Re: Re: SB 1376 passes senate...

From: Steve Chessin <steve_dot_chessin_at_sun_dot_com>
Date: Thu Aug 19 2004 - 23:55:03 CDT

>Date: Wed, 18 Aug 2004 12:58:20 -0400
>From: David Mertz <voting-project@gnosis.cx>
>Subject: Re: [voting-project] Re: SB 1376 passes senate...
>
>> (b) A civil action may be brought pursuant to this section for a
>> civil penalty not to exceed fifty thousand dollars ($50,000) for each
>> act and for injunctive relief, if appropriate.
>
>Say a Senate Candidate--who is spending millions on a rac--finds a
>hacker (e.g. maybe an insider at one of the proprietary firms), and
>offers him/her $500,000 to alter the DREs to make sure Candidate is
>elected. Does it seem likely that Hacker will say: "I -would- tamper
>with the machines, but I'm too worried about the possibility of being
>fined 1/10th of the amount you're paying me."
>
>This penalty portion is utterly trivial. It's barely a bump on the
>road of doing (corrupt) business.
>
>Similarly for a voting systems vendor who gets a multi-million dollar
>contract, of course. Directly modifying machines to throw elections
>probably has criminal penalties apart from this civil fine. But just
>using idiotic security protocols, even knowingly, isn't quite vote
>fraud. And facing a $50k fine for such idiocy isn't much if it comes
>out of a $30M contract.
>
>Now if it were, say, $50k per compromised vote... well, that's starting
>to be a deterrent. But one "act" can effect millions of votes.

As I read it, every machine you tamper with is considered an act:

(5) Knowingly, and without authorization, inserts or causes the
insertion of uncertified hardware, software, or firmware, for
whatever purpose, into any voting machine, voting device, voting
system, vote tabulating device, or ballot tally software.

For example, Santa Clara County has about 5000 voting machines, which
would put the total fine to $250M. (If you just corrupt the central
tallying machine, then that's "just" a $50K fine, but that would be
easily detectable by adding up all the precinct results by adding
machine and comparing that to the county total.)

But this just allows the SoS, the AG, or any local elections official
to bring a civil action for these acts. There are already criminal
penalties
<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18560-18578> for stealing or attempting to steal an election:

[...]

18564. Any person is guilty of a felony, punishable by imprisonment
in a state prison for two, three, or four years who, before or
during an election:
   (a) Tampers with, interferes with, or attempts to interfere with,
the correct operation of, or willfully damages in order to prevent
the use of, any voting machine, voting device, voting system, vote
tabulating device, or ballot tally software program source codes.
   (b) Interferes or attempts to interfere with the secrecy of voting
or ballot tally software program source codes.
   (c) Knowingly, and without authorization, makes or has in his or
her possession a key to a voting machine that has been adopted and
will be used in elections in this state.
   (d) Willfully substitutes or attempts to substitute forged or
counterfeit ballot tally software program source codes.

[...]

18566. Every person is punishable by imprisonment in the state
prison for two, three, or four years who:
   (a) Forges or counterfeits returns of an election purported to
have been held at a precinct where no election was in fact held.
   (b) Willfully substitutes forged or counterfeit returns of
election in the place of true returns for a precinct where an
election was actually held.

18567. Every person who willfully adds to or subtracts from the
votes actually cast at an election, in any official or unofficial
returns, or who alters the returns, is punishable by imprisonment in
the state prison for 16 months or two or three years.

[...]

The main impact (here) of SB 1376 is that it makes election officials
and their staff, and the vendors and their staff, liable if they
"knowingly, and without authorization" load uncertified software into
their machines, as an audit of California's voting equipment last year
proved had happened. That never existed before. As for the other
actions mentioned in SB 1736 that already have criminal penalties,
civil cases just require meeting a "preponderance of the evidence"
standard; criminal cases require meeting the higher "beyond a
reasonable doubt" standard.

--Steve
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Received on Tue Aug 31 23:17:17 2004

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