The excessive protection of the trade secrets that allow voting machines to accurately (or, problematically, inaccurately) tabulate votes means that business interests are being prioritized over citizens' interests.
The risk of the theft of trade secrets - generally defined as information that derives economic value from not being known by competitors, like the formula for Coca-Cola - is a serious issue. But should the "special sauce" found in voting machines really be treated the same way as Coca-Cola's recipe? Do we want the source code that tells the machine how to register, count and tabulate votes to be a trade secret such that the public cannot verify that an election has been conducted accurately and fairly without resorting to (ironically) paper verification? Can we trust the private vendors when they assure us that the votes will be assigned to the right candidate and won't be double-counted or simply disappear, and that the machines can't be hacked? As a September USA Today editorial described, all of the above have either been proven to be potential risks or have actually happened.
Nonetheless, primarily because of trade-secret law, the policy answer to the above questions is an unqualified "yes." Undoubtedly, voting machine companies, just like telecommunications companies, have legitimate secrets, and they have the right to protect those secrets against misappropriation. But the legitimate use of trade secrecy by voting machine companies also means that the public has no way to independently verify that the machines are working properly. The public has been stripped of its ability to have independent, verifiable confidence that when a vote is made, it will be tabulated and recorded properly. Trade-secret law means that we must trust the vendors when they say that their machines are free of error, bias, flaws and security loopholes. Trade-secret law effectively means that independent researchers who want to test voting machines and assure that they are operating properly cannot do so without the permission of the vendor - or risk being found to have misappropriated the trade secrets themselves.
And yet, as I've written elsewhere, the law was not designed to address trade secrets that involve broad public concerns like the administration of public elections. The formula for Coca-Cola is a proper trade secret: Its theft could have a devastating effect on the company itself and the beverage industry at large. But that theft wouldn't impact the core public infrastructure that allows us to vote. Not knowing the formula for a soft drink is not quite the same as not knowing whether your vote is being counted. And unfortunately, the years since the advent of the electronic voting machine have not done much to instill confidence.
There is a better way to think about commercial secrets - to consider them akin to privacy. In some scenarios, we want privacy to outweigh other values. For example, we generally protect the privacy of personal health information because, while useful for pharmaceutical and other medical industry entities, we are more concerned about access to personal information by those same companies. But in other scenarios, we allow limited access to that information by those same entities so as to improve treatment of a patient's illness. Privacy is not sacrosanct. So, too, should we think about commercial secrecy - as a tool to be deployed when it is beneficial to the public at large.
David S. Levine wrote this column for Future Tense, a collaboration among Arizona State University, the New America Foundation and Slate.