Al Qaeda and the Taliban haven't been able to bring down the CIA's Predator drones. But a new lawsuit alleging parts of their targeting software are pirated (and faulty) could.
On December 7, 2010, Massachusetts Superior Court Judge Margaret Hinkle is expected to issue a decision on a complicated contract and intellectual property-related lawsuit that could ground the CIA's Predator drones.
Intelligent Integration Systems (IISi), a small Boston-based software development firm, alleges that their Geospatial Toolkit and Extended SQL Toolkit were pirated by Massachusetts-based Netezza for use by a government client. Subsequent evidence and court proceedings revealed that the "government client" seeking assistance with Predator drones was none other than the Central Intelligence Agency.
IISi is seeking an injunction that would halt the use of their two toolkits by Netezza for three years. Most importantly, IISi alleges in court papers that Netezza used a "hack" version of their software with incomplete targeting functionality in response to rushed CIA deadlines. As a result, Predator drones could be missing their targets by as much as 12m. (The National Geospatial Intelligence Agency, which assists the Defence Department with combat and homeland security support, also reportedly uses the software named in the intellectual property suit.)
According to a 2009 report by the Brookings Institute, 10 or more civilians die for every terrorist killed by drone missiles - and the topic of civilian casualties due to improperly targeted (or simply reckless) drone attacks is a controversial one.
Internal emails obtained by Fast Company indicate that both IISi and Netezza were aware of serious flaws in Geospatial, as-is, at the time of the alleged intellectual property fraud. The exact term used by IISi was "far from production ready code". In two emails dated September 16, 2009, IISi CTO Rich Zimmerman complains of "problems with some very intricate floating point calculations that are causing me to fail a lot of my regression tests" and that the software was not "production ready".
A Netezza email in the public record from October 13, 2009, indicates that shortly before the partnership went sour, president Jim Baum wanted "to help our mutual customer reach his requirements" and that he (the client) believes that the expertise on his team is prepared to deal with early release software. He has a previous generation system so he is able to compare results himself. It is obviously in our mutual best interest to meet this client's needs quickly." Copious email evidence and court records (.pdf) indicate that both IISi and Netezza were well aware the client was the CIA and the software was to be used in unmanned drones.
One report in the British press sums it up this way: "IISi alleges that Netezza misled the CIA by saying that it could deliver the software on its new hardware, to a tight deadline... Netezza illegally and hastily reverse-engineered IISi's code... Despite knowing about the miscalculations, the CIA accepted the software."
This all goes back to when Netezza and IISi were former partners in a contract to develop software that would be used, among other purposes, for unmanned drones. The relationship between Netezza and IISi soured due to alleged disagreements over the CIA's (apparently rushed) project deadlines. IISi dropped out of their work developing Predator software; Netezza continued working with the CIA on the project.
Netezza initially sued IISi over contract-related issues. IISi then prevailed on core counterclaims relating to wrongful termination and put forth IP charges against Netezza. The original complaint by Netezza's counsels put the CIA-related information into the public domain; subsequent court proceedings revealed the specific contours of the unmanned drone targeting connection.
IISi's current counterclaim claims that both the software package used by the CIA and the Netezza Spatial product were built using their intellectual property.
IBM recently announced that they intend to purchase Netezza for approximately $US1.7 billion. Netezza and IISi began collaborating in 2006, when IISi began reselling a bundle of Netezza's data warehousing kit and Geospatial. Their relationship continued through several joint software developments before souring in late 2009.
According to statements made by IISi CEO Paul Davis, a favourable ruling in the injunction would revoke the CIA's licence to use Geospatial. In real-life terms, this would either force the CIA to ground Predator drones or to break the law in their use if the court rules in IISi's favour. It is unknown if the CIA has a third option in case of a ban on the use of IISI's toolkit.
ISi's lawyers claimed on September 7, 2010 that "Netezza secretly reverse engineered IISI's Geospatial product by, inter alia, modifying the internal installation programs of the product and using dummy programs to access its binary code... to create what Netezza's own personnel reffered to internally as a "hack" version of Geospatial that would run, albeit very imperfectly, on Netezza's new TwinFin machine... Netezza then delivered this "hack" version of Geospatial to a US Government customer (the Central Intelligence Agency)... According to Netezza's records, the CIA accepted this "hack" of Geospatial on October 23, 2009, and put it into operation at that time."
Testimony given by an IISi executive to the court also indicates that the Predator targeting software, as initially acquired by Netezza, was faulty. According to Zimmerman's deposition, his reaction upon finding out deadlines for their Netezza co-project for the CIA would not give enough time to fix software bugs was one of shock. According to the deposition, Zimmerman said "my reaction was one of stun, amazement that they (CIA) want to kill people with my software that doesn't work." The CTO was also nervous of any possible legal liability for IISi in case Predator missiles missed their target; in his words they would not continue participating "without some sort of terms around that indemnifies us in case that code kills people".
IISi's official statement, as provided by email, is that "the Superior Court has already ruled that Netezza's termination of IISi was wrongful and that Netezza breached the contract. Further, the Court approved a stipulation under which Netezza may not disclose to IBM any copies (including any portion thereof) of the IISi Geospatial and Extended SQL Toolkit products. We believe that Netezza's denial that it used our software is false and that it is directly contradicted by Netezza's own internal emails to CEO Jim Baum, which show clearly that Netezza 'hacked' our software and delivered that hacked and defective version to the government."
So could IISi's injunction request shut down Predator drones? Hypothetically, yes. But given the tone, tenor and urgency of the CIA's counterterrorism programs abroad, it is not likely. Nonetheless, Judge Hinkle has been extremely receptive to IISi's claims. A betting man would guess that some sort of face-saving resolution involving escrow will be introduced. But in the meantime, amateur Graham Greenes everywhere can remain fascinated by how ordinary business lawsuits can end up spilling the guts on counterterrorism ops.
As of press time, Netezza has not responded to a request for comment.
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