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<nettime> diebold law firm aware of lgal risks

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   Diebold knew of legal risks
   Attorneys warned firm that use of uncertified vote-counting software
   violated state law
   By Ian Hoffman, STAFF WRITER
   Attorneys for Diebold Election Systems Inc. warned in late November
   that its use of uncertified vote-counting software in Alameda County
   violated California election law and broke its $12.7 million contract
   with Alameda County.
   Soon after, a review of internal legal memos obtained by the Oakland
   Tribune shows Diebold's attorneys at the Los Angeles office of Jones
   Day realized the McKinney, Texas-based firm also faced a threat of
   criminal charges and exile from California elections.
   Yet despite warnings from the state's chief elections officer, Diebold
   continued fielding poorly tested, faulty software and hardware in at
   least two of California's largest urban counties during the Super
   Tuesday primary, when e-voting temporarily broke down and voters were
   turned away at the polls.
   Other documentation obtained by the Tribune shows that the latest
   approved versions of Diebold's vote-counting software in this state
   cast doubt on the firm's claims elsewhere that it has fixed multiple
   security vulnerabilities unearthed in the last year.
   "In California those issues can be addressed," said Diebold spokesman
   David Bear. "They were addressed in Maryland, and they could be
   changed in California."
   California elections officials said they are perplexed that Diebold
   apparently hasn't changed practices since a December audit revealed
   uncertified software running in every county that it serves.
   "Diebold may suffer from gross incompetence, gross negligence. I don't
   know whether there's any malevolence involved," said a senior
   California elections official who spoke on condition of anonymity. "I
   don't know why they've acted the way they've acted and the way they're
   continuing to act. Notwithstanding their rhetoric, they have not
   learned any lessons in terms of dealing with this secretary (of
   The memos show that for months, Diebold attorneys at Jones Day have
   been exploring ways to keep the nation's second-largest electronic
   voting provider from losing an eighth of the national market.
   Jones Day partner Daniel D. McMillan declined to comment on the
   content of the documents except to confirm they were internal papers
   from his office. He warned against drawing conclusions from the firm's
   Diebold's legal team appears to have been exploring whether California
   Secretary of State Kevin Shelley has the power to investigate the
   company's practices. The memos reflect an argument that the
   regulations by which California approves voting equipment for
   elections may never have been properly codified and are unenforceable.
   Diebold's Bear said his company is cooperating with Shelley's office.
   "I've been working with the SOS and we're hopeful we can move forward
   and the advantages of electronic voting can be continued to be offered
   to the citizens of California," he said. "We will continue to work
   with state and local elections officials to address any and all
   elections issues."
   The law firm's memos reflect a corporate defense firm on a
   $500,000-a-month campaign to protect Diebold.
   It is a critical moment for Diebold, for electronic voting in
   California and for at least some of the 19 counties statewide that
   purchased Diebold voting systems for more than $50 million.
   On Wednesday, state elections officials begin debating their advice to
   Shelley on whether to disallow some or all Diebold voting systems, or
   all touchscreen voting machines, from the November elections.
   What Shelley decides will be a test of state authority over makers of
   the computers that will determine the electoral votes in California
   and other states. His decision also could send some of California's
   largest counties -- Alameda and San Diego -- scrambling for other ways
   to count votes six months from now.
   Voting experts say the industry's factories and printing plants
   probably can handle the extra demand for replacement voting machines
   and paper ballots, given at least three months' notice. But Shelley's
   decision also could unleash a barrage of lawsuits that could mire
   orders of equipment and ballots in legal wrangling over who will pay
   for them.
   At the center of those battles will be Jones Day. The firm's internal
   memoranda show its attorneys considered the idea of calling a new bit
   of uncertified voting software "experimental." State rules say local
   governments can use entire, experimental voting systems without state
   The lawyers also presented California officials who were seeking
   documents from Diebold with sweeping confidentiality agree-ments
   designed to hide flaws in Diebold software as much as its intellectual
   In drafts of a Feb. 13 letter to state regulators, Diebold's attorneys
   declared that Diebold makes no changes to electronic devices that the
   company and its predecessor have been programming for at least five
   The drafts show they staked out a firm position that a critical piece
   of Diebold's voting system -- its voter-card encoders -- didn't need
   national or state approval because they were commercial-off-the-shelf
   products, never modified by Diebold.
   But on the same day the letter was received, Diebold-hired techs were
   loading non-commercial Diebold software into voter-card encoders in a
   West Sacramento warehouse for shipment to Alameda and San Diego
   "They were still crunching and working on that software in the middle
   of February," said James Dunn, who worked as an assembly technician in
   Diebold's Sacramento warehouse.
   More than 600 of the devices froze or displayed unfamiliar screens and
   error messages on the morning of Super Tuesday, for failure rates of
   24 percent in Alameda County and about 40 percent in San Diego County.
   Diebold Elections executives were told in October by state officials
   to ensure every piece of its voting systems was fully tested and
   approved by national and state authorities.
   But Diebold resisted, arguing that the encoders didn't need testing
   and approval because they were a "peripheral" device on its voting
   systems and that the devices were common, commercial products.
   That was true for the hardware. But not the software.
   In fact, Diebold engineers were writing and rewriting the software at
   DESI headquarters in Texas and in Sacramento, supplying the latest
   versions two weeks before the encoders failed at high rates in the
   Super Tuesday presidential primary.
   Diebold eventually sent a sample of the encoders to an outside lab,
   but it didn't have time for more than cursory testing.
   The encoders were the only way that pollworkers were trained to create
   cards that let voters call up digital ballots on Diebold's touchscreen
   machines at more than 2,000 polling places in Alameda and San Diego
   Dunn says he's not surprised.
   As he and other techs raced to assemble the encoders out of tablet-PC
   screens, batteries and card-writing bases shipped to Sacramento from
   factories in Asia, Diebold officials kept supplying new versions of
   the software.
   In addition, the hardware components often failed to mate well,
   resulting in frozen screens. And when the batteries lost power, the
   devices lost their internal clock and operating settings, often
   Diebold's software as well.
   Dunn blames Diebold's rush to get the devices into the March 2
   elections and the lack of standard quality controls in assembling and
   configuring them. No instructions, no checklists, no tracking system.
   An outspoken tech complained about the poor quality controls and the
   failure of the devices when sapped of power.
   "He was gone. They fired him," Dunn said. "The attitude among the
   others there was, 'I don't care how screwed up these things are, I'm
   going to keep quiet. I'm not going to get fired.'"
   A Diebold software engineer pressed her superiors to allow testing of
   all the devices before they were shipped to Oakland, San Diego and
   elsewhere, but the tests -- successful creation of voter cards -- were
   performed only on the last 10-15 percent of the devices, Dunn said.
   "I got the feeling that the whole thing was rushed, that the products
   were brought to market too fast, and they did it because they had to
   get products to these counties before the election and they weren't
   ready," he said. "It wasn't fully developed. It was still prototyped,
   and they were out of time."
   Alameda County had paper provisional ballots on hand at polling places
   for use in lieu of the disabled touchscreens. At least 14 polling
   places ran out and turned away voters. San Diego County relied on one
   of Diebold's latest features, electronic provisional ballots, so
   larger numbers of voters were turned away at the polls.
   Diebold's claims to California elections officials, through its
   attorneys, that it doesn't modify the encoder software is blatantly
   untrue, according to Dunn and electronic-voting opponent Jim March.
   "That's a lie," March said.
   Last year, Seattle-based journalist Bev Harris found nine versions of
   Diebold encoder software on an unsecure Internet site. Software
   engineers such as March have been marveling at their multitude ever
   "When you vote, you are inserting a memory card containing up to 128k
   of God-only-knows-what. With no oversight, the 'smart cards' could
   contain some very stupid stuff indeed, or even deliberate subversion,"
   he said.
   Contact Ian Hoffman at .
   The Internal Documents
     Desi's New California Issues
< >
     Re: Alameda County Agreement
< >
     Issues Re: California Secretary of State Investigation
< >
     Memorandum Analyzing the Alameda County Agreement
< >
             2004 by MediaNews Group, Inc. and ANG Newspapers

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