Microsoft Says – We Won’t Escrow
Software giant tells New York - “Forget about it”
On Friday, April 13, 2007, the New York State Board of Elections notified vendors hoping to certify voting systems in the state that Microsoft would not comply with the source code escrow requirements of state election law. Microsoft Windows operating systems and applications are used by several DREs, Ballot Marking Devices, and all Election Management Systems (EMS) currently submitted for New York State certification. With Microsoft unwilling to place source code in escrow, voting systems which use Microsoft products are not eligible for certification and use in the state.
New York State Election Law, Section 7-208 states that the voting system vendors "shall place into escrow with the state board of elections a complete copy of all programming, source coding and software employed by the voting machine, system or equipment." Voting system vendors are also required to file a waiver with state and local Boards of Elections "which shall waive all rights of the vendor or manufacturer to assert intellectual property or trade secret rights in any court of competent jurisdiction hearing a challenge to the results of any election.", and must also file "a consent to having and cooperating in the testing of any programming, source coding, firmware, or software, pursuant to an order of any board of elections or court of competent jurisdiction."
The State Board had been holding discussions with Microsoft in order to determine how compliance with State Election Law would be met. The Board also submitted a list of questions to Microsoft about the escrow issue. In these discussions and answers, the software giant indicated that it does not and will not put its source code in escrow accounts, and it does not and will not escrow source code through any third parties or the National Institute of Standards and Technology. In other words, the Redmond behemoth is telling New York State, and any other states that have a high legal bar for escrow and review of software source code, “Forget about it.” Microsoft, which has only recently begun to weigh in on voting system software proprietary claims, is taking the same stance that voting machine vendors have always taken – the public cannot have access to the software we vote on.
In its notice, the State Board of Elections told voting system vendors “Be advised that you should prepare to take whatever actions you deem necessary to comply with the requirements of Election Law Section 7-208 in order to obtain certification.” If the State Board enforces the law, that means Microsoft software must be removed from voting systems, or the system can’t be certified for use in New York State. Of the systems submitted so far to the state, the Avante and Sequoia Advantage DREs and the Automark ballot marking device use MS Windows operating systems. The same goes for submitted EMS systems from all vendors – Sequoia, Avante, ES&S, Diebold, and Liberty – which use not only Windows but MS Access, SQL Server, and Office products such as Word and Excel.
But an operating system, or a database system as used by the EMS products, is not something you just casually change – it means a complete and total rewrite of all software. We’re not talking about going back to Square One; this is going back to Square Zero. It simply can’t be done within a few months, and none of the systems using these products is likely to be used in New York State as long as the State Board of Elections and the Legislature remain firm on protecting New York voters.
But will they? One of the questions the State Board of Elections asked Microsoft was: “If there are significant problems with the law as written and those problems would preclude us from agreeing to an escrow arrangement, are there any changes to the law that Microsoft would suggest?” Ah yes, let’s be sure to let the private corporations of the world have their say in how our election laws can be changed to better serve their interests. Stay tuned.
On Friday, April 13, 2007, the New York State Board of Elections notified vendors hoping to certify voting systems in the state that Microsoft would not comply with the source code escrow requirements of state election law. Microsoft Windows operating systems and applications are used by several DREs, Ballot Marking Devices, and all Election Management Systems (EMS) currently submitted for New York State certification. With Microsoft unwilling to place source code in escrow, voting systems which use Microsoft products are not eligible for certification and use in the state.
New York State Election Law, Section 7-208 states that the voting system vendors "shall place into escrow with the state board of elections a complete copy of all programming, source coding and software employed by the voting machine, system or equipment." Voting system vendors are also required to file a waiver with state and local Boards of Elections "which shall waive all rights of the vendor or manufacturer to assert intellectual property or trade secret rights in any court of competent jurisdiction hearing a challenge to the results of any election.", and must also file "a consent to having and cooperating in the testing of any programming, source coding, firmware, or software, pursuant to an order of any board of elections or court of competent jurisdiction."
The State Board had been holding discussions with Microsoft in order to determine how compliance with State Election Law would be met. The Board also submitted a list of questions to Microsoft about the escrow issue. In these discussions and answers, the software giant indicated that it does not and will not put its source code in escrow accounts, and it does not and will not escrow source code through any third parties or the National Institute of Standards and Technology. In other words, the Redmond behemoth is telling New York State, and any other states that have a high legal bar for escrow and review of software source code, “Forget about it.” Microsoft, which has only recently begun to weigh in on voting system software proprietary claims, is taking the same stance that voting machine vendors have always taken – the public cannot have access to the software we vote on.
In its notice, the State Board of Elections told voting system vendors “Be advised that you should prepare to take whatever actions you deem necessary to comply with the requirements of Election Law Section 7-208 in order to obtain certification.” If the State Board enforces the law, that means Microsoft software must be removed from voting systems, or the system can’t be certified for use in New York State. Of the systems submitted so far to the state, the Avante and Sequoia Advantage DREs and the Automark ballot marking device use MS Windows operating systems. The same goes for submitted EMS systems from all vendors – Sequoia, Avante, ES&S, Diebold, and Liberty – which use not only Windows but MS Access, SQL Server, and Office products such as Word and Excel.
But an operating system, or a database system as used by the EMS products, is not something you just casually change – it means a complete and total rewrite of all software. We’re not talking about going back to Square One; this is going back to Square Zero. It simply can’t be done within a few months, and none of the systems using these products is likely to be used in New York State as long as the State Board of Elections and the Legislature remain firm on protecting New York voters.
But will they? One of the questions the State Board of Elections asked Microsoft was: “If there are significant problems with the law as written and those problems would preclude us from agreeing to an escrow arrangement, are there any changes to the law that Microsoft would suggest?” Ah yes, let’s be sure to let the private corporations of the world have their say in how our election laws can be changed to better serve their interests. Stay tuned.
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