Trade secrecy, “an FDA for algorithms”, a software bills of materials (SBOM) #SecretAlgos

by Sebastian Benthall

At the Conference on Trade Secrets and Algorithmic Systems at NYU today, the target of most critiques is the use of trade secrecy by proprietary technology providers to prevent courts and the public from seeing the inner workings of algorithms that determine people’s credit scores, health care, criminal sentencing, and so on. The overarching theme is that sometimes companies will use trade secrecy to hide the ways that their software is bad, and that that is a problem.

In one panel, the question of whether an “FDA for Algorithms” is on the table–referring the Food and Drug Administration’s approval of pharmaceuticals. It was not dealt with in too much depth, which is too bad, because it is a nice example of how government oversight of potentially dangerous technology is managed in a way that respects trade secrecy.

According to this article, when filing for FDA approval, a company can declare some of their ingredients to be trade secrets. The upshot of that is that those trade secrets are not subject to FOIA requests. However, these ingredients are still considered when approval is granted by the FDA.

It so happens that in the cybersecurity policy conversation (more so than in privacy) the question of openness of “ingredients” to inspection has been coming up in a serious way. NTIA has been hosting multistakeholder meetings about standards and policy around Software Component Transparency. In particular they are encouraging standardizations of Software Bills of Materials (SBOM) like the Linux Foundation’s Software Package Data Exchange (SPDX). SPDX (and SBOM’s more generally) describe the “ingredients” in a software package at a higher level of resolution than exposing the full source code, but at a level specific enough useful for security audits.

It’s possible that a similar method could be used for algorithmic audits with fairness (i.e., nondiscrimination compliance) and privacy (i.e., information sharing to third-parties) in mind. Particular components could be audited (perhaps in a way that protects trade secrecy), and then those components could be listed as “ingredients” by other vendors.

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