spill in the Gulf of Mexico, but many look to him to stop the oil and limit the scope of this disaster. Given a choice, I'm sure that everyone would prefer that this oil leak was just offshore, instead of under 5,000 feet of water, and that those responsible for causing the problem would solve it themselves before anyone innocent is harmed.
Likewise, it was the state and CMI who have repeatedly dragged their feet and interfered with our software review. It was the state and CMI that mandated that we travel to Kentucky to review the software, instead of reviewing it from established computer forensics laboratories. Yet, Judge Abrams is expected to speed this whole review process along, meaning that we are expected to inspect, analyze and present a full report in less than two months! I feel like we are trying to plug a leaking oil well miles below the surface of the gulf - and what's worse, it's a leak that we warned everyone about years ago!
"Need for Speed?|
This six week extension of the deadline for our experts to finish their report is already causing serious problems, and simply isn't enough time to properly analyze a complex piece of ancient software. What makes this |need for speed| especially odd is the fact that the State has been dragging its feet for years on any issues regarding the source code!
I |led the charge| against the Intoxilyzer, and was one of the first attorneys in Minnesota to ask the state to produce the source code. This was back in 2006 - over four years ago - and sadly, I have a number of cases that have been consolidated dating all the way back to then.
The Minnesota Supreme Court issued Underdahl I in 2007, holding that Minnesota owned the source code and the state is required to provide it. As early as then, the state acknowledged it could sue CMI for access to the source code, but it did nothing until March, 2008. It was then, over two years after I made my first request, that the state filed a law suit against CMI. And even then, while the state outwardly claimed that it was suing to obtain the software, it was obvious the suit was primarily designed to keep it from us.
With barely a shot fired in the litigation, the state secretly (and hastily!) settled a second time with CMI in June, 2009. We objected to this settlement - we claimed that it rendered source code review too costly, too time consuming, and too inefficient. Nevertheless, Federal Judge Frank approved the settlement over our objection on July 16, 2009. Thus, over three years from the first request for the source code, the state finally crafted a half-cocked method of analyzing this problematic software.
Unfortunately (but not unexpectedly) this interesting settlement was simply the starting point for more and more delay . . .
Relying upon the terms of the settlement reached between the State and CMI, the breath test machine's manufacturer delayed analysis of the software for months. It boasted about how it would provide a |hard copy| of the source code . . . and then it blacked out large portions of the material throughout the book.
Our experts had to cancel flights to Owensboro, Kentucky on several occasions. We were forced to bring motions in federal court to get greater access to the code, made agreements which CMI breached, and had to bring even more motions. All of this occurred months and months after the State had reached its secretive settlement with CMI, and years after the State was first asked to disclose the source code.
10,000 Leagues Under the Sea
Our experts finally - finally! - got access for the first time on May 11, 2010. Since then, they have worked diligently to get the job done, despite onerous conditions. They must perform review at CMI's headquarters in Kentucky, under the constant supervision of CMI security. Hours are limited to Monday to Friday, 8:30-4:30. Each day, Â½ hour is wasted for |check-in.| Additional time is wasted setting up and tearing down their equipment. Although it sounds like an exaggeration, our experts (who otherwise spend their time reviewing software on behalf of such clients as the U.S. Navy) assure us that these work conditions make no sense, and that their job has gone from a simple analysis to one that is more like capping an oil leak at the bottom of the ocean - a new, strange, and incredibly difficult experience.
This is the history behind our request for an additional three months to analyze the source code and issue a report. It is a history full of delay tactics, hidden agendas and double-speak. Yet here, now that we've finally pushed the State long enough and hard enough to actually provide us with some access to the source code, they are objecting to our request for more time, saying we've had plenty!
We are at a critical stage. After almost half a decade of motions, arguments and appeals, we are finally on the threshold of proving what we've always known to be the case: there are serious problems with the Intoxilyzer 5000 that is used in Minnesota. Drivers and their families have the right to ensure the black box accuser works as designed. Otherwise, we will blindly trust this Intoxilyzer and risk more erroneous convictions.
The State did everything it could to prevent us from reviewing this software. Then it was CMI's turn to prevent analysis of the source code. Now, due to overly-restrictive scheduling orders (prompted by the State) our careful analysis is being rushed to a sudden conclusion. It almost seems like the State is being rewarded for dragging its feet for so long.
It may be time to reconsider consolidation....