Sonia Katyal on The Paradox of Source Code Secrecy

17 Jul, 2020

Sonia Katyal on The Paradox of Source Code Secrecy

Sonia Katyal’s article “The Paradox of Source Code Secrecy” was published in the Cornell Law Review! It argues that source code carries a paradoxical character that is peculiar to software.

From the abstract:

Today, the government relies on machine learning and AI in predictive policing analysis, family court delinquency proceedings, parole decisions, and DNA and forensic science techniques, among other areas, producing a fundamental conflict between civil rights and automated decisionmaking. Ground zero for this conflict, I argue, has become the murky, messy intersection between software, trade secrecy, and public governance. In many cases of automated decisionmaking, algorithms – and the source code that informs them, are hidden from public view, even though they implicate core constitutional protections of due process, individualized justice and equal protection. However, because they are often protected as trade secrets, they can remain entirely free from public scrutiny.

This article argues that the constitutionally-inflected conflict that we now face is, in no small part, attributable to a core failure of our system of intellectual property to address, definitively, the boundaries of software protection and the implications for source code secrecy. In a world of privatized decisionmaking, the largely consistent move towards closed code in software sectors, has a number of deleterious results for the public, particularly in the age of algorithmic dominance. However, this Article argues that source code also carries a paradoxical character that is peculiar to software: the very substance of what is secluded often stems from the most public of origins, and often produces the most public of implications.

To read the full article click here!