Over the last few weeks, Diebold has been dragged into court based on their attempts to subvert North Carolina law requiring that the source code of their products be submitted to the state as part of the contract.
Diebold's complaint has been that they can't supply source code for Microsoft software because it would violate their license agreement - and they didn't write it.
However, Georgia's 3 year old contract requires the same as North Carolina:
(below the fold)
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.
See page 15, Section 11 (PDFs):
http://www.countthevote.org/...
and
http://www.countthevote.org/...
Today, they sent the following to North Carolina after the courts there ruled against them:
Good afternoon, my name is Chuck Owen, and I am the Division Counsel for Diebold Election Systems, Inc. ("DESI")
Attached to this e-mail you will find a letter in a PDF format for your reference.
The substance of the attached letter is to advise you that DESI cannot comply with Session Law 2005-323 as currently drafted, and moving forward to a formal contract would place DESI in a position of violating State law. Therefore, DESI will be unable to move forward in this procurement process, and we want to advise you of this fact sooner than later.
DESI does however want to work with the State Board of Elections for the State of North Carolina in getting the current Session Law revised, so that all vendors will be able to comply with the State Election revised, so that all vendors will be able to comply with the State Election Law. Furthermore, DESI desires to continue to provide support to DESI's loyal customers in the State of North Carolina; however, until the Session Law is revised DESI will not be able to provide such support to its customers.
However, the following documents were provided to Georgia activists by the Secretary of State last year in response to an Open Records Request:
http://www.countthevote.org/...
Clearly showing they have WinCE on deposit according to the escrow agreement.
So, can some of the lawyer types around here tell me why they can escrow third party software in Georgia but not in North Carolina?