N.C. Judge Declines Protection for Diebold
All states should at least be following NC's lead requiring voting machine code to be placed in escrow.
One of the nation's leading suppliers of electronic voting machines may decide against selling new equipment in North Carolina after a judge declined Monday to protect it from criminal prosecution should it fail to disclose software code as required by state law.
More after the flip...
Diebold Inc. (DBD), which makes automated teller machines and security and voting equipment, is worried it could be charged with a felony if officials determine the company failed to make all of its code - some of which is owned by third-party software firms, including Microsoft Corp. (MSFT) - available for examination by election officials in case of a voting mishap.
The requirement is part of the minimum voting equipment standards approved by state lawmakers earlier this year following the loss of more than 4,400 electronic ballots in Carteret County during the November 2004 election. The lost votes threw at least one close statewide race into uncertainty for more than two months.
Peronally, I want to see the code opened up to public scrutiny. I've mentioned this in a couple of other diaries/comments, but there is a move afoot to create XML-based Trusted Logic Voting Systems.
We can only hope they'll carry through on this threat...
"We will obviously have no alternative but withdraw from the process," said Doug Hanna, a Raleigh-based lawyer representing North Canton, Ohio-based Diebold.
Of course Diebold seems to really be trying to avoid the intent of the law...
The dispute centers on the state's requirement that suppliers place in escrow "all software that is relevant to functionality, setup, configuration, and operation of the voting system," as well as a list of programmers responsible for creating the software.
That's not possible for Diebold's machines, which use Microsoft Windows, Hanna said. The company does not have the right to provide Microsoft's code, he said, adding it would be impossible to provide the names of every programmer who worked on Windows.
The State Board of Elections has told potential suppliers to provide code for all available software and explain why some is unavailable. That's not enough of an assurance for Diebold, which remains concerned about breaking a law that's punishable by a low-grade felony and a civil penalty of up to $100,000 per violation.
I'd find it highly unlikely that the statute really requires escrowing the underlying OS. If so, it is poorly written and should be corrected. Anyone know? They'd have the same issue with any vendor that relied on an open-source OS such as Linux.
Of course, this is just the start of the battle:
But because no one has yet to accuse Diebold of breaking the law, Wake County Superior Court Judge Narley Cashwell declined to issue an injunction that would have protected the company from prosecution. Cashwell also declined to offer an interpretation of the law that would have allayed Diebold's concerns.
"We need to comply with the literal language and the statute," Cashwell said. "I don't think we have an issue here yet."