42-2254. Safeguards and protections

A. Any software or related materials that are provided to the department under this article are subject to the safeguards provided in this section.

B. In any court proceeding to enforce a subpoena duces tecum for any portion of software, the court may receive evidence and issue any order necessary to prevent the disclosure of trade secrets or other confidential information with respect to the software, including requiring that any information be placed under seal to be opened only as directed by the court.

C. Notwithstanding any other provision of this article, in the case of software that comes into the possession or control of the department in the course of any examination with respect to any taxpayer, the department shall:

1. Use and analyze the software and related materials only in connection with the examination of the taxpayer's return with which it was received, in any subsequent administrative or judicial proceeding and in any inquiry into any offense connected with the administration or enforcement of this title or title 43.

2. Provide the taxpayer and the software owner with a written list of the names of all persons who will analyze or otherwise have access to the software.

3. Maintain the software in a secure area or place.

4. Obtain either the owner's written consent or a court order authorizing removal before removing the computer source code from the owner's place of business.

5. Refrain from decompiling or disassembling the software.

6. Copy the software only as necessary to perform the specific examination, number all copies and provide written certification that no other copies have been or will be made.

7. Account for and return to the owner all copies of the software at the conclusion of the examination and related administrative or judicial proceedings.

8. Permanently delete from the department's hard drives or at other mass storage devices all copies of the software at the conclusion of the examination and related administrative or judicial proceedings.

9. Obtain from any person who analyzed or otherwise had access to the software a written certification under penalty of perjury that all copies and related materials have been returned and that no copies still exist.

10. Provide to both the taxpayer and the owner of any interest in the software a written agreement between the department and any individual who is not an employee of the department but who will analyze or otherwise have access to the software that the individual will not:

(a) Disclose the software to anyone other than the department's authorized agents and employees.

(b) Participate, for two years, in the development of software that is intended for a similar purpose.

D. For the purposes of subsection C, the owner shall make available any necessary equipment or materials for analysis of a computer software source code required to be conducted on the owner's premises. The owner of any interest in the software is considered a party to any agreement described in subsection C, paragraph 10.