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Diebold Quits North Carolina - Is It Really About Microsoft? |
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By Joyce McCloy, NC Coaltion for Verifiable Voting
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December 23, 2005 |
According to their letter
to the State Board of Elections, Diebold's reluctance to escrow
third-party software in North Carolina that led to them dropping out of
the state's voting system procurement process. They were not at
liberty, they claimed, to disclose the source code for "operating
systems, drivers and myriad other pieces of code
that are present in any computer system." Their specific concern is
apparently Microsoft Windows CE. They appear to have had no qualms
about escrowing Microsoft's source code in other states.
Given that Diebold was decertified in California for misrepresentation
to the Secretary of State and for installing uncertified software on
the machines, it is easy to be skeptical about their public
statements. In this case it seems concerns about proprietary
third-party software may have been less of a factor than the "harsh
criminal and civil penalties for
non-compliance" imposed by North Carolina law.
The affidavit that
Diebold was unwilling to sign is very specific and the penalties are
indeed harsh:
§ 163‑165.9A. Voting systems: requirements for voting systems
vendors; penalties.
…
(3) The chief executive officer of the vendor shall sign a sworn
affidavit that the source code and other material in escrow is the same
being used in its voting systems in this State. The chief executive
officer shall ensure that the statement is true on a continuing basis.
...
b) Penalties. - Willful violation of any of the duties in subsection
(a) of this section is a Class G felony. Substitution of source code
into an operating voting system without notification as provided by
subdivision (a)(2) of this section is a Class I felony. In addition to
any other applicable penalties, violations of this section are subject
to a civil penalty to be assessed by the State Board of Elections in
its discretion in an amount of up to one hundred thousand dollars
($100,000) per violation. A civil penalty assessed under this section
shall be subject to the provisions of G.S. 163‑278.34(e)."
When comparing notes with election reform activists in Georgia,
who have
had their share of problems with Diebold and lack of transparency and
have done numerous Freedom of Information Act requests to the Secretary of
State of GA, we made some alarming discoveries. According to Diebold's
escrow agreement with the state of
Georgia, obtained through such a request by CountTheVote.org, the company apparently escrowed Windows CE in 2002. According to that agreement:
11. ESCROW. Contractor shall place into escrow the source
code for all Contractor software in the Election Management System, and
for all third party software in the Election Management System, in
accordance with an Escrow Agreement substantially in the form attached
hereto as Appendix "J", with such changes approved by the Secretary of
State.
The Escrow Agreement shall be entered into within seven (7) days of the date hereof.
The escrow agreement will be a third-party escrow agreement with an
escrow agent in Georgia reasonably approved by the Secretary of State.
The escrow will be for the benefit of the State, the Secretary of State
and local goverments conducting elections.
In the escrow agreement there is the following annotation, which clearly suggests that Windows CE is included:
Since it appears they have already escrowed Windows CE in Georgia,
it seems likely that Diebold's concern in North Carolina may be that
under the
new election reform laws passed last summer, political parties can
appoint computer scientists to examine the
source code. According to North
Carolina Session Law 2005-323:
(d) Subject to the provisions of this Chapter, the State Board of
Elections shall prescribe rules for the adoption, handling, operation,
and honest use of certified voting systems, including, but not limited
to,including all of the following:
(9) Notwithstanding G.S. 132‑1.2, procedures for the review and
examination of any information placed in escrow by a vendor pursuant to
G.S. 163‑165.9A by only the following persons:
a. State Board of Elections.
b. Office of Information Technology Services.
c. The State chairs of each political party recognized under G.S.
163‑96.
d. The purchasing county.
Each person listed in sub‑subdivisions a. through d. of this
subdivision may designate up to three persons as that person's agents
to review and examine the information. No person shall designate under
this subdivision a business competitor of the vendor whose proprietary
information is being reviewed and examined. For purposes of this review
and examination, any designees under this subdivision and the State
party chairs shall be treated as public officials under G.S. 132‑2.
Such an examination might reveal that, as in California, the
escrowed software was not the software installed in voting systems.
While Diebold was willing to risk the "slap on the wrist" of
de-certification, which their lobbyists and many county election
officials are working overtime to reverse in California, they are not
up for the potential of criminal penalties.
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