If code IS law,,,

read on, and on, and on, and

A case rattling around Florida and blogs that geeky-legally types hang out in concerns the right of an alleged drunk driver to have their legal team examine the code running the sample analyzer that the police use.

Jump cut to MMOs and a time where the whole virtual money / ‘real’ money distinction is long gone and we just see in-game transactions as transactions.

Now we’ve got all kinds of possible claim and counter claim resting on code. The service provider might disclaim away but what if I take out a civil action against someone for something or other and it comes does to whether something is or is not technically possible, so are legal teams say fine, lets settle this geek-2-geek, show us the code.

Well gosh

• is this feasible?
• who exactly are they going to get to understand the code?
• what if it happened 6 months later, are they going to roll the code back, do patches become legal documents?
• how long exactly is it going to take to understand the code?

eeek.

Though I do see an interesting line in expert witness work here.

Comments

[Ken Fox]

1.

The core of the issue concerns transparency, not code. If a law grants powers to a device, shouldn't society be allowed to understand how the device operates? Companies want very strong intellectual property protection, but those protections often conflict with social interests.

This issue about understanding a breath-alcohol meter seems similar to understanding a university admissions process. Once we know how things work, then we can debate whether they should work that way. People in power often try to prevent debate by keeping things secret.

[Psyae]

2.

Before you get too far along this topic (which is a good one, I might add), consider the fundamental distinction between asking for code for online transactions and asking for code for an alcohol detection device.

In brief, it's the difference between money and imprisonment. Although there are certainly cases of where the former (developers not releasing code to the detriment of the public) has ended in criminal liability (see the antitrust cases of the U.S. and New York versus Microsoft), transactional issues are usually handled in the civil court, which means liability is limited to damages (i.e., not penal (jailtime)).

On the other hand, when there is the potential for a goverment to take away one's liberty via imprisonment, there is much more at stake. Therefore, this transcends the IP issue Ken Fox has brought up. He is certainly correct about the social policy requiring us to know how these things work (although it opens up the possibility of "hacking" the system), but this is overshadowed by the constitutional protections that both the U.S. Constitution and the Florida Constitution provide.

Now, to respond to the question at hand:

1) Is it feasible for a party to ask to see the code to clarify a technical point? This will usually fall under the category of "discovery," and thus will depend on the specific court and state (or federal) rules. Short answer, yes, it's feasible, legally.
2) Who will they get to understand the code? Expert witnesses hired by both sides to present to the court their interpretations. Experts tend to be expensive (as is discovery), so we're talking big time billable hours, here.
3) Patches as legal documents depends on the status of the case at the time. It gets very complicated here in respect to precedent and res judicata for cases that follow. Too many variables for a clear response without specific case details.
4) How long to research the code? That's up to the expert, the complexity of the code, and how much of the expert's time you can afford.

(I realise that I answered this question from a more legal rather than technical point of view, and that all the questions could be answered yet again technically, but I thought it'd be a good idea to have the legal perspective, as well.)

-Psyae

[Jim Self]

3.

I agree with you Ren, and consider this yet another reason I wouldn't design a world that includes RMT. When entertainment VW's have to begin pondering such legal concerns, you have to step back and ask, "What's wrong with this picture?"

[Timothy Dang]

4.

While I haven't heard of it coming up in VW's yet, there already exists a need for expert witnesses to examine code. I believe it comes up overwhelmingly in intellectual property disputes. I have two friends who have been expert witnesses checking out code, one of whom makes it a large part of his business.

So, this aspect of things isn't new even if the application might be.