Not Quite a Blog

I've got two juicy things to report about recent happenings with Diebold Election Systems:

• In Florida, Diebold is claiming that they will "move to protect their proprietary interests" if any other competing vendor submits a voting system component for state certification without Diebold's prior written authorization that interoperates with Diebold's equipment.

• In California, most people familiar with election-related news have heard that Diebold's application for certification of the TSx was rejected on 27 July 2005 by the SoS due to a 20% failure rate (see "Diebold's problems worse than reported, tests find"). However, Diebold immediately announced that it planned to fix the problems and resubmit within 30 days. That sounds like quite the quick turn-around considering any code changes would have to be requalified at the federal level, no? Well, that's not the complete story and it does appear that they might be able to resubmit in that timeframe.

(details after the jump)

Follow up:

I don't have much time, unfortunately, so I'll keep this quick.

Diebold and interoperable products in Florida

As reported by Kevin Connolly in the Orlando Sentinel ("Vote-machine idea runs into corporate problem"):

"The commingling of other election-related products with [Diebold products] is at the user's own risk," Diebold officials wrote in a "product-use advisory" to county officials. "Buyers of [Diebold products] should also be aware that the products carry licensing and intellectual property rights and restrictions."

Diebold's products can't be used with "any third party vendor's certification" process without the company's "prior written authorization," a company official wrote in a letter to the state.

Here is a copy of the letter Diebold sent to the Department of State in Florida: "RE: DESI Equipment on Loan to the State of Florida Division of Elections"

Many of us in the election technology community were wondering how it would be possible to use equipment like the Automark ballot marking device within another vendor's election system infrastructure (the Automark is exclusively marketed and sold by ES&S, a Diebold competitor). Practically, it wouldn't be that hard to reverse-engineer Diebold's optical-scan ballots so that the Automark could successfully mark a Diebold op-scan ballot (remember that since no vote information is stored on the Automark itself, Diebold's file formats would not also have to be reverse engineered).

However, operationally, a number of states (including California and Florida) require that voting systems pass state certification testing of an end-to-end election system before they can be used in that state. As long as a county in one of these states plans on using the Automark with ES&S optical-scan machines and election management software, they'll be fine as ES&S can submit the system for state certification. However, what if a county uses another vendor's optical-scan equipment, say Diebold, and would like to simply purchase one Automark device for each precinct in order to be compliant with HAVA's accessibility provisions by 1 January 2005? Well, the hybrid system of Diebold's optical scan equipment with Automark ballot marking devices would still have to be state-certified in order to be used as an end-to-end voting system.

This letter confirms that it's not merely a matter of sweet-talking Diebold into allowing a multi-vendor system to be submitted for certification. In fact, they state that they will take "the necessary steps to protect [their] proprietary interests." This sounds like it might be a combination of trade secret protection and source confusion (trademark). That is, I expect that Diebold would file a lawsuit against any vendor that attempted to submit an interoperable product with their system as: 1) information that they would need to submit a complete application of the hybrid system would implicate trade secrets they have in their system that are protected by NDAs during the certification process and; 2) if something were to go wrong with the interoperable product during an election, this might implicate Diebold's reputation (or at least the Automark could be confused as having been endorsed by Diebold).

Can Diebold resubmit in California within 30 days?

Finally, as I mentioned a bit above, there were copious problems with the Diebold TSx system that resulted in the rejection of its certification application at the end of last month. These problems break down roughly into problems with the AccuView VVPAT printer attachment and, more importantly, with system freezes where the tabulator unit would not respond.

It's conceivable that changes could be made to the printer attachment that wouldn't necessitate re-qualification and the federal ITA level. However, I can't think of a way to fix the system freezes without changing lines of code. If they change lines of code (or the hardware configuration or the firmware) they would need to get the system requalified at the federal level before resubmitting their state certification application. (Note: Former CA SoS Kevin Shelley's order of 30 April 2004 states that all DREs must be federally tested and qualified before they can be used in California.). This wouldn't be a full federal qualification but what is called a "delta update" where a change in a previously qualified system is qualified and only as much of the underlying system has to be tested.

So how does Diebold plan to pull this off?

Today I asked a high-level representative of the SoS's elections office what the deal is here. Apparently, Diebold had two applications for certification before the California SoS. The recently rejected application was for an older version of the TSx hardware and software. They had suspended an application for certification of their newer system (firmware 4.6.2) while they focused on trying to get the older version through state certification. They are allowed to re-activate a certification application at any time, and this is what they're expected to do. However, the system submitted under this newer application must be identical to that which was federally qualified on 16 May 2005 (NASED number: N-1-06-12-22-008).