Paul Holly

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Private Election Companies Should Have Benefit of Trade Secrets

The general value of trade secret protection, perhaps taken for granted in less scrutinized trades, also applies to the private election equipment industry. The private election companies that create election equipment and software are in competition with other companies supplying their own versions. Trade secret protection provides incentives to put effort and capital into product development, product innovation, and advances in procedure and industry innovation. There are less incentives to do this, however, when competitors can appropriate the benefit of the work as soon as it is released. Those companies investing in computer source code development particularly benefit from trade secret protection.

Trade Secret Policy and Election Companies

There is some conflict with trade secrecy policy application to private election companies and a desire for transparency in government. When the issue is as critical to the interaction between the citizens and their government as elections are, the policy behind trade secrets must be examined to determine whether an exception should be made. Transparency is generally a desired trait in government. It is a means of holding elected officials accountable for their actions and reducing corruption among those officials. If the consequences are serious enough, there are exceptions to the desire for government transparency, however, such as when national security is determined to be at stake. Government itself does not necessarily suffer consequences for lack of innovation if not granted trade secret protection of its governmental secrets and the public policy reasons do not apply as much.

Trade Secrets and Election Companies: Private Companies in Government Elections

Voting machine companies have responded to these requirements with streamlined computerized equipment, running more sophisticated software than ever before. Many states upgraded their voting equipment to Direct Electronic Voting systems (“DREs”). These systems offer the benefit of easy-to-use interfaces that allow voters to make their selections efficiently and effectively. They raise accountability and reliability issues, however, as they store their vote totals in computer memory… In recent cases, courts in North Carolina and Florida have held that despite problems encountered with election equipment, election companies are entitled to maintain their trade secrets. On this reasoning, the source code of voting machine software is shielded from discovery.