A congressional report claims that using Chinese telecommunications companies goods and services in the United States could threaten national security. One of the biggest reasons to be worried, said the report, was that the companies were not being transparent about their ties to the Chinese government. If their products are used in critical U.S. telecommunications infrastructure, the argument goes, the companies and the government could steal business trade secrets and even threaten the foundation of our communication system.
Surprisingly, one could level a similar criticism regarding the lack of transparency from U.S. companies providing voting machinery. The excessive protection of the trade secrets that allow the machines to tabulate votes means that business interests are being prioritized over citizens interests. The lack of transparency and hyper-secrecy has also led to serious questions about the integrity of the machines.
The risk of the theft of trade secrets – generally defined as information that derives economic value from not being known by competitors – is a serious issue. But should the special sauce found in voting machines really be treated the same way as Coca-Colas 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 wont be double-counted or simply disappear, and that the machines cant be hacked? As a 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 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.
And yet, the law was not designed to address trade secrets that involve broad public concerns such as the administration of public elections. The formula for Coca-Cola is a proper trade secret. Not knowing the formula for a soft drink is not 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 we are more concerned about access to personal information. But in other scenarios, we allow limited access to that information so as to improve treatment of a patients 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.