Defendants Should Have the Right to Inspect the Software Code Used to Convict Them
Secret code is everywhere—in elevators, airplanes, medical devices. By refusing to publish the source code for software, companies make it impossible for third parties to inspect, even when that code has enormous effects on society and policy.
Context & Ripple Effects
This Slate argument lands at the center of a fight over proprietary code inside the justice system: US courts already lean on third-party proprietary recidivism algorithms in sentencing, bail, and guilt decisions, and New York City's crime lab fought to keep its disputed DNA-matching software sealed until ProPublica's motion forced a federal judge to unseal its source code.
The piece also sits against a broader backdrop of governments demanding code they cannot otherwise see — reporting that the US has demanded source code from tech firms through FISA orders and sealed civil cases, while Apple publicly refused China's equivalent request. The asymmetry is the point: states get inspection rights when they insist; defendants largely do not.
First-order effects
- Vendors of forensic and sentencing software (crime-lab DNA tools, risk-score providers) become direct targets of defense discovery motions, since the DNA unsealing shows judges will order disclosure over trade-secret objections.
- Defendants convicted or scored by these tools gain a concrete litigation path: challenge evidence whose code they have never been allowed to inspect, forcing courts to weigh secrecy against due process case by case.
Second-order effects
- Software firms facing compelled disclosure must choose between opening their code under protective orders, withdrawing from the criminal-justice market, or lobbying legislatures to codify trade-secret exemptions — each reshaping who supplies these systems.
- Government demand for source code becomes visibly two-sided: agencies extract code through FISA and sealed filings while resisting symmetric inspection for the accused, sharpening the political fight over who gets audit rights.
Third-order effects
- If the pattern holds, court admissibility of algorithmic evidence converges on an auditable-by-default standard, with trade-secret protection yielding to a disclosure regime similar to how other evidentiary methods are validated.
- Source-code access hardens into a policy battleground spanning criminal justice, procurement, and national security — the same question of who may inspect consequential code now surfacing in Pentagon spending debates over adversaries examining military software.
The trend: Consequential code is moving from unquestioned black box toward conditional auditability, with courts, legislatures, and states contesting who earns inspection rights.