BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Norma J. Torres, Chair
BILL NO: AB 829 HEARING DATE: 6/4/13
AUTHOR: FONG ANALYSIS BY: Darren Chesin
AMENDED: AS INTRODUCED
FISCAL: YES
SUBJECT
Election management systems
DESCRIPTION
Existing law requires an exact copy of the approved source code
for each component of a voting system and a ballot marking
system, including the complete build and configuration
instructions and related documents for compiling the source code
into object code, to be deposited into an approved escrow
facility.
Existing law requires the Secretary of State (SOS) to adopt
regulations relating to the following:
The definition of the source codes for a voting system and a
ballot marking system;
Specifications for the escrow facility, including security and
environmental specifications necessary for the preservation of
voting system and ballot marking system source codes;
Procedures for submitting voting system and ballot marking
system source codes; and,
Criteria for access to voting system and ballot marking system
source codes.
Existing law permits the SOS reasonable access to the materials
placed in escrow under the following circumstances:
In the course of an investigation or prosecution regarding
vote counting or ballot marking equipment or procedures;
Upon a finding by the SOS that an escrow facility or company
is unable or unwilling to maintain materials in escrow in
compliance with state law;
In order to consider the examination and approval of a voting
system or a ballot marking system;
In order to verify that the software on a voting system,
voting machine, vote tabulating device, or a ballot marking
system is identical to the approved version; and,
For any other purpose deemed necessary to fulfill requirements
under existing law.
Existing law permits the SOS to seek injunctive relief requiring
the elections officials, approved escrow facility, or any vendor
or manufacturer of a voting machine, voting system, vote
tabulating device, or ballot marking system, to comply with
existing law. The venue for such a proceeding must be
exclusively in Sacramento County.
This bill similarly requires a copy of the source code of an
election management system to be deposited into an approved
escrow facility. Specifically, this bill :
1.Defines an "election management system," for the purposes of
this bill, as a system that is used by a county in the state
of California to track voter registration or voter
preferences, including, for example, a voter's vote by mail
status.
2.Requires the vendor of an election management system, no later
than January 31, 2014, and annually thereafter, to cause an
exact copy of the source code for each component of the
election management system, including complete build and
configuration instructions and related documents for compiling
the source code into object code, to be deposited into an
approved escrow facility. Requires the vendor to place source
codes into escrow for each version of the election management
system in use in a county in the state.
3.Requires the SOS to adopt regulations relating to the
following:
The definition of source code components of an election
management system, including the source code for all firmware
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and software of the election management system. Requires the
firmware and software to include commercial off-the-shelf or
other third-party firmware and software that is available and
able to be disclosed by the vendor of the election management
system;
Specifications for the escrow facility, including security and
environmental specifications necessary for the preservation of
the election management system source codes;
Procedures for submitting the election management system
source codes;
Criteria for access to the election management system source
codes; and,
Requirements that the vendor include the build and
configuration instructions and documents in the materials
deposited in escrow, so that a neutral third party may create,
from the source codes in escrow, executable object codes
identical to the code installed on the elections management
system.
1.Permits the SOS reasonable access to the materials placed in
escrow, under the following circumstances:
In the course of an investigation or prosecution regarding the
election management system equipment or procedures;
Upon a finding by the SOS that an escrow facility or escrow
company is unable or unwilling to maintain materials in escrow
in compliance with the provisions of this bill; and,
For any other purpose deemed necessary to fulfill duties as
required under existing law.
5.Permits the SOS to seek injunctive relief requiring the
elections officials, approved escrow facility, or any vendor
or manufacturer of an election management system to comply
with the provisions of this bill. Provides the venue for a
proceeding under this bill will be exclusively in Sacramento
County.
BACKGROUND
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Top-to-Bottom Review and Access to Source Code History : In
2007, the SOS conducted a "top-to-bottom review" (TTBR) of
several voting machines certified for use in California. The
purpose of the review was "to determine whether currently
certified voting systems provide acceptable levels of security,
accessibility, ballot secrecy, accuracy and usability under
federal and state standards."
One of the key components of the TTBR was a review of the source
code of each voting system. At the time, state law only
required the source code for a ballot tally software program to
be deposited in an escrow facility. However since 2004, it had
been the practice of the SOS to require voting system vendors to
provide all voting system source codes to the SOS upon request
as a condition of voting system certification. Additionally, as
part of the voting system certification process, voting system
vendors are now required to provide the SOS with a copy of the
source code for all software and firmware components of the
voting system. Similar to the process undertaken as part of the
TTBR, all new voting systems that are submitted for
certification to the SOS undergo a source code review.
However, during the TTBR one voting system vendor initially did
not provide the SOS with a copy of the source code for review.
After the SOS attempted to retrieve the source code for that
voting system from the escrow facility in which it had been
placed, the vendor provided the voting system source code to the
SOS.
History of the Escrow Requirement : While the requirement that
the source code from a voting system be placed in escrow
primarily has become a tool in ensuring the security of voting
systems, that requirement was created with an additional
practical purpose in mind - ensuring that state and local
jurisdictions would have access to voting system materials if
the vendor who produced that system went bankrupt.
As part of the voluntary standards for computerized voting
systems that were adopted by the Federal Elections Commission
(FEC) in 1990, the FEC recommended that states adopt procedures
for escrowing voting system software and documentation for all
voting systems. As part of the implementation plan for the 1990
voting system standards, the FEC noted that the escrow process
contained multiple benefits, including that jurisdictions would
have "guaranteed access to all deposit materials as a last
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resort in the event a vendor's business fails." The FEC also
noted that, in the event of an election dispute or litigation,
the escrow process would allow for "verification of software
used in an election against the clean archival copy" of the
source code that was placed in the escrow facility.
California enacted its requirement that voting system source
code be deposited with an escrow facility by AB 986 (Mountjoy),
Chapter 235, Statutes of 1989. According to a floor analysis of
that bill, the requirement was adopted, in part, in anticipation
of the "adoption . . . of voluntary federal standards which
[would] require an escrow system for software programs."
COMMENTS
1.According to the author : Each county elections office uses an
election management system to perform critical functions
during the conduct of an election. For instance, election
management systems are used to track voter registration and
voter preferences, such as a voter's vote by mail status.
Consequently, election management systems, much like voting
systems, play a critical role in the conduct of an election.
Existing law requires voting system vendors to place their
source code in an escrow facility. This requirement ensures
the security of the voting system and protects these systems
from unauthorized tampering. In addition, this requirement
was created with a practical purpose in mind to ensure that
state and local jurisdictions have access to voting system
materials if the vendor who produced that system goes out 2.of
business.
AB 829 protects the integrity of our state's elections by
mirroring the source code requirements already in place for
voting system vendors. Additionally, AB 829 ensures state and
local jurisdictions have reasonable access to the source code
material placed in escrow in order to investigate potential
election law violations and to ensure counties can continue to
conduct elections if a vendor goes out of business.
3.Previous Legislation : SB 1376 (Perata), Chapter 813, Statutes
of 2004, allowed the SOS to have "reasonable access" to the
source code placed in escrow under certain specified
circumstances and allowed the SOS to seek injunctive relief
requiring any vendor or manufacturer of a voting machine,
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voting system, or vote tabulating device to comply with the
requirements relating to the placing of source codes in
escrow, among other provisions.
AB 2758 (Krekorian), Chapter 198, Statutes of 2008, required a
copy of the source code for all components of a voting
systems, instead of just for the ballot tally software, to be
placed into an escrow facility.
AB 1929 (Gorell), Chapter 694, Statutes of 2012, established
processes and procedures for the review and approval of ballot
marking system, including requiring the source code for all
ballot marking systems be deposited into an approved escrow
facility.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 17-0
Assembly Floor: 76-0
POSITIONS
Sponsor: Secretary of State
Support: American Association of University Women
California Association of Clerks and Elections
Officials
California Common Cause
Oppose: None received
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