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State Secrets and CIA Drone Attacks

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This is interesting:

The CIA has declined comment on allegations that its drones have a targeting margin of error of up to 40 feet, a malfunction that could be contributing to civilian deaths in Afghanistan and Pakistan.

The allegations have surfaced in a complex suit over intellectual property theft in Massachusetts, in which the developer of the targeting software testified that he was surprised to hear that the CIA was willing to use untested code in the drones.

“My reaction was one of stun, amazement that they want to kill people with my software that doesn’t work,” Richard Zimmerman, chief technology officer for Boston-based Intelligent Integration Systems (IISi), said in a sworn deposition in April.

Zimmerman said an executive from Netezza, his company’s partner in the venture, had told him and other company executives that “the CIA called them on the phone, said we need to target predator drones in Afghanistan, that this is a national security matter. We need [the software] up and running immediately.”

The spy agency was desperate for the software and willing to accept untested code in increments, the Netezza executive said, according to Zimmerman.

But IISi would not cooperate in a rush job, Zimmerman said — at least not without some legal immunity in case the missiles missed their targets — or as Zimmerman put it in his deposition: “without some sort of terms around that that indemnifies us in case that code kills people.”

IISi later discovered that an “illegally and hastily reverse-engineered” version of its software ended up on the CIA’s computers, the company is charging. It has sued Netezza for damages and is seeking an injunction to stop the firm and the CIA from using the software in its drones.

Netezza is in the process of being acquired by IBM. This case is very similar to the one that Davida Isaacs and I discussed here (long version) and here (short version); two companies collaborating on a government contract become embroiled in an intellectual property dispute. In the case we examined, the government invoked State Secrets Privilege to prevent discovery of the evidence that one company had used the other company’s intellectual property without permission. In this case, discovery appears to be more important than in a case alleging patent infringement. Where a contractor alleges patent infringement, it doesn’t need to prove “theft”, just use by the government — in legal parlance, patent infringement is a “strict liability” violation. By contrast, copyright infringement requires actual copying. While it seems likely that IISi could show copying from the circumstances, IISi would certainly prefer evidence obtained from either the Government or Netezza to prove copying, in order to prevent even the possibility of a defense that the code was independently created by Netezza employees who were surrounded by a firewall. Any invocation of the state secrets privilege that prevents access to that proof undermines IISi’s case considerably.

Via Serwer.

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