House probe on PCOS: Machines don't cheat, people do

ABS-CBN News

Posted at Jun 28 2010 06:08 AM | Updated as of Jun 29 2010 01:35 AM

MANILA, Philippines - The House committee on suffrage and electoral reforms has declared there was no failure of elections in the country's first automated polls.

The committee had investigated allegations of fraud during the May 10 elections.

Committee Chairman Rep. Teodoro Locsin said there was no evidence the voting was rigged.

Instead, Locsin praised the Commission on Elections (Comelec) for the successful automation.

Locsin also urged the Comelec's automation partner, Smartmatic, to fix the glitches in the Precinct Count Optical Scan (PCOS) machines and the whole automation process as well.

Several defeated candidates had testified in the House probe that alleged operators approached them to offer victory in the polls for a fee by using the Complact Flash (CF) cards.

But Locsin sided with Smartmatic officials, who said the CF cards cannot be manipulated. -- report from ANC

Below is a summary of the Chairman's report:

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CHAIRMAN'S REPORT

Re : The Committee on Suffrage and Electoral Reforms Hearings on the Alleged Fraud and Precinct Count Optical Scan (PCOS) Machine Manipulation in the May 10, 2010 Automated Elections Sponsor : Rep. Teodoro L. Locsin, Jr.


OBSERVATIONS, CONCLUSIONS AND RECOMMENDATIONS

1. LEST IT BE OVERLOOKED, there was no failure of elections, contrary to the hysterical warnings of pundits and politicians. The closest the country came to failure of elections was the thoroughly inexcusable wrongly configured CF card crisis days before May 10-a case none of the doomsayers anticipated. In that respect, congratulations are due the Comelec, the PPCRV, and the other advocates of automated elections. Elections proceeded exactly as manual elections in the past had done. After the initial elation, automated elections generated in the pubic the same guarded but universal acceptance of national results. To be sure, in the cases investigated by the House Committee on Suffrage, there were, as compared to manual elections, longer and more puzzling delays and curious behavior by election officials conducting the polls on the ground (BEIs), before, during or after official voting hours, before, on and after Election Day, and in the counting, transmission and canvassing of the votes. Indeed, the most lavish praise for the automated election comes now from those who were intransigently opposed to it, e.g., the Liberal Party, whose sweeping attacks defied rationally concrete response. Ironically, the main lawyer of the winning Liberal Party presidential bet would say upon the proclamation of his client that, without automation, his client would have lost. That is exactly what the Chair of the House Suffrage Committee assured kin of presidential bet Noynoy Aquino when they expressed apprehension over automation early in the campaign. Automation was their last best hope of an honest count and canvass of Aquino's votes in light of his declining popularity, was the Chair's assurance. In the event, Aquino recovered in the surveys and swept the elections for president. The winning vice presidential bet was only occasionally vocal in his apprehension of automation. The Chair had extended the same assurance to the winning VP bet, who has since generously acknowledged that automated elections gave him the confidence to focus his attention electoral exertions singularly on winning more votes rather than dividing and scattering them to protect his votes as well.

2. One can only speculate if what we are hearing today is a late conversion to automation as such or a belated recognition of the "advantages" of automation.

3. The Chair thinks the praise is welcome but undeserved in the case of the winning presidential bet. Mr. Aquino's lead was so wide as to defy defeat in any kind of election: manual, manual with cheating on the usual 1 million vote scale (there was never such a thing as an attempt to cheat on the scale of 3 to 5 million votes), or automated with or without the glitches and the electronic mis- and malfeasances revealed during the hearings of the House Committee on Suffrage. In light of this extraordinary result, the jury is still out on the advantage of automated over manual elections.

4. Automation's advantage clearly figured in the tighter VP race. It is indicative of the conduct of automated polls on the national level that none of the losing national candidates filed a protest.

5. A tight presidential race, however, where the difference was in the tens or even hundreds of thousands, say, in conjunction with the anomalies uncovered in our hearings, would have thrown the country into turmoil. So, on the national level, our assessment is of a mixed success. Automation showed no substantial advantage. On the local level, our assessment is profound unease.

6. The anomaly that stood out in the House investigation is the time and date stamp issues which had audit logs showing voting outside voting hours, none during voting hours, elections held before or after May 10, as well as transmissions at improbably late hours or even days after, where the count underwent sudden and radical reverses, whether the transmissions were electronically done or physical delivered. The goal of automation was never twofold: speed and accuracy. It was always singular: accuracy. Heightened speed was just a means to enhance accuracy because it left less time to manipulate the canvass manually. But what if the cheating was electronic? Then speed merely made cheating too fast to see, pre-shaded ballots impossible to distinguish from legitimately shaded ballots, and the rest of the electoral process was concealed by technology from the public eye. The original complaint of opponents of automation in the early stages of its legislative introduction, which does not make it invalid. Quite the contrary. The objection of lack of transparency was outvoted but not answered.

7. Smartmatic's explanations of the time and date stamp variances achieved only fitful credibility. The explanations shifted from cavalier dismissals of the variances as trivial, to suddenly grave acknowledgment of their seriousness, marked in between by what Smartmatic tried to pass off as educated guesswork as to what might have gone wrong. Until all the PCOS are retrieved, stripped down, and eviscerated mechanically and the programs analyzed, we will never know why elections took place on the wrong days and at the wrong times according to documentation generated by the PCOS themselves.

8. Smartmatic ended its presentation with the generous but impracticable suggestion of a full-blown, monumental post mortem of the kind that no sensible election system should require for the validation of its results. An automated election system that requires for its validation an effort that would be equal to or greater than that required for the conduct of an actual national election should not be adopted.

9. Equally generous was Smartmatic's offer to rectify at its own expense the wrongly configured CF card crisis. It deflected the unanswerable criticism that this was the closest to, and most real threat of a failure of elections. The oversight was entirely predictable. It had happened before in another jurisdiction overseas. Smartmatic admitted it had inexcusably forgotten to prepare for avoiding a similar problem here. The curious distribution of blank extra CF cards with two burners per province is, however, another matter. It raises the question why the unlikely contingency of yet another wrong configuration was provided for, especially on so small a scale as to require a mere 20 blank CF cards and two burners per province. Too few to make a difference in a crisis of the national magnitude of the wrongly configured CF cards but enough to make a difference in the outcome of local elections at the hands of unscrupulous election officials on the ground. Rep. Rufus Rodriguez could not stress enough the illegality of a contingency measure that was ordered before it was authorized by the Comelec en banc. The head of the Advisory Council had been alarmed by it.

10.Several defeated candidates testified that persons identifying themselves as brokers of Smartmatic and Comelec approached them months before the elections with offers to manipulate the automation process in their favor. The alleged brokers promised, for a fee, a victory in the elections by using 22 customized CF Cards. Unfortunately, we have only their bald allegations to support their accusation. The best evidence to support this theory would be a discrepancy between the results of a manual count and the results as printed in the election returns. The discrepancy should consistently be in favor (or against) a candidate. If this is the finding in the election protest cases currently filed, then the manner of manipulation must be fully uncovered and the appropriate corrective measures taken to prevent its recurrence-or automation must all together be scrapped.

11. The time and date stamp issues are too serious in all its aspects for us to be convinced by explanations that sound like works in progress. An election return that is dated other than the official day of elections must be taken at face value and is legally invalid. Voting logged as taking place hours after the close of voting hours, with ballots logged as having been fed to the voting machine at a fast and unvarying rate consistent only with one person doing it, are not just suspicious but invalid as well. It is no argument to say that when the time is wrong, the time is still right just because it is consistently wrong. Smartmatic tried to argue: 12 hours of voting is still 12 hours of voting whenever and whatever the time logged or, for that matter, the date of the ER.

12.It is conceded that the PCOS can be reset to 0-by means that vary from changing CF cards to no need to change them after all. Scanned ballots can be re-fed to the machines and the count started all over again. Smartmatic fitfully gave equivocal assurance that the audit logs would register this illegal activity anyway. In this case, opening ballot boxes will reveal nothing more than that they were stuffed indiscriminately and indistinguishably with pre-shaded ballots, along with legitimately shaded ballots, as well as unused ballots illegitimately shaded before or after election hours, or before or after May 10.

13.For that reason, we oppose the use of the same kind of ballots-with ovals for shading in lieu of handwritten ballots-in the forthcoming barangay elections which Comelec says will be manual. Using such ballots in a manual election is an invitation to fraud as incumbent mayors attempt to consolidate their grip on their barangays. There would be no way to tell genuine from fake ballots. If elections are to be manual, they should be manual throughout, especially the use of handwritten ballots. And if automated, we might suggest a hybrid ballot where the voter casts his vote by shading ovals but with a part of the ballot where the voter could handwrite a word or phrase other than her name. Handwriting analysis has been an exact forensic discipline since the 19th century.

14.The digital signature-only of a particular PCOS-and not of the BEI person herself was conceded as being, for practical but not legal purposes, sufficient compliance with the intent of the E-Commerce and Automated Election laws. The Chair argued that a PCOS digital signature serves equally as the digital signature of the BEI who has custody of the machine because it is possible to link one to the other. The BEI cannot escape responsibility because the PCOS assigned to her will follow her always. This claim, to which the Chair gave credence, served in his view the purpose of the strict letter of the law, which is to hold BEIs accountable. This explanation was accepted as a practical one by the national canvass whose sole functionality in an automated election where there is no handwriting to consider is the equivalent of a noisy rubber stamp, where approval is automatic but rife with rhetoric. But the Chair's justification, adopted by the national canvass, seems in retrospect over hasty. It is possible to trace and link a particular BEI to a particular PCOS machine but some of those machines in some of the contested local elections have vanished, some for days, weeks and possibly for good. The problem is not finding the BEI of a particular PCOS but the PCOS itself. On top of which, the iButton that inserts the digital signature can be handed over to another person because it is not implanted surgically in the particular BEI to which it is assigned. Smartmatic admits that the CF cards found in a Cagayan de Oro dumpsite are genuine. So are the contents of the CF card proffered by Rep. Mary Anne Susano after much hemming and hawing. Rep. Roilo Golez could not emphasize enough that we had here a serious breach of security in the custody of key election materials whose scale we have yet to measure.

15.The Cabuyao plant visit showed that the automated election system worked in the conditions of the Cabuyao plant. We dismissed the objections of critical IT experts as to the location of the demonstrations. We argued that it would work out the same way if the demonstration were held in Congress, as in fact it was during the national canvass, again using Smartmatic machines and technicians. Using other machines and technicians would have served no purpose except to show the success or failure of a system that was not the one adopted.

16.The critics were asking for something impossible to replicate: a demonstration of the automated election system in the actual conditions of contested elections, with money flowing, threats freely bandied, and consequently BEIs behaving curiously in virtual isolation and impunity. BEIs ignored poll watchers or drove them away, and even ignored the Comelec's warning not to proclaim candidates before the canvassing was 100 percent complete as required by law. They kept the public in the dark, such as resorting to special voting rooms supposedly for the elderly and infirm but actually for stout and hardy but selected voters, as Rep. Raul Gonzalez, Jr. of Iloilo reported, leaving voters of uncertain political sympathies waiting in the long queues until some went home in exasperation.

17.A biometric system together with the PCOS would have dispelled much of the uncertainty that has wrapped itself around the automated election but an attempt to enforce it strictly by Comelec Chair Jose Melo was met with threats to sue him again. Chairman Melo had boldly declared at a JCOC meeting that he would deny the vote to qualified voters who refuse or fail to register biometrically. More litigation would have further delayed preparations for the automated elections. Two million voters-a figure snatched out of the air by Chairman Melo's critics- would be disenfranchised. Biometrics, though congressionally approved and fully funded, was consequently scrapped. Ironically, in the end, more voters, some 3 million-were disenfranchised, not least because they were kept away from the polls by the long lines of what complainants' allege were prepaid voters who turned up early in order to be slow to vote.

18.Cheating on the local level is strongly suspected but appears to have been sporadic. The method most likely adopted-involving time and date stamps, resetting the machine, re-feeding already scanned or unused ballots, taking complete control of precincts-shows it to have been laborious, fraught with risk of discovery, and time-consuming. However, the risk of discovery was mitigated by the certain knowledge that the media would dismiss the cheated candidate as a sore loser, forgetting the principle that while some losers cry cheated, some winners really cheated. The cheating appears therefore to have been confined to local contests. While it is true that unused ballots are supposed to be torn in half, 24 with the left side put in one envelope and the right in another, these folders are lost and not even most of the PCOS machines have been retrieved, let alone their CF cards, secrecy folders, pens, not to mention the huge ballot boxes themselves which remain in the custody of incumbent winners who are awaiting the rainy season to wash away the evidence. Smartmatic says it has the responsibility to retrieve the machines but hasn't the authority to return them to its plant for diagnostic testing. That needs Comelec en banc authorization, which might come when all interest in the matter has evaporated.

19.The same cannot be said of the automated elections with regard to national positions because the hearings confined themselves to complaints from local candidates. Yet it cannot be emphasized too strongly that a city, province or district deprived by a misused, which is to say a fraudulently conducted automated election, suffers the same political and social damage to the public interest in legitimate governance as an entire nation would endure from fraudulently elected national officials. The further danger is that these admittedly sporadic automated or automation-related anomalies could be perpetrated and institutionalized nationwide by the unwise appointment of, say, an automated election cheat to government departments with nationwide reach involved in elections, such as DILG, DECS, and DND, not to mention appointments to impending vacancies in the Commission on Elections and in the Advisory Council of the Automated Election Law.

20.It was perceptively pointed out by Rep. Roilo Golez that automated cheating on the scale-but only on the scale-to affect national offices like that for president and vice-president and involving, according to him, 5,000,000 padded votes, would require technological breakthroughs matching those in the manufacture of Smartmatic's PCOS. It would also require talent, manpower and organization similar to Smartmatic's operations. To be sure, we have no information as to the scale of Smartmatic's operations, or how many people Smartmatic employs, for it seems to outsource its manufacturing. We don't know what are the qualifications for its personnel, as many or few as they may be. We do not know if their technology is uniquely created and patented. It would indeed demand vast sums of money to fund a replication of Smartmatic's automation project from scratch. Prof. Roberto Verzola agreed that it couldn't be done without those requirements being fulfilled. Our comment is that 5,000,000 or even 2,000,000 votes are too much. President Gloria Macapagal Arroyo was beleaguered for six years on an allegation involving a little over a million votes and an improper phone conversation. The fact is the technology, know-how, skill, manpower, organizational and financial requirements already exist in the Commission on Elections, a constitutional body, to which Smartmatic had turned over everything it knew about how to conduct the automated election system it had leased to Comelec. Smartmatic turned it all over from Day One and Comelec had all the time since the bid was awarded to Smartmatic to master the technology, not least to be able to intelligently assess its true capabilities.

21.The PCOS might be described as a sophisticated bean counter that will recognize only one variety of the legume but a bean counter it is. It will even count as beans legumes of variable size, depending on the weather. Like the ballots that Ace Barber's video showed a BEI snipping with scissors to fit the PCOS, beans too expand in water. Smartmatic's explanation that ballots expand because of humidity was unsupported by data on the qualities of the paper used and its speed of expansion given a particular level of humidity. There is no 25 comparison between the fogginess of Nikon camera lenses caused by a sudden change of temperature and the expansion of damp ballots. Smartmatic's assurance that humidity expands the ballot evenly all throughout its surface and therefore spreads the coordinates printed on them evenly, does not explain how the PCOS will be able to recognize coordinates evenly spreading-way out of the machine's range of reading. The coordinates would be uniformly out of the PCOS' "view." Another piece of guesswork that impressed no one. The PCOS does not require rocket science. The PCOS technology and the programs used need not be reinvented. We were not shown which parts of it were patented. It appears to be a modified laptop computer, as amenable to manipulation as any other but for the presence of certain security features that, it turns out, could be turned on or off, as desired by Comelec.

22.The PCOS machine, along with its design, manual of use, programs and applications, can be purchased or, as in this case, leased. It was leased by an organization bigger than most giant corporations in the country, and armed with more authority to act and money to spend than any business enterprise which is independently audited and accountable to its shareholders, not to mention supervening regulatory authorities, such as the SEC, the Anti-Money Laundering Council, the Finance Department, the Department of Justice or the Office of the Ombudsman.

23.The Comelec is accountable to no one and frequently doesn't bother to answer anyone who is not asking them the question on national TV and radio. The various resolutions of the finely constituted Advisory Council, led by the forthright and uncompromising Chair of the Commission on Information and Communication Technology (CICT) Ray Anthony Roxas-Chua III, urging caution with regard to disabling certain security features, were sadly ignored by Comelec. He was furious with Comelec.

24.In the course of the closing debates on automation, Rep. Pablo Garcia insisted on the adoption of certain manual features alongside the conduct of automated elections, not least because the Automation Law mandated it. There was an inconclusive debate on whether or not the law so required those features. The Chair urges Rep. Garcia to revisit the issue for he may well have been right all along. Automated elections, as we said earlier, is the least transparent kind of elections because digital events occur on the scale of electrons and perforce occur in "black boxes," so to speak. We say, that since the automated elections are over, there is no legal basis for denying the fullest disclosure of any and all technology, know-how or intellectual property of whatever kind, when it refers to the conduct of democratic elections. Indeed, confidentiality agreements are improper, as Sen. Nene Pimentel noted. Nothing should be withheld from the public view, from any examination and testing even at the risk of having the technology stolen, assuming it to have even been patented. The proper recourse is a patent infringement suit if the patented technology is appropriated and used for commercial purposes. It is never the proper recourse to withhold information from anyone of the public in a matter of such national import as the conduct of an automated election. It may be argued that showing all may open the AES to hacking in future elections. The answer to that argument is, Who should we trust? The Comelec and Smartmatic or the public? Besides, we received repeated assurances from Smartmatic that even if the system is hacked, it will receive only one legitimate transmission from the field.

25.Before the next automated election, all the loopholes in the PCOS and the automated election process should be firmly plugged by either the current provider or by another more assiduous supplier. If not, a reversion to manual elections with heightened vigilance by organizations like the PPCRV and NAMFREL would probably yield more credible and accurate results. Comelec Director Jose Tolentino is right. The problem is not automation but the people running the automation, which is to say, the same people whose perennial and persistent misconduct of manual elections prompted the conversion to automation in the first place. Guns really don't shoot people, people shoot people. Machines don't cheat, people do. Unfortunately, the same people are still running Comelec despite periodic changes of Commissioners over the years and the leadership of well-meaning chairmen such as the incumbent.

Finally, the committee urges the immediate adoption of this report and the provision of copies thereof to the appropriate agencies and entities so that immediate action on the recommendations.

Respectfully submitted:
TEODORO L. LOCSIN, JR.
Committee Chairman Suffrage and Electoral Reforms