The ever controversial source code is now finally available, so says poll chief Sixto Brillantes. The catch, however, is that the review can be finished only well after the elections on Monday (May 13). The review could last for as long as six months, meaning the results will be known by as late as November. This also means that we will indeed be forced to entrust our votes to an un-scrutinized computer program. If it had serious problems, we will know after the damage has been already done. Imagine the chaos it will create if the post-election review of the source code found loopholes a high-tech Garci can easily exploit to operate an electronic dagdag-bawas.

Beyond Brillantes and Comelec

Common opinion says that such predicament could have been avoided had the Commission on Elections (Comelec) simply followed what is required under the law. Republic Act (RA) 9369 or the amended Automated Election System (AES) Law mandates the review of the source code by political parties and interest groups. Poll officials failed to implement this. The primary author of the AES Law, senatorial bet Richard Gordon, has argued before the Supreme Court (SC) that such review is imperative. The elections could not proceed without it, he said.

Is it because of plain neglect of Brillantes and the Comelec that the pre-election review was not conducted? Maybe to a certain extent. But what really hostaged the availability of the source code is the fact that it is a private technology marketed for profits by a foreign company. And that’s the original sin, so to speak.  The Comelec privatized our elections and allowed foreign firms to control it through their patented software and technology. That’s where Comelec’s bigger accountability lies.

The basic issue of private and foreign control was not corrected when Comelec bought the precinct count optical scan (PCOS) machines from London (UK)-based Smarmatic International Corp. in March last year. In the first place, the decision to buy the machines was more about budget constraints. Leasing brand new units entails P6.2 billion. On the other hand, Comelec reportedly spent just P1.8 billion to purchase the 81,280 PCOS machines it leased from Smartmatic in 2010. However, the know-how and technology remained with the foreign vendors.

Indeed, the AES has made Philippine elections a multi-billion peso industry dominated by foreign companies. Aside from supplying the PCOS machines for P1.8 billion, Smartmatic also cornered five other contracts with the Comelec for the 2013 polls. One is the provision through a call center of operations and technical support services to field personnel of the Comelec who will man the PCOS machines. This contract is worth P111.6 million. The others are the P405.4-million election results (ER) transmission services; the P154.5-million transmission modems; the P46.5-million compact flash (CF) cards main; and the P46.5-million CF cards worm. All in all, these Smartmatic-Comelec deals are worth almost P2.6 billion.

Corporate dispute

But Smartmatic’s monopoly of Philippine elections (and in other countries as well) is being challenged by a fellow foreign vendor. As we discovered, Smartmatic only owns the PCOS machines but not the software to run them. The software is owned by Denver (US)-based Dominion Voting Systems which unilaterally terminated in May 2012 its license agreement with Smartmatic for the Philippine elections. It led to a legal dispute in a Delaware (US) court in September 2012. Corporate legal disputes between the two election vendors are also ongoing in Mongolia and Puerto Rico.

Thus, Brillantes and the Comelec could not release the PCOS source code owned by Dominion for public review because of possible legal issues. The situation was truly odd – the entire nation was held hostage by the conflicting private interests of multinational companies. It highlighted how under the current AES, elections as a supposed exercise of national sovereignty can be so easily undermined by foreign firms that are unaccountable to anyone except their profit-seeking investors.

Prior to the agreement between Smartmatic and Dominion to allow a public review of the PCOS source code, Brillantes has repeatedly assured AES critics that SLI Global Solutions has already certified the PCOS source code so we need not worry about its trustworthiness. SLI is the third party reviewer contracted by Comelec to scrutinize the PCOS source code. Like Dominion, SLI is also based in Denver and provides “software testing, quality assurance, and independent verification and validation”. IT firms from the same US state – and with presumably many business deals forged between them in the past (like this one) – are not exactly reassuring.

Note also that because of the dispute between Smartmatic and Dominion, the additional eight enhancements to the PCOS source code that Comelec asked have not been implemented. It is unclear what exactly these enhancements are, but we know for a fact that the PCOS machines showed insufficient accuracy in properly counting the votes, among other errors, as shown in the mock elections and in the final testing and sealing (FTS). Brillantes, however, kept telling us to just give our full trust to these unaccountable, profit-driven foreign companies. It does not help that in agreeing to give the PCOS source code for public review, Smartmatic and Dominion forged a deal riddled with confidential provisions. Brillantes was quoted as saying said that these terms are covered by a non-disclosure clause and are “personal” to the disputing companies; never mind if what is at stake is the national interest.

Canvassing source code

The PCOS software or source code is just one aspect. Seldom talked about is the source code of the Canvassing and Consolidation System (CCS), which Comelec also purchased from Smartmatic for P36.6 million. Unlike the PCOS source code, the CCS source code supposedly underwent review by the United Nationalist Alliance (UNA) and the Parish Pastoral Council for Responsible Voting (PPCRV). However, we have not tested the reliability of the CCS because the FTS of the Comelec did not include the transmission, canvassing and consolidation of votes. Furthermore, the enhancements to the CCS source code were apparently not implemented, again due to Dominion’s termination of its agreement with Smartmatic. Note that in 2010, grave concerns were raised on the security and reliability of the CCS that could have resulted in wholesale cheating.

One well-documented case of possible electronic fraud using the transmission server is Biliran. The Philippine Computer Society (PCS) identified the following instances as probable proofs of electronic fraud in the province during the 2010 automated polls: (1) The Municipal Board of Canvassers (MBOC) computer received transmission of two different elections results from two different internet addresses; (2) The MBOC received a successful transmission of results from a precinct where the PCOS machine was reported to have shut down without transmitting anything; and (3) The MBOC received transmission of results 29 hours after the polling place had already closed.

The PCS explained that the first instance shows that the MBOC computers could receive results for the same precinct from several PCOS machines. The second instance, meanwhile, shows that MBOC computers could receive results independent of the PCOS machine assigned to the precinct. These two instances demonstrate that a poll cheat with access to an unauthorized PCOS machine can transmit doctored results to the MBOC.  Finally, receiving results beyond what the PCS called as “common sense range of time for transmission delay” provides cheats a very wide window to alter the authentic elections results.

Comelec accountability

While privatization and foreign control are the underlying reasons for the numerous problems facing our elections, Comelec is accountable as well along with Smartmatic and Dominion. The poll body colluded with these foreign vendors of election technology in undermining our right to vote and our right to credible, democratic and transparent elections by instituting the type of flawed AES in 2010 and again this year. Because it entered into multi-billion peso contracts with foreign companies, it is hell-bent in defending the expensive AES despite the obvious and serious defects of the system.

Elections in the Philippines are structurally flawed; winners are determined by how much guns, goons and gold they have. It marginalizes the poor and powerless while legitimizing the domination of the political and economic elite and creating the illusion of democracy. Poll automation was seen as a step forward to address some of these issues. But with the type of AES we have, it appears that we have even taken a step backward. Modernizing our electoral process through the use of technology is not necessarily wrong. However, modernization should promote transparency, credibility, accountability and people empowerment, all of which are seriously being subverted by the privatized and foreign-controlled AES of the Comelec. (End)