CA LAW: EVERYONE Must be able to attempt Diebold Hack Test!!!!!!

UPDATE ON CALIFORNIA DIEBOLD VOTING MACHINE "HACK" TESTING

Letter faxed and mailed Dec. 9, 2005
To: California Secretary of State, Bruce McDannold, cc: Bruce McPherson
From: John S. Baker, Atty at Law, Dorsey & Whitney So. Cal. Office

I represent Black Box Voting, Inc., a non-partisan, non-profit 501c(3)
corporation. On June 16, 2005, Black Box Voting sent a request to
examine the Diebold Election Systems component: the programmed
electronic ballad box memory cards used in optical scan and touch
screen voting systems (Component). This request was made pursuant
to California Elections Code Section 19202 (19202 Request), which
provides:

ANY PERSON OR CORPORATION OWNING OR BEING INTERESTED IN ANY
VOTING SYSTEM OR PART OF A VOTING SYSTEM MAY APPLY TO THE
SECRETARY OF STATE TO EXAMINE IT AND REPORT ON ITS ACCURACY
AND EFFICIENCY TO FULFILL TIS PURPOSE. THE SECRETARY OF STATE
SHALL COMPLETE HIS EXAMINATION WITHOUT UNDUE DELAY.


In the 19202 Request, Black Box Voting asked that the Component be
evaluated for five possible flaws with respect to: the latest optical scan
systems (firm wear 1.96.4); the paperless touch screen, as used in Alameda
County on November 2, 2004; the new TSx system proposed for certification;
and any older optical scan model still in use in California. A copy of the 19202
Request is attached for your convenience.

Even though Section 19202 requires the Secretary of State to complete his
or her examination without "undue delay", Black Box Voting did not receive
a response to its Request until Saturday, November 19, 2005. In that e-mail
response, you indicated that the Secretary of State would afford Black Box
Voting an opportunity to demonstrate the vulnerabilities with the Diebold
AccuVote-Os, based on the exploits outlined in the Hursti report. You also
stated that Diebold agreed to make their equipment and their staff available
for such tests on November 30, 2005, at the California Secretary of State's
office, 1500 11th Street, Sacramento. In connection with your response,
you attached a document that provided the "actual protocol and conditions"
(Protocols) for the proposed test.

Unfortunately, the Protocols, which were written by Diebold, were
seriously flawed, because they contemplated testing equipment that
was specifically hand-picked by Diebold, rather than randomly sampling
voting machines that were currently in existence and being utilized. The
proposed test system (Optical Scan terminal 1.96.6) was of a type that had
not been certified or used in California and was not an item requested for
examination in my client's 19202 request. However, my clients would be
willing to evaluate this item, but only in addition to the requested items. The
test also contemplated that Diebold would control all of the conditions,
despite the fact that it had a vested interest in the outcome of the test and
would stand to lose millions of dollars if the test showed flaws in the voting
systems created by Diebold. My clients have other concerns with the initial
test protocols; for example the time limits were listed as "required" but were
left blank. We can discuss these issues once a proper dialog on these issues
is established. A copy of your response and the Protocols are attached as
Exhibit 2.

On November 22, 2005, less than two business days after you sent your
response, you sent an e-mail at 5:11 p.m. stating that if Black Box Voting
would like to participate in the test it would have to respond by 10:00 a.m.
the following morning. You also said that the time of the test would be moved
from 8:00 a.m. to 10:30 a.m. A true and correct copy of your November 22, 2005
response is attached as Exhibit 3.

Less than three hours after receiving your November 22 e-mail, Black Box
Voting responded by suggesting that the Protocols be changed by selecting
machines from certain County election offices which have not shown a bias
for Diebold. Unfortunately, you have never responded to this correspondence
or permitted the inspection, despite Black Box Voting's reasonable request under
California Election Code Section 19202. As such, the Secretary of State has
clearly violated Section 19202.

Accordingly, please contact me upon receipt of this letter as to whether
the Secretary of State will allow Black Box Voting's 19202 Inspection and,
if so, which Protocols he is agreeable to. If we do not receive a response
to this letter by December 16, 2005, Black Box Voting will be forced to pursue
other available legal remedies.

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END OF ATTORNEY LETTER
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From Black Box Voting:

AT ISSUE
Procedures to be negotiated include:

1) The secrecy provisions written by Diebold -- Black Box Voting takes the
position that all facets of the test should be open to the public and to the media

2) Access and time limits -- Diebold wrote that a time limit would be set but
did not specify whether it would be 30 seconds or two weeks. Diebold left
a "blank" after the time limit item

Diebold involvement in writing procedures sent to Black Box Voting by Calif.
Secretary of state:

The California Secretary of State provided written testing procedures to
Black Box Voting in the form of a Word Document.

A review of the "properties" feature on this electronic document reveals that
it was written by Steve Pelletier of Diebold Election Systems, then sent to
Black Box Voting from the Secretary of State's office as the Secretary of State's
proposed testing protocols.

It is the position of Black Box Voting that the vendor should not be involved in
nor control the testing of this system.

* * * END * * *Black Box Voting

19205. The Secretary of State shall establish the specifications
for and the regulations governing voting machines, voting devices,
vote tabulating devices, and any software used for each, including
the programs and procedures for vote tabulating and testing. The
criteria for establishing the specifications and regulations shall
include, but not be limited to, the following:
(a) The machine or device and its software shall be suitable for
the purpose for which it is intended.
(b) The system shall preserve the secrecy of the ballot.
(c) The system shall be safe from fraud or manipulation.

“On June 16, 2005, Black Box Voting sent a request to examine the Diebold Election Systems component: the programmed electronic ballad box memory cards used in optical scan and touch screen voting systems (Component).

“Even though Section 19202 requires the Secretary of State to complete his or her examination without "undue delay", Black Box Voting did not receive a response to its Request until Saturday, November 19, 2005.

“On November 22, 2005, less than two business days after you sent your response, you sent an e-mail at 5:11 p.m. stating that if Black Box Voting would like to participate in the test it would have to respond by 10:00 a.m. the following morning. You also said that the time of the test would be moved from 8:00 a.m. to 10:30 a.m. ...

“Less than three hours after receiving your November 22 e-mail, Black Box
Voting responded by suggesting that the Protocols be changed by selecting
machines from certain County election offices which have not shown a bias
for Diebold. Unfortunately, you have never responded to this correspondence
or permitted the inspection, despite Black Box Voting's reasonable request under
California Election Code Section 19202. As such, the Secretary of State has
clearly violated Section 19202.”

“A review of the "properties" feature on this electronic document reveals that it was written by Steve Pelletier of Diebold Election Systems, then sent to Black Box Voting from the Secretary of State's office as the Secretary of State's proposed testing protocols.”

"...they contemplated testing equipment that was specifically hand-picked by Diebold, rather than randomly sampling voting machines that were currently in existence and being utilized. The proposed test system (Optical Scan terminal 1.96.6) was of a type that had not been certified or used in California and was not an item requested for examination in my client's 19202 request.