Published on Business Mirror Online, Tuesday, 27 November 2012 18:53
Written by James Jimenez / Spox
OVER the past few days, several groups have again gone on a major offensive, attempting to undermine public confidence in the automated election system (AES) rolled out by the Commission on Elections (Comelec) in the May 10, 2010, national and local elections.
At the heart of these renewed attacks is the claim that, because of a legal tussle between the Precinct Optical Scan (PCOS) machines provider and a technology company (from which the provider obtained a worldwide license “to make, have made, use, import, offer for sale, lease and sell” voting systems utilizing certain technologies developed by that company), no source code for the 2010 AES was ever deposited with the central bank—as required by the automation law—and that the 2013 elections are somehow in jeopardy.
Time for a fact check.
What these attacks have left unsaid are: first, that the licensing agreement between the provider and tech company included a provision whereby the tech company is obligated to place all its source codes in escrow so that if it ever breaches its licensing agreement with the provider, the provider can take those codes out of escrow and use them to cure the breach.
This common provision in licensing agreements, which gives protection to the license-holder against the possibility of the licensing party reneging on its obligations, was the subject matter of the dispute between the PCOS machines provider and the tech company; and, it is important to note, between them alone.
By no stretch of the imagination does this legal dispute mean that the provider never got any source codes which it could then, as per the licensing agreement, use for its business. Thus, as between the PCOS machines provider and the Comelec, the source codes were duly submitted to a third-party reviewer, which in due time completed its review, thus triggering what is called the trusted build—essentially, the creation of the final version of the software for use in the automated elections, using the reviewed source code. In 2010 the entire trusted build process was publicly conducted, after which the source code—which was the basis of the trusted build—was deposited with the central bank, together with all the verification mechanisms necessary to validate both the existence and the authenticity of the escrowed code.
In fact, in compliance with the law, the Comelec even prepared facilities—manned by representatives of both the provider and the tech company—that would have enabled interested parties to actually examine the source code. Unfortunately, the review process was boycotted by the very same people who now claim that the code never actually existed.
Second, the doom-mongering neglects to mention that since 2010, an enhanced version of the system was developed and tested in 2011, with the end in view of using that system for the elections in the Autonomous Region in Muslim Mindanao. While the ARMM elections were scrapped, the system—enhanced from 2010—remains available for the Comelec to use in 2013; again, independently of whatever legal issues remain between the PCOS machines provider and the tech company.
As an interesting sidelight, the suit between the provider and the tech company was actually raised before the Supreme Court last month, in a supplement to a motion for reconsideration filed against an earlier decision of the Court, which upheld the validity of the Comelec’s purchase of the PCOS machines for the 2013 elections.
In its decision however, rendered on October 23, 2012, the Supreme Court saw no reason to reconsider its earlier ruling, and went on to affirm the “conclusion that the assailed Resolutions issued by the Comelec and the agreement and deed entered into between the Comelec and Smartmatic-TIM are valid.” The Court, in fact, added: “Lastly, we need not further discuss the issues raised by movants on the alleged glitches of the subject PCOS machines, their compliance with the minimum system capabilities required by law, and the supposed abdication of the Comelec’s exclusive power in the conduct of elections as these issues have been either thoroughly discussed in the assailed decision or in the earlier case of Roque Jr. v. Commission on Elections.”
Unfortunately, it seems that even this definitive ruling by the highest court in the land is not enough to convince some quarters that the law was complied with, and that sufficient safeguards are in place to preserve the sanctity of elections.
Instead, it is apparently easier to imagine a grandiose deception that was supposedly carried out under the very noses of both media and civil society and, allegedly, with the full complicity of all the powers that be.
James Jimenez blogs at http://james- jimenez.com and tweets as @jab-jimenez on Twitter.