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On January 4, 2007, the New York State Board of Elections voted to suspend Ciber from further testing of voting systems submitted to the New York State board for certification pending a thorough review of Ciber’s accreditation status. We also addressed requests to both the Election Assistance Commission and to Ciber for all of the relevant documents and reports concerning Ciber’s application to the EAC for accreditation as a testing laboratory.
Much to our surprise (well, maybe I’m not really surprised), EAC has still not provided any of the background documentation that we have requested. While giving lip service acknowledgement of our request, Tom Wilkey, now Executive Director of the US EAC and former Executive Director of the New York State Board of Elections, has completely stonewalled us. The New York State board felt compelled to make a formal Freedom of Information Act request. Mr. Wilkey’s only response so far is that the EAC is reviewing the issue and is deciding how to respond.
This failure to provide relevant information to a state agency, the first in the country to require testing to the 2005 standards, is truly outrageous and scandalous. Not only does it further delay New York’s efforts to come into compliance with the Help America Vote Act, it seriously prejudices the five voting system vendors who have made such a substantial investment in trying to obtain certification to the rigorous standards set by New York. In addition to requiring compliance with VVSG 2005, New York law requires a voter verifiable paper audit trail, prohibits devices or functionality potentially capable of internet, radio or wireless data communication, requires escrow of all software including source codes and authorizes disclosure in court proceedings; our regulations require full disclosure of all political contributions by vendors and their executives and set several other standards that are more rigorous than the VVSG.
While there is general agreement at the New York State Board that we should be looking to the EAC to assist and guide us in our investigation, we also made a formal request to Ciber for the same information. After all, they do hold a $3 million contract from our agency. There has been nothing but similar stonewalling from Ciber. Ciber’s last communication regarding our information request was that they were trying to co-ordinate a response with the EAC.
What’s going on here? Both the EAC and the unaccredited testing lab are refusing to open the curtain that hides their soiled laundry. Co-ordination of the response suggests that we are only going to receive a laundered version of the facts.
I have also become increasingly annoyed with Ciber’s use of the label “confidential competition-sensitive” on reports that they have prepared for our agency at our expense. You may recall that in November I circulated for comments Ciber’s first draft of their report to explain New York’s interpretation of the exceptions to the exemption from testing of Commercial Off the Shelf (COTS)software that is used in the voting machine itself as opposed to election management software that does not generate code used in the actual voting process. (Yes, “exception to the exemption” is a double negative that means that the COTS source code must be tested in those cases.)
Ciber was apparently miffed that I dared to subject the advice that they furnished to New York to public scrutiny. They added the “confidential competition sensitive” label to the second draft. I objected and requested that they remove the label. Ciber said they’d think about it, but ignored my request. When I received the final document that had been approved by both Ciber and our independent security review consultants, New York State Technical Enterprise Corp. (NYSTEC), I insisted that I be allowed to make the document public. Ciber balked. When I renewed what had become demands, Ciber’s attorney—yes their attorney—revised the technical report that the “experts” at Ciber and NYSTEC had determined to be final and said that he would not object to release of that report. (I have distributed that report, known as COTS Testing Version 4 to many). I then asked for an explanation why Version 3, the “final” report was still labeled confidential. I also gave formal notice that I would ask the commissioners to release the report. Last night Ciber’s in-house attorney wrote me that he agreed that there was nothing in the “final” report that was properly labeled competition sensitive. The New York commissioners voted the make the Version 3 “final” COTS report public today. I will send copies of Version 3 to the technical blogs and anyone else who requests it. I am still distressed, however, at Ciber’s efforts to stiffle discussion of the issue by improperly claiming confidentiality.
At today’s meeting of the New York State elections commissioners, while everyone deplored the stonewalling by EALC and Ciber, I requested authority to issue a subpoena to Ciber for all of the documents that we have requested. Republican Commissioner Helena Donohue blocked the subpoena by arguing that we should give Ciber additional time to respond to our request voluntarily. She said that she would reconsider issuing a subpoena at our next meeting scheduled for February 7.
In view of the collaboration between the EAC and Ciber, I am determined that we should not accept partial disclosure. New York should take a stand to end the veil of secrecy that shrouds the testing process.
Douglas A. Kellner
Co-Chair
New York State Board of Elections
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