New Jersey Judge Suppresses Report on Voting Machine Security

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Joseph Lorenzo Hall" <joehall () gmail com>
Date: October 2, 2008 10:32:03 AM EDT
To: "Dave Farber" <dave () farber net>
Subject: Re: New Jersey Judge Suppresses Report on Voting Machine  
Security

Oops, that looks like I wrote it... but it should be attributed to
Princeton CS Prof. Andrew Appel. best, Joe

On Thu, Oct 2, 2008 at 7:31 AM, Joseph Lorenzo Hall  
<joehall () gmail com> wrote:
> http://www.freedom-to-tinker.com/blog/appel/judge-suppresses-report-voting-machine-security
>
> # Judge Suppresses Report on Voting Machine Security
>
> A judge of the New Jersey Superior Court has prohibited the scheduled
> release of a report on the security and accuracy of the Sequoia AVC
> Advantage voting machine. Last June, Judge Linda Feinberg ordered
> Sequoia Voting Systems to turn over its source code to me (serving as
> an expert witness, assisted by a team of computer scientists) for a
> thorough examination. At that time she also ordered that we could
> publish our report 30 days after delivering it to the Court--which
> should have been today.
>
> Three weeks after we delivered the report, on September 24th Judge
> Feinberg ordered us not to release it. This is part of a lawsuit filed
> by the Rutgers Constitutional Litigation Clinic, seeking to
> decommission of all of New Jersey's voting computers. New Jersey
> mostly uses Sequoia AVC Advantage direct-recording electronic (DRE)
> models. None of those DREs can be audited: they do not produce a voter
> verified paper ballot that permit each voter to create a durable paper
> record of her electoral choices before casting her ballot
> electronically on a DRE. The legal basis for the lawsuit is quite
> simple: because there is no way to know whether the DRE voting
> computer is actually counting votes as cast, there is no proof that
> the voting computers comply with the constitution or with statutory
> law that require that all votes be counted as cast.
>
> The question of whether this report can legally be suppressed was
> already argued once in this Court, in June 2008, and the Court
> concluded then that it should be released; I will discuss this below.
> But as a matter of basic policy--of running a democracy--the public
> and legislators who want to know the basic facts about the reliability
> of their elections need to be able to read reports such as this one.
> Members of the New Jersey Legislature--who need to act now because the
> NJ Secretary of State is not in compliance with laws the legislature
> passed in 2005--have asked to read this report, but they are precluded
> by the Court's order. Members of the public must decide now, in time
> to request an absentee ballot, whether to cast their ballot by
> absentee (counted by optical scan) or to vote on paperless DRE voting
> machines. Citizens also need information so that they can communicate
> to their legislators their opinions about how New Jersey should
> conduct elections. Even the Governor and the Secretary of State of New
> Jersey are not permitted, by the Court's order, to read this report in
> order to inform their policy making.
>
> Examination of the AVC Advantage. In the spring of 2008, Judge Linda
> Feinberg ordered the defendants (officials of the State of New Jersey)
> to provide to the plaintiffs: (a) Sequoia AVC Advantage voting
> machines, (b) the source code to those voting machines, and (c) other
> specified information. The Sequoia Voting Systems company, which had
> not been a party to the lawsuit, objected to the examination of their
> source code by the plaintiffs' experts, on the grounds that the source
> code contained trade secrets. The Court recognized that concern, and
> crafted a Protective Order that permitted the plaintiffs' experts to
> examine the source code while protecting the trade secrets within it.
> However, the Court Order, issued by Judge Feinberg on June 20, does
> permit the plaintiffs' experts to release this report to the public at
> a specified time (which has now arrived). In fact, the clause of this
> Order that permits the release of the report was the subject of
> lengthy legal argument in May-June 2008, and the plaintiffs' experts
> were not willing to examine the AVC Advantage machines under
> conditions that prevent public discussion of their findings.
>
> I served as the plaintiffs' expert witness and led an examination team
> including myself and 5 other computer scientists (Maia Ginsburg, Harri
> Hursti, Brian Kernighan, Chris Richards, and Gang Tan). We examined
> the voting machines and source code during July-August 2008. On
> September 2nd we provided to the Court (and to the defendants and to
> Sequoia) a lengthy report concerning the accuracy and security of the
> Sequioa AVC Advantage. The terms of the Court's Protective Order of
> June 20 permit us to release the report today, October 2nd.
>
> However, on September 24 Judge Feinberg, "with great reluctance,"
> orally ordered the plaintiffs not to release the report on October
> 2nd, and not to publicly discuss their conclusions from the study. She
> did so after the attorney for Sequoia grossly mischaracterized our
> report. In order to respect the Judge's temporary stay, I cannot now
> comment further on what the report does contain.
>
> The plaintiffs are deeply troubled by the Court's issuance of what is
> essentially a temporary restraining order restricting speech, without
> any motion or briefing whatsoever. Issuing such an order is an extreme
> measure, which should be done only in rare circumstances, and only if
> the moving party has satisfied its high burden of showing both
> imminent harm and likelihood of success on the merits. Those two
> requirements have not been satisfied, nor can they be. The plaintiffs
> have asked the Court to reconsider her decision to suppress our
> report. The Court will likely hear arguments on this issue sometime in
> October. We hope and expect that the Court will soon permit
> publication of our report.
>
>
> --
> Joseph Lorenzo Hall
> Postdoctoral Research Fellow
> UC Berkeley School of Information
> Princeton University Center for Information Technology Policy
> http://josephhall.org/



--
Joseph Lorenzo Hall
Postdoctoral Research Fellow
UC Berkeley School of Information
Princeton University Center for Information Technology Policy
http://josephhall.org/




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