Wednesday, June 13, 2007

EFF supports Holt's bill - You should too!

Today, the Electronic Frontier Foundation (EFF), a group with an excellent record of protecting citizens rights, came out strongly in favor of Rush Holt's bill HR 811. Here's one of the opening paragraphs:

HR 811 is not perfect. Few bills are. And honest debate about a matter as important as election integrity is always helpful to the process. However, much of the ostensibly pro-transparency criticism of HR 811 has sadly taken a detour away from being useful and descended into hyperbole, fear-mongering, and uninformed posturing. Returning to the substance of the bill and its actual consequences is long overdue.
EFF then proceeds to list common objections, and rebuts them with specifics. For example:

Require the disclosure of voting system source code in limited circumstances. HR 811 would, for the first time under federal law, explicitly mandate the disclosure of voting system source code to certain "qualified persons," identified as (among others) parties to litigation and individuals who "review[], analyze[], or report[] on the technology solely for an academic, scientific, technological, or other investigation or inquiry concerning the accuracy or integrity of the technology." See proposed Sec. 301(a)(8)(C). Individuals seeking such access would, in some circumstances, be required to sign a non-disclosure agreement. Just as now, however, individuals who lawfully acquire voting system source code independent of the (non-exclusive) procedures set forth by HR 811 (see, for example, Avi Rubin's groundbreaking analysis of Diebold source code that was leaked onto the Internet) would be free to analyze the code accordingly. States wanting even greater transparency could mandate broader disclosure requirements (see proposed Sec. 301(a)(8)(B)(ii)(II)), including disposing of any non-disclosure requirement or even mandating the use of open source software. Moreover, vendors themselves could dispense with the non-disclosure agreement requirement, either by explicitly granting permission to share otherwise secret source code or by utilizing open source systems.
That's not the argument Brad Friedman is going to publish at BradBlog. He's not going to publish anything in favor of passing this bill because he believes no bill that still allows DREs should go forward. In a perfect world, I'd agree with him. But we all know this is so far from a perfect world that such a stance is not just ignorant, but dangerous. We need serious people who understand what we can and can't do legislatively at this point in time. As EFF says on this matter:

* "HR 811 doesn't ban all DREs." True, but misleading. DREs, paperless or otherwise, are already permitted under federal law. HR 811 would ban the use of paperless DREs in federal elections unless they are retrofitted with printers that generate voter-verifiable paper ballots. An outright ban on DREs may or may not be possible with this Congress, but it is irrelevant to whether or not this bill should pass. Rep. Holt's strategy -- to convince Congress of the need to improve transparency in U.S. elections, regardless of technology -- is a sound one, one that many volunteers have expended extraordinary efforts to bring to fruition and one that could be on the verge of succeeding. Nothing has prevented or currently prevents now-vocal critics who are calling for an outright DRE ban from going through the process of drafting the appropriate legislative proposal and then soliciting the necessary support for it. But attempting to derail or hijack HR 811 as a vehicle to ram through an unlikely-to-pass DRE ban unnecessarily risks the passage of other important substantive requirements. And once again, nothing in HR 811 prohibits states from limiting the use of DREs of any kind or banning them altogether.
So those who are so sure they can get a banned passed should start in their own states, where such is far more likely to be possible than at the federal level at this point in time.

One of the statements I've written about at length is the ridiculous notion that Holt's bill somehow institutionalizes the use of "secret code" for our elections. This is completely false, as the EFF explains:

* "HR 811 reinforces secret vote counting." False. On the contrary, HR 811, if passed, would begin to open up the process. Federal law already permits the use of paperless DREs. Only 27 states currently require the use of voter-verified paper ballots (or voter-verified audit trails), and only 13 of those require audits. The lack of robust federal requirements, and the failure of straggler states to implement restrictions of their own, has led to the widespread use of suspect voting equipment like DREs. If enacted, HR 811 would, for the first time, place real restrictions on the use of electronic voting equipment. Again, if states think that HR 811's requirements aren't robust enough, they can pass legislation of their own.

* "HR 811 prohibits the disclosure of voting system software." False. HR 811 would for the first time federally mandate the disclosure of election-specific source code. The disclosure provision that emerged from committee is certainly not as broad as it could be. Public disclosure is not required, as the original language of HR 811 demanded. Yet as discussed above, HR 811 would explicitly protect the right of access for certain reviewers who currently have no such such guaranteed right and who have been routinely denied access to any software in some of the many battles that EFF has fought in the courts and elsewhere since 2003. The software industry fought long and hard behind the scenes to scuttle any disclosure requirement. That the current disclosure language emerged from committee at all is a testament to the many individuals, organizations, and lawmakers dedicated to election integrity who stood up in support of the bill instead of trying to tear it down. Make no mistake: this disclosure requirement is simply one of many initial steps in a long struggle towards full transparency of elections. But it is a critically important step, nonetheless. And once again, states may mandate any kind of additional disclosure, including an open source requirement, that they wish.

* "HR 811 makes voting system source code a trade secret." False, and demonstrates a profound misunderstanding of trade secrecy law. HR 811 does not, in any way, "create" trade secrets or transform voting system source code into a trade secret. Information either meets trade secret criteria -- created by each individual state, and not the federal government -- or it doesn't. As EFF and others have repeatedly experienced, the lack of guaranteed access to this code due to trade secrecy claims has been a major impediment to litigation over voting system failures, like the ongoing litigation brought by voters in Sarasota County, Florida, for which EFF serves as co-counsel. Far from "creating" trade secrets, HR 811 actually limits the protections offered by state trade secrecy laws to voting system source code. For example, the bill identifies "trade secrets" as one of the categories of information, protected in some circumstances by a mandatory non-disclosure agreement, that must be disclosed to qualified individuals who would have the newly-created right to review the software. Absent HR 811, litigants (such as those involved in the ongoing Sarasota County litigation) and computer science experts interesting in testing system integrity would have no guarantee of obtaining access to the source code at all. Individuals who do not enter into the non-disclosure agreements discussed in HR 811 would not be affected, and efforts to obtain access to code by other means would proceed as they always have. Critics may desire greater access to this code, as would EFF, but assertions that the bill would somehow "make the source code a government-recognized trade secret" are disingenuous. And here too, states can decide to step in and limit or even rescind the protections offered by their own trade secrecy laws.
EFF ends their piece with a resounding endorsement of Holt's bill:

EFF strongly supports the passage of HR 811 and hopes that you will as well. Don't just take my word for it: read the bill for yourself and then make your own decision. If you don't think that HR 811 goes far enough, then push for passage of complementary legislation, either in Congress or with your own state legislatures. EFF will continue to support sensible legislative proposals that can build on the foundation of HR 811. But whatever you do, don't fall for the false choice offered in the breathless rhetoric of the "all or nothing" contingent. Don't let the perfect be the enemy of the good. And HR 811 is good.
It's time the grownups among us took the floor away from the petulant children who don't understand that a perfect bill is not on the table.

Please, call your Congressperson today. Call the DC office for the most professional treatment. Find who your Congressperson is and their contact info by going to and entering your address.

Tell them, "Please support Rush Holt's election reform bill, HR 811." That's all you need to say. It takes one minute. Please do this RIGHT AWAY, as the vote on the bill is imminent.

Thank you for caring enough to step outside your comfort zone to do this. Nothing is more important to the preservation of what's left of our Democracy than protecting our vote. All other issues are secondary to this one.


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