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|Judge Suppresses Report on Voting Machine Security|
Judge Suppresses Report on Voting Machine Security
By Andrew Appel - Posted on October 2nd, 2008 at 6:45 am
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.
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