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Diebold Quits North Carolina - Is It Really About Microsoft? PDF  | Print |  Email
By Joyce McCloy, NC Coaltion for Verifiable Voting   
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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