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27-Jul-2020

Forensic Magazine scrutinizes proposed bill that would reduce innovation in Forensic Science


Forensic® Editor-in-Chief Michelle Taylor wrote about a pending House bill that strikes at technology innovation and promotes government obstruction of science and law. In her article "Bill Questions Proprietary Algorithms Used in Probabilistic Genotyping Software," Taylor spoke with DNA innovator Cybergenetics and others about the HR 4368 bill proposed by California Democrat Rep. Mark Takano.

Cybergenetics developed TrueAllele® Casework twenty years ago to overcome the rampant misinterpretation of complex DNA evidence, and restore justice through better science. TrueAllele objectively finds accurate DNA information that simpler methods cannot. The software's scientific success has led other companies to adopt its innovative way of using forensic data that others discard.

"The courts have upheld the admissibility of" commercial programs, wrote Taylor, "and the idea that their source codes are trade secrets, numerous times in the past decade. Additionally, and most importantly, … companies make their source code, software, validation information and users' manuals available to defense in confidentiality."

The programs "have been validated and are in compliance with the FBI's Scientific Working Group on DNA Analysis Methods (SWGDAM), which is an indication of robustness, accuracy and acceptance within the scientific community," Taylor reported. "Additionally, the algorithms for … software programs have been published in peer-reviewed literature."

"Still," continued Taylor, "Takano and supporters of the bill argue the only way to know whether a platform's findings are accurate enough to be used as evidence in court is to examine its source code for bias and inaccuracy—the same source codes that have been treated as trade secrets but are also available to defense under confidentiality."

Taylor interviewed Mark Perlin, PhD, MD, PhD, Cybergenetics founder and Chief Scientist and Executive. He told Forensic "the source code isn't needed to test the accuracy of his TrueAllele platform, or any other forensic algorithm."

Supporters of Takano's "Justice in Forensic Algorithms Act" claim that "a forensic algorithm is source code." That is incorrect, Dr. Perlin explained:

"An algorithm describes a procedure. A programmer writes in a computer language, translating the algorithm into source code text. A compiler turns the text into executable software that runs as a smartphone, laptop or other computer app. Algorithms are shared, software is tested. Since software pirates can easily copy text files, trade secret law protects source code confidentiality."

As Dr. Perlin recently told the Wall Street Journal, "You don't learn how a car works by reading its blueprints; you take it for a test run. Lawyers read, scientists test."

The proposed bill would replace judges with bureaucrats. Instead of a trained impartial judiciary deciding on scientific reliability on a case-by-case basis, the bill would strip away these century-old judicial powers, handing them over to an unaccountable executive agency. Prosecutors and defendants alike would no longer have the right to introduce reliable DNA evidence that could help their case.

The designated executive agency is the National Institute of Standards and Technology (NIST) in the United States Department of Commerce (DOC). NIST has long promoted its favored commercial software, creating an uneven forensic marketplace, violating the DOC's mission.

The Forensic article discusses NIST's role should the bill pass. Taylor observed, "Traditionally, NIST has been non-regulatory, meaning it cannot enforce any policies on crime labs. This bill would change that slightly by requiring labs to use only software approved by the federal agency if the results are to be admissible in court." When reached by Forensic for a statement, NIST representatives said the federal agency does not comment on pending legislation.

Perlin told Forensic he is worried the bill will stifle forensic innovation by "revoking long-standing trade secret laws that protect visionary innovators."

"Government protects trade secrets to promote innovation. Probabilistic genotyping companies give source code and testing software to defendants, and publish algorithms; these transparent forensic science advances benefit everyone," Perlin said. "By eliminating liability for misusing proprietary information, the bill would encourage bad acts that could bankrupt innovators."

An in-depth side-by-side analysis reveals what the bill proposes to do. The comparison lists each clause, along with the current situation and how the bill would adversely impact society.


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