With this year's New York Senate and Assembly session now ended, local voting activists are chalking up a victory for the public at the expense of Microsoft Corp. and the e-voting industry.
The activists had feared that Microsoft and a handful of e-voting device vendors would quietly weaken the state's strict e-voting software escrow law before the current legislative session ended on Friday.
Approved two years ago by the legislature, the law requires voting system vendors to place all source code and other related software in escrow for the New York State Board of Elections so it can be examined as needed. The law also dictates that a voting system vendor waives all intellectual property and trade secret rights should the software need to be reviewed in court.
Microsoft, whose Windows software is used in some of the vendors' devices, sought to amend the law to avoid the strict escrow provisions. That move riled Empire State voting activists such as Bo Lipari, executive director of New Yorkers for Verified Voting, who publicized Microsoft's efforts in his blog the week before the session ended. By focusing on Microsoft's plans, concerned citizens created a groundswell of support in the legislature to ensure the law remained untouched, Lipari said.
"We won for a change," he said on Friday. He estimated that about 3,000 constituent calls had been placed with the legislature about the issue. "There was a huge outpouring of support and the legislature noticed this. It was a forceful way to remind them to re-affirm their commitment to these strong laws."
New York State Assemblywoman Barbara Lifton, a Democrat from the 125th Assembly District, echoed that sentiment.
"The voting machine vendors have known for two years what our laws said," Lifton said Thursday. "Now they're saying that those parts of their systems using Microsoft software have to be proprietary? It's just wrong. We're holding firm on our current state law which calls for open source code."
But Lipari had his worries before the matter was resolved. Earlier this month, in his blog, he called Microsoft the "800-pound gorilla of software development" as he called attention to its plans. Microsoft, he said, had been steadily lobbying legislators and circulating an unsigned document that would redefine the law.
"These changes would gut the source code escrow and review provisions provided in our current law, which were fought for and won by election integrity activists around the state and adopted by the legislature in June 2005," he warned at the time.
He noted that the amendment would have redefined the escrow law to apply only to "election-dedicated voting system technology." Any piece of code that hadn't been specifically designed for use in a voting system would be exempt from the requirement.
"Microsoft's proposed change to state law would effectively render our current requirements for escrow and the ability for independent review of source code in the event of disputes completely meaningless - and with it the protections the public fought so hard for," Lipari said.
Microsoft wasn't alone, Lipari said in an interview. Voting machine maker Sequoia Voting Systems and others also tried to weaken the state's escrow laws, he said. He was especially worried that in the last week of the legislative session many bills were being worked on, and it would have been easy to slip in language to change the escrow law.
"This was a very dangerous week for all sorts of damage to be done," he said. "The fact that we caught this early, and brought it out into the light of day made it much harder to get away with."
Microsoft's Albany-based lobbyist deferred comment on the issue. For its part, Microsoft declined to confirm it had drafted the document in Lipari's possession.
"We don't specifically discuss our lobbying efforts, but we have been in constructive dialogue with the New York State Board of Elections," a Microsoft spokeswoman said last week.
"Microsoft appreciates and understands the situation New York State is in with regard to compliance with the provision in its election law requiring voting machine software source code to be held in escrow," she said in an e-mail. "At present, Microsoft does not make its source code available for escrow under the election law because of our concern that this code could be disclosed to third parties without adequate protections for our intellectual property rights."
A spokeswoman for Sequoia Voting Systems, which uses some of Microsoft's development technology in its devices, defended her company's lobbying. "We also vigorously protect our intellectual property and trade secrets as well as the overall security of our voting system," she said. Sequoia currently complies with all current state and federal review and escrow laws, she noted.
Over the past year, she said Sequoia has worked with the Elections Board to satisfy its requirements without disclosing any third-party proprietary source code such as Microsoft's. After the legislature's session closed, she expressed frustration, claiming the issue remains unresolved.
"We would ideally like to work with the board to reach a solution that works for all parties involved," she said Friday.
A spokesman for the New York State Elections Board downplayed the lobbying efforts. "The voting system vendors have been discussing this with us for some time," he said last week. "We continue to have a dialogue on the escrow subject."
That includes the board taking in and reviewing comments from voting rights advocates, as well as other interested parties, he said.
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