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Diebold Whistle-Blower Charged With Felony Access
Vicissidude writes "An employee of law firm Jones Day found legal memos showing that their client, Diebold Election Systems, had used uncertified voting systems in Alameda County elections beginning in 2002 - violating California election law. The whistle-blower turned over the memos to the Oakland Tribune, which published the legal memos on its website in April 2004. The company's AccuVote-TSx model was subsequently banned in May 2004. Now, the whistle-blower, Stephen Heller, has been charged in L.A. Superior Court with felony access to computer data, commercial burglary, and receiving stolen property. If convicted on all three counts, Heller could face up to three years and eight months in state prison. Blair Berk, Heller's attorney state, "Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections." Sandi Gibbons, spokeswoman for the L.A. County district attorney's office rebuts, "He's accused of breaking the law... If we feel that the evidence shows beyond a reasonable doubt in our minds that a crime has been committed, it's our job as a criminal prosecutor to file a case.""
And in other news, whistle-blower Charleton Heston has been charged with attempts to incite a riot as well as breaking and entering at a government food production facility. Although the production of their main product was found to use human beings as a source for protein and flavoring agents, Mr. Heston has been brought into custody.
His public outcries of "Soylent Green is people!" led to a riot that left 4 people dead and many hospitalized in various conditions.
"He did not have clearance to enter the facility. He broke the law, and that's that", said the prosecuting attorney while nibbling on a cube of Soylent Yellow.
The NRA President faces up to 5 years in prison if convicted.
Capitalism: When it uses the carrot, it's called democracy. When it uses the stick, it's called fascism.
Most of what I know about the legal system I learned from watching Law & Order, so maybe a real lawyer can pipe in here: Would the whistle blower's work be protected from disclosure as attorney-client work product? But if the information he had was evidence of a continuing criminal conspiracy, wouldn't the attorney-client privledge be invalidated? BTW, the man (Stephen Heller) was not an employee (as started in the blurb), but a subcontractor. Does this change the legal questions?
One thing that I don't need a JD to see is that the prosecutors have their work cut out for them in convincing a jury that this man deserves to go to prision. In fact, I wouldn't be surprised to see a politician who's up for reelection in November introduce and grandstand over some new legistlation that would have protected this guy.
Entrepreneur : (noun), French for "unemployed"
If this is not summarily dismissed for the crock it is, Whistleblowing in this country will officially be dead, federal protections notwithstanding.
Living here is becoming creepier and creepier, I think some of Katz's old paranoid ramblings here may not have been so paranoid.
You say you want a revolution....
"Certainly, someone who saw those documents could have reasonably believed that thousands of voters were going to be potentially disenfranchised in upcoming elections."
So let me get this straight. His "crime" was the fact he alert people to the fact that the local elections were flawed due to the use of uncertified equipment? Is it their argument that because of this people might have disengaged from local politics and that hurts society and thus requires punishment? That's not just absurd, it's scarey.
He's accused of breaking the law... If we feel that the evidence shows beyond a reasonable doubt in our minds that a crime has been committed, it's our job as a criminal prosecutor to file a case.
No it is not. It is your job to prosecute if the following criteria are met:
While the first criteria may well be true, the second one is not. As an aside, pne of the assignments that my brother was asked when he was studying for his law degree was to answer the following question: "Given the fact that Parliament can make any law it pleases, without being constrained by the decisions of previous Parliaments, would the courts uphold a law that sactioned the execution of every blue-eyed baby in the country."
The answer is no. Technically, the court would be obliged to rule in favour of Parliament. This is because we do not have a written constitution that safeguards our rights [1]. However, the view is that the courts would never uphold this because of it's incredible abhorence.
The point of the excercise is to demonstrate one thing to woodbie lawyers: "Just because it's the law does not make it right." Morality and law are seperate beasts. Lying to your wife is immoral but it not a crime. In this case he may have broken the law, but frankly I think that is price worth paying for the value of the information he gave us. What he did was a crime but it was not immoral and did not seek to undermine society.
Simon
[1] - This is becoming less and less true. While in terms of legal theory it is certain that Parliament is not constrained by the decisions of previous Parliaments, in practice this isn't true. There are some acts that would be pretty much impossible to repeal. The European Communities Act (ECA) is a prime example of this kind of legislation. While it's legally possible to repeal the act doing so would require leaving the European Union which will never happen.
Thanks to the ECA, we are slowly acquiring a constitution. The Human Rights Act of 1998 was derived from the European Convention on Human Rights and was the first act of Parliament to acknowledge our fundamental rights in the positive. (i.e. Paraliment stating we have these rights explictly rather than simply failing to prohibit these actions).
Is this lost in the political posturing of a grandstanding procecutor?
How can one balance the voter fraud versus the revealing of "trade secrets?"
More and more it is of the People, for the rich, by the ownership class.
*mumbles about the revolution and walls*
The documents included legal memos from one Jones Day attorney to another regarding allegations by activists that Diebold had used uncertified voting systems in Alameda County elections beginning in 2002.
And so, once more, the American public has been saved from a shameful case of fraud by its justice system, ensuring that decent, law-abiding citizens everywhere will fear for their lives if they point out that the Emperor has no clothes.
Was what he did wrong? By the law, yes; by morality, no. If you know something bad is happening and you're in a position to do something about it, shouldn't you? Is that what the whole Enron trial is, pointing out that the people in the know not only didn't do anything about the destruction of the company, they helped it along. When was someone at Enron going to stand up and say, "hey guys, you're doing bad things."
But that's just it. They had to pass laws to protect whistle-blowers in the first place, because once you did it, you had a bullseye painted squarely on your back. It was the only way to assure people that they could speak up about the wrongs they were seeing committed every day. And yet those protections do not go far enough as evidenced by this, where the old saw "no good deed goes unpunished" has apparently been made law of the land. All Ican say is, I hope this does not get pursued or there will be a freezinf effect that will allow big business to continue to steamroll people everywhere.
GetOuttaMySpace - The Anti-Social Network
Well, Heller is learning the modern lesson about corporations: if you cross them, they will slap (SLAPP?) you down HARD. The harder you cross them, the harder they will slap you down. In this case, crossing a highly Republican corporation in a politically-charged topic, the victim is facing THREE FELONIES.
Of course, if it were me, I'd go to prison with a big, shit-eating grin on my face. The corporations are trying to Rule the Earth, and so this is a war between normal citizens and the elite. In war, people get hurt; I accept that. Heller may be a necessary sacrifice. He can eat at my dinner table anytime, and he can always ask me for a job when he gets out of prison. I hope there are many citizens who feel the same way and will help him when he needs it.
[You have a stable society when some nut guns down a schoolyard and the law doesn't change.]
You read this and your blood runs cold. It makes you wonder what would happen to George Washington if he was attempting to break the colonies from Britain today.
Sometimes government becomes so complacent, the people accepting of crap, that both need a good house cleaning.
In any event, this country needs a reminder of what the founding fathers had in mind when they formed this country.
It's all quite sad.
It's a Good Thing.
I'll never have to serve on a jury as I find it my civic duty to ask a question relevant to the case that forces the judge to explain that concept to those jurors who _are_ allowed to stay. The job of the jury is to ensure that _justice_ is done, not that the law is followed. If they determine that application of the law is itself unjust, they are absolutely 100% in their rights to find "not guilty," even if every single shred of evidence screams out otherwise.
Not really.
If he had gone through "official" channels, he most likely wouldn't have been coerced right there into silence and most likely, nothing would have been changed on diebold's side
-William Shatner can be neither created nor destroyed.
Correct.
(Warning: IANAL)
Diebold was knowingly using uncertified software to operate their voting machines, in clear violation of both the law and their agreement with the state of California. At best, this is breach of contract: at worst, it could be considered felony vote tampering.
Jones Day, a law firm which was advising Diebold and where the whistleblower was temping, sent several memos to their client about the subject. The memos appear to show that not only was the firm aware of the illegality of Diebold's actions, but was actively providing their client advice on how to evade detection, making them party to their illegal activities.
Heller discovered the documents, which he believed provided evidence that both companies had conspired to defraud the state of California. Days after their exposure, the state decertified the Diebold machines. The lawsuit which followed cost Diebold $2.6 million to settle out of court.
This isn't about upholding the law. This is about putting the fear of god into future whistleblowers when they dare to cross paths with a powerful corporation.
And that's what makes Heller's actions okay.
If it is not, then let us make it OK! In this case particularly, he should not be alone. He definitely has balls to be a whistle blower (either that or he is an idiot to get himself in trouble). Regardless, if we leave him alone and let him fight this battle alone, Americans should be ashamed of themselves. You do realize that if this doesn't make news, eventually your vote really doesn't amount to any thing when every election is managed or upstaged by Diebold. This is not about following law any more and I don't believe you should be following law when it is designed to only screw you no matter what.
When everyone is afraid to speak, there will be no dissenting voices.
Any program relying on (nontrivial) preemptive multithreading will be buggy.
This is the same situation with the leak about Bush's illegal wiretaps. The administration's response: "We'll launch an investigation to find out who's compromising national security by blowing the whistle on our [illegal] wiretap program." It's just shameless what the government does nowadays.
Common Law only has two parts that've been discovered thus far:
Civil law is when someone says "there oughta be a law". Legislators make shit up, try to pass it off as Law. Think of the damage done by drug laws. Yah, drugs are bad, but drug prohibition is worse.
No harm, no foul, no conviction.
Learn the rules so you know how to break them properly.
www.teslabox.com
The "whistleblower" status is for people who know that something dirty and wrong is going on and turn over their evidence to internal agencies of the government to deal with it. A whistleblower takes his knowledge and does not go public with it. This guy mailed this stuff to the newspapers, that's why he's in trouble. Had he contacted any one of a dozen agencies to handle the complaint, he'd be in no legal trouble. The whisteblower law would protect him. THat's why all these "leakers" are landing in hot water. WE learned from Watergate that if you go public with something incriminating, you become a hero to the media. So now people leak all kinds of shit trying to be the next "Deep Throat." Well, that's not why we have whistleblower laws. The whistleblower law is to protect a consciencious objector to an unlawful government practice. In this case, a company working on the government dole breaking the law. If the guy wanted legal protection to busing Diebold on their shitball hardware, there's a legal recourse to do so. He didn't use it. He leaked to the goddam newspaper. That's exactly the opposite of what you're supposed to do. He's geetting what he deserves. Now, if only Diebold can be held to the same standard.
"I have never won a debate with an ignorant person." -Ali ibn Abi Talib
This is one gint step backwards for our rights. When a person who lets others know of posible corruption, and than get prosicuted for informing the public of so- called corruption, is that not corruption in its most simplelistic form???
have you seen my sig? there are many others like it but none that are the same
From slashdot: "An employee of law firm Jones Day found legal memos showing that their client, Diebold Election Systems, had used uncertified voting systems in Alameda County elections beginning in 2002 - violating California election law."
From the la times: In the memos, a Jones Day attorney opined that using uncertified voting systems violated California election law and that if Diebold had employed an uncertified system, Alameda County could sue the company for breaching its $12.7-million contract. The documents also revealed that Diebold's attorneys were exploring whether the California secretary of state had the authority to investigate the company for alleged election law violations.
In other words, the documents didn't show that Diebold did anything wrong. Just that their lawyers were discussing the law.
I think this case has probably more to do with a law firm protecting its confidentiality and the security of it's documents, than Diebold protecting itself from exposure.
The "proper" authority is the people of California. Read the constitution sometime.
Avoid Missing Ball for High Score
I'm as much an opponent of rigged elections as anybody. But in your zeal to see black and white, you missed the point.
It's not that alerting the citizenry that a voting machine is uncertified is bad, nor even that blowing the whistle is bad. This is not a simple case of retribution against a whistleblower.
It's stealing documents that's bad. Violating attorney-client privilege is bad. Why, you ask?
Even those accused of murder and child molestation have a right to a fair trial. In fact, the more heinous the crime the more important it is to conduct the trial fairly, so as not to punish the innocent. Funny how people who otherwise know that forget it when someone they don't like, whether it's OJ Simpson or Diebold, is the accused.
Leaking documents prejudices the case, one way or another, and risks having the case thrown out. Attorneys *must* be able to discuss in secret what their strategy is, or the legal system would fall apart. The discussions between two attorneys behind the scene are not facts, they are not evidence. They are merely commentary.
The trouble is that people (jurors) cannot help but form an opinion based on some leak. "Gee, if that's what they say in private, it must be true." Possibly, if the discussion is not taken out of context by some reporter with an axe to grind or newspapers to sell. It's also possible that the typist only chose those documents that looked the worst for Diebold.
I don't want the justice system to reward people who work to thwart it, even if it means letting a guilty man go free.
sigs, as if you care.
If you really think it was *wrong* what he did, then please explain to me how the populace should find out that their voting machines are (potentiatlly) fatally flawed? Who would willingly release this information? How would we *ever* find out?
If Diebold doesnt want bad press then they should improve thier machines to stand in the light of open public investigation. If they are unable to build such machines then they should probably not be in the business of selling voting machines.
A whistleblower is anyone who protects the public interest by releasing information of wrongdoing. In the case of California elections, the officials in charge of them have been arguably complicit in using uncertified as well as easily-hackable equipment. Reporting the problem quietly to them would be like going to the mob-associated mayor and telling him the proof you had about the city garbage contract - you'd be likely to find yourself amongst the garbage in the next truck. (Nor is there anyone on the federal level to report it to when it's a state law being violated.)
Responsible whistle-blowing goes public. That's what it means: You're standing there blowing the whistle as loudly as you can to get attention to the wrongdoing. You're not finding some official to whisper quietly to about it.
"with their freedom lost all virtue lose" - Milton
If you commit a crime to prevent a much bigger and reprehensible crime...the law should help you there....isn't that logical ?!
In other cases there is no consideration for things like this....for example if someone breaks into your house and becomes injured going up the stairs, you are liable for his injuries because you neglected to fix that broken bannister he was using. Or if you set something up to trap burglars in your basement while you were on vacation and is forced to eat outdated food in your refrigerator and gets sick on it, you are liable for his illness. Just because one party breaks the law does not make the other party immune from it unless you have some kind of immunity negotiation with law enforcement like when a suspect gives up information about others that incriminates himself. I think the only other exception to this is using lethal force against someone who you believe is going to kill you. In that case you are permitted to kill in self defense as long as there is an obvious, immediate life-ending threat.
The whistleblower in this case may be right from a "helping my fellow man" point of view by disclosing his information, but that does not make him right in the eyes of the law. Besides, there are defined processes that one should go through before going to the media as a whistleblower which are legally acceptable and defensible.
You are fully familiar with cases concerning OJ Simpson and Michael Jackson aren't you, dear reader?
Yeah, I'm familiar with how one guy was acquitted because the case against him was horribly mismanaged and distorted by clearly corrupt police, and I'm familiar with how the other guy was acquitted because the evidence against him basically amounted to 'look at him, he's weird'.
Not every trial _has_ to end in a conviction. The idea is to find _whether_ it can be _proved_ that the defendant is guilty.
Whence? Hence. Whither? Thither.
I am not a lawyer but I am pretty sure that CA law does not protect client confidentiality in cases where the client is planning an overtly criminal act. But that does not mean that disclosure to the press is necessarily protected.
It seems somewhat unlikely that this trial is going to result in a guilty verdict unless the court prevents the defense from presenting their case that the accused believed that he was protecting the election to the jury.
What it does mean is that there is going to be a lot of intense scrutiny of Diebold's voting machines and a lot of internal Diebold correspondence is going to come out in court.
At this point Diebold paranoia is mostly on the left in the US, but as I was arguing in my blog this morning it is only a matter of time before the right begins to become equally suspicious. Whether justified or not there is going to be someone who cries foul. I really do not think it is at all likely that Diebold would be part of any electoral conspiracy, even if the CEO is a Republican I'll bet most of his engineers are liberals and libertarians.
The key discovery here is that a voting system has to be auditable, not just secure. Diebold's ATMs only need to be secure. The bank knows how much cash is put into them each day and how much is withdrawn. The machine itself is not the sole trusted component in the audit loop. That is not the case with the voting machine designs.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Americans seem to be getting very good at that lately.
"When fascism comes to America, it will be draped in the flag and carrying the cross." -- Sinclair Lewis
Here is the mailto: for Sandi Gibbons, The L.A. County D.A.'s spokesperson with the obnoxious opinion in this piece.
She can probably be deluged with your complaints, and general opinion on her political future, and that of sitting D.A., Steve Cooley. He's tried to frame himself as holder of a non-partisan office, but this makes his acknowledged party affiliation pretty obvious. He previously insulted jurors and responsible in the failure to prosecute the attackers of Donovan Jackson.
A more civil feedback form is available at http://da.co.la.ca.us/feedback.htm. I think Ms. Gibbon's own e-mail might garner more attention.
"Speaking the Truth in times of universal deceit is a revolutionary act." -- George Orwell
"The majority seems to be of the opinion that the document leaker has performed a public service. That is as far from the truth as it could possibly be."
There are millions of people who honestly believe recent elections of federal officers have been rigged, in what amounts to a coup d'etat, in part facilitated by the Diebold corporation.
In this light, it should be more surprising that we have not seen violent acts of rebellion, and certainly that there have not been more incidents where people have sought to expose Diebold.
This was a peaceful act of civil disobedience (for which Heller should face the consequences!) with a much larger goal than merely exposing an attorney's briefs. There may be a case to be made that the ruling party governs without legitimacy, and if that's true, there is no legal framework under which the matter can be considered fairly, since it questions the very authority of the government under which any question of law can be judged.
Now, I personally do not believe Diebold is effective enough to accomplish a coup, and I consider the current government to be an expression of the apathy of voters. I also don't believe that *even if* these documents show what they are purported to show, they amount to a defense for Heller.
However, in a question as serious as this, it was irresponsible of counsel to allow this information to escape.
-fb Everything not expressly forbidden is now mandatory.
Consider why we have juries, rather than just allowing a judge to make all the judgements. The jury is the final check in a system of checks and balances. If congress enacts an unjust law, the president passes it and the courts uphold it, but twelve average citizens won't convict based on it, then the law shouldn't stand. This is how our jury system originally worked, but things have changed and now juries are not allowed to judge the law itself, only the facts. Think about it, if only the facts are to be disputed, why have juries at all, why not allow a judge to rule?
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton