Author: Danielle Citron


Secrecy in Voting (But Not the Good Kind)

A New Jersey Superior Court judge is currently presiding over a case brought by the Rutgers Constitutional Litigation Clinic that seeks to decommission New Jersey’s electronic voting machines. (New Jersey mostly uses direct-recording electronic (DRE) machines manufactured by Sequoia Voting Systems, one of the country’s top e-voting machine vendors.) The lawsuit contends that because the DRE machines fail to produce a voter verified paper audit trail, there is no way to know whether the machines, in fact, record the votes as cast. In June, the judge issued a protective order, requiring Sequoia to turn over its source code to plaintiffs’ expert Andrew Appel and assuring the company that its trade secrets would be protected. The order asserted that Appel could publish his report 30 days after its delivery to the court. On September 2, Appel and his team of computer scientists delivered the report to the court, assuming that they could publish it on October 2.

On Freedom to Tinker (where fantastic guest blogger Paul Ohm is now blogging permanently), Appel reports that the judge has now changed her mind. On September 24, the judge, ruling from the bench, told plaintiffs that they cannot release the report or discuss its findings.

Because the court ensured that the report would not reveal the company’s trade secrets, this eleventh-hour reversal does not appear based on a desire to protect the company’s legitimate interests. Instead, this new veil of secrecy seems intended to delay the bad news that the New Jersey voting machines are troubled until after the election. (Doesn’t it seem unlikely that the judge would delay the report’s release if it gave the machines a glowing review?) Perhaps the judge reversed course in the hopes that keeping the report secret would avert a crisis of confidence in the state’s voting apparatus. But such a crisis seems inevitable. And, more importantly, New Jersey voters deserve to be told that the machines may not count their votes accurately. This would allow them to decide for themselves whether they want to cast their votes as absentees, which would be counted on optical scanning machines and not DREs. Further, as Andrew Appel argues, the Governor and members of the New Jersey legislature need to read the report so they can protect their constituents’ right to vote. Hiding the results of the report can only cast doubt on the legitimacy of the returns in November.


Extreme Case of Automation Bias

According to cognitive systems engineering literature, human beings view automated systems as error-resistant. In other words, we trust a computer’s answers, even if evidence suggests that we should doubt them. Our automation bias was on full display on Monday night when a New York man drove onto railroad tracks because his GPS told him to do so. Luckily, the man and his passengers escaped injury before the train hit his car. A Metro-North spokesperson told reporters: “You don’t turn onto train tracks even if there are little voices in your head telling you to do so. If the GPS told you to drive off a cliff, would you drive off a cliff?” If this train incident and another like it nine months ago provide any guidance, the answer may tragically be yes.

car crash dkc.jpg

Wikimedia Commons


News for Civil Procedure Fans

During the fall semester, my civil procedure class covers personal jurisdiction. While most personal jurisdiction cases tend towards the staid, Calder v. Jones provides some possibility for fun. As my comrades in civil-procedure arms will know, the case involves a defamation suit brought by Shirley Jones, the mother from the Partridge Family. Every semester, this connection has great promise to generate some good cheer about the case, but of late I have been disappointed. This year, I desperately asked: “Don’t you remember the Music Man? or the Partridge Family?” (I thought about singing “I think I love you” but thankfully I ignored that foolish impulse). All I got was blank stares, a clear sign that I am helplessly unhip. My disappointment, however, may come to an end: NBC has just announced plans to reinvent the Partridge Family for prime-time television. Now, I just have to hope that my future students tune in. Amidst all of terrible news about the economy, this may lift spirits, even momentarily for civil procedure fans.


Rulemaking 2.0

Government officials are increasingly adopting Web 2.0 technologies to connect with citizens. Governors and mayors are blogging and posting videos on You Tube. See here. The State Department has an internal wiki called Diplopedia, which it presented at the Wikipedia conference in Alexandria, Egypt. Perhaps agencies will similarly embrace Web 2.0 platforms to transform their e-Rulemaking efforts, which to date have simply reproduced offline NPRMs and comments online. Rumor has it that the ABA has a committee working on potential e-Rulemaking projects. If the ABA produces a report, it might interest the new administration, but only if online tools would cheaply and effectively bring together stakeholders and the public to discuss proposed agency action.


Investigation of FCC Ends, For Now


In January 2008, the House Energy and Commerce Committee initiated a formal investigation into the FCC’s “regulatory procedures and practices.” At issue were concerns that agency officials abused how items were brought to a vote, leaked information to certain lobbyists and not to others, and insisted up moving forward with modifications of the ban on newspaper-broadcast cross-ownership depsite attempts to stop or delay agency action by members of FCC oversight committees in both Houses. According to Chairman John Dingell, the investigation would assess if the FCC’s procedures were conducted in a “fair, open, efficient, and transparent manner.” In March, the Committee asked FCC Chairman Kevin Martin for emails, memoranda, notes, phone conversations, meeting schedules and other information on the setting of FCC agendas, any limitations on communications between employees on official agency business, contacts with industry, personnel reassignments, among other things.

The Committee has just announced the end of its investigation. Now, the Committee is “considering how best to make our findings public, including a committee report.” The investigation did not include public hearings. Although the Committee members are no doubt distracted by the current fiscal crisis, one can hope that their report is issued soon.

Wikicommons Image


Two Women, Great Legacies

This week marked the passing of two women journalists who pioneered great change in their times. According to The New York Times obituaries section, Nancy Hicks Maynard, the first black woman to be a reporter at the New York Times, died at 61. Ms. Maynard joined the New York Times in 1968 where she stayed until 1974. At the Times, she reported on race riots, student takeovers at Columbia and Cornell, and the death of Robert F. Kennedy. She also wrote for the paper’s education and science news departments. She founded the Maynard Institute for Journalism Education, which has trained hundreds of minority journalists in the past 31 years. Ms. Maynard and her husband, Robert C. Maynard, a columnist for the Washington Post, bought the financially-ailing Oakland Tribune in 1983. The Times reports that her interest in journalism was sparked after a fire destroyed her former elementary school in Harlem. Outraged by the way her community was described in the press, she “decided she could make a difference.” Indeed, she did.

And so did Mary Garber, a journalist who first began covering athletics more than 60 years ago when female sportwriters were barred from press boxes and locker-room interviews, who passed away on Sunday. When Ms. Garber began her career as a sportswriter, the craft was dominated by men. Coaches treated her badly, her fellow sportswriters ignored her, and professional associations excluded her. But she perservered, first covering high school sports and then on college athletics. She also highlighted the acheivements of black athletes in the 1950s, in particular at Winston-Salem State, a time when “news about black people ended up on the Sunday newspaper’s ‘colored page.'” The Hall of Fame basketball coach Clarence Gaines told a reporter in 1990 that “We had outstanding athletes . . . and Mary came to write about them when no one else cared. Mary was always trying to help the underdog.” She later wrote for The Twin City Sentinel in Winston-Salem and The Winston-Salem Journal. In 2005, at 89, she became the first woman to receive the Associated Press Sports Editors’ Red Smith Award, presented annually for major contributions to sports journalism.


The Troubles with Partisan Election Administration

McClatchy Newspapers reports that a Republican county clerk in Colorado has been accused of using the state’s registration laws to suppress student voting, which is expected to heavily favor Democratic presidential nominee Senator Obama. The clerk apparently distributed a flier to the college that said: “What this means is that if your parents still claim you on their income tax returns, and they file that return in a state other than Colorado, you are not eligible to vote or vote in Colorado.” (Jon Greenbaum of the Lawyers Committee for Civil Rights Under Law explains that states and counties cannot adopt rules that one group of voters differently than others). Colorado Democrats also accused another county elections clerk, a delegate to the Republican National Convention, of taking other steps that would dampen voting by college students. That clerk admitted that he “mistakenly published information that was incorrect.” Local election officials in Virginia and South Carolina have similarly discouraged college students from voting. And, in Michigan, Democrats have filed a lawsuit seeking an order barring Republicans from using lists of people facing mortgage foreclosure proceedings as a basis for challenging their eligibility.

The partisan nature of election administration is troubling, both because it has long raised issues of deception to suppress voting and because it lowers the pubic’s confidence in the election process. As election law expert Richard Hasen has advocated, states should replace partisan election officials with a cadres of nonpartisan, professionalized election administrators on the state and local levels of government.


Update on State Department Passport Breach

In March, reports emerged that State Department employees gained unauthorized access to the passport files of Senators Clinton, McCain, and Obama, leaving many wondering if politics played a role in the breach. Wired Blogs reports that, on Monday, a former State Department Bureau of Intelligence and Research analyst pleaded guilty to unlawfully accessing the passport records in violation of Section 1030(a)(2)(B) of Title 18 of the U.S. Code. The analyst admitted that between 2005 and 2008, he read the passport applications of “approximately 200 celebrities, athletes, actors, politicians and their immediate families, musicians, game show contestants, members of the media corps, prominent business professionals, colleagues, associates, neighbors, and individuals identified in the press.” The government said the analyst accessed the applications out of “idle curiosity.” If indeed that is true, a year in jail is a hefty price to pay to itch the curiosity scratch.


Playing Fast and Loose with Genetic Information

According to the New York Times, Google co-founder Sergey Brin, in a recent blog post, shared the news that he has a gene mutation that increases his likelihood of developing Parkinson’s disease. According to Brin, studies show that his likelihood of developing the disease “in his lifetime may be 20% to 80%.”

What would possess Brin to disclose this sensitive personal information? The simple answer may lie in a crass attempt at advertising for his wife’s company, 23andMe, a biotechnology start-up that maps DNA for customers. In his blog post, Brin reported that 23andMe identified his gene mutation, a discovery that will allow him to “adjust his life to reduce” his chance of developing Parkinson’s and “support research into this disease” long before it affects him. (At a party, Brin told a New York Times reporter that he thought disclosing one’s DNA code to the public would be helpful to attract input from doctors who could suggest treatments, in a sort of open-source model). But for anyone else–a mere mortal who does not have the luxury of his wealth–such a disclosure would be foolish. Employers would no doubt view a person differently, even though the increased chance of developing the disease based on the gene mutation is so uncertain. His disclosure also sends the wrong signal to the easily influenced–one hopes that we do not see people announcing their potential diseases on Facebook or MySpace.


Flaws in the Election Assistance Commission


Senate Majority Leader Harry Reid recently appointed Barbara Simons to the Election Assistance Commission’s Board of Advisors, the federal body that sets voting technology standards for states that volunteer to be bound by them. As noted e-voting expert and computer scientist Professor Ed Felten explains, Simons is an accomplished computer scientist who will provide badly needed expertise on voting technology to the 37-member board. Before Simons’s appointment, none of the four board seats allocated for “professionals in the field of science and technology” had been filled.

Although appointing Simons is an important step in the right direction, more e-voting experts and technologists must be appointed and now. The EAC’s board is knee-deep in public hearings about the newest version of the Voluntary Voting Standards Guidelines (VVSG). This version of the VVSG—a massive 600 page document—has received serious criticism for its prescription of numerous contested requirements for voting technology that arguably hinder experimentation. The critics’ argument makes a tremendous amount of sense as rapidly-changing technologies are often best guided by standards that can accommodate rapid change. Professor Felten suggests that 10% of the board ought to be reserved for technologists. Even more technologists would be better as a central function of the EAC is the enhance accuracy and security of voting technologies. The majority and minority leaders of the House and Senate who appoint the board members should be seriously considering appointing e-voting experts, such as Professors Felten, Dan Wallach, and Avi Rubin for board membership.

IImage by Joebeone, from Wikicommons, under a CC-BY-2.5 license