The Paradox of Source Code Secrecy

In Lear v. Adkins, the Supreme Court precipitously wrote, "federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent." Today, it is clear that trade secrecy's dominance over source code has been a significant cause for concern in cases involving the public interest. To protect civil rights in the age of automated decision making, I argue, we must limit opportunities for seclusion in areas of intellectual property, criminal justice, and governance more generally. The solution, therefore, does not require a complete overhaul of the existing system, but rather a more nuanced, granular approach that seeks to balance the interest of disclosure and public access with the substantial values of protection, privacy, and property.