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Innovation and transparency for reliable forensic software

M. W. Perlin, "Innovation and transparency for reliable forensic software", The New Abnormal: Data Protection in a More Virtual World, Santa Clara High Tech Law Journal, Santa Clara University School of Law, Santa Clara, CA, 25-Mar-2022.


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Abstract

Courts balance the rights of innovators to protect their trade secrets versus the rights of people accused of crimes. The purpose of trade secrets and other privileges (e.g., doctor-patient, lawyer-client, husband-wife) is to promote a social good that outweighs breaching confidentiality. Trade secrets enable innovators to develop and market new technologies that can help society, which might otherwise not be pursued or made available.

One such trade secret is computer source code for forensic software. The scientific and legal reliability of a computer software program is established by testing the software program on input data. The software application program is empirically testable for reliable operation. However, the source code text is not. Moreover, forensic companies make their software available to defendants for independent testing by defense experts. Courts almost always find that forensic innovation outweighs access to irrelevant source code trade secrets.

This talk discusses innovation and transparency for reliable forensic software. It uses the 1977 People of California v. Martell Chubbs rape-homicide cold case as a motivating example. The talk reviews the science and law of trade secret protection for probabilistic genotyping (PG) software.

Over twenty years ago, Cybergenetics innovated the PG TrueAllele® technology to provide reliable match statistics for complex DNA evidence. PG software has provided scientific evidence in hundreds of thousands of cases where manual methods have failed. TrueAllele helps exonerate the innocent and implicate the guilty.

The talk explains how scientists empirically validate software for reliability. It shows that nine different computer programs all agreed that Chubbs’ DNA was in the rape kit evidence – there was no scientific dispute. The appellate court agreed that source code wasn’t needed. Some lawyers try a source code gambit, based on false facts, to escalate a nonissue into irrelevant nonnegotiable demands. This gambit harms truth, justice, innovation, and society.


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