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Diebold Whistle-Blower Charged With Felony Access 585

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.""
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Diebold Whistle-Blower Charged With Felony Access

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  • Re:Legal Questions (Score:3, Interesting)

    by l2718 ( 514756 ) on Monday February 27, 2006 @12:20PM (#14808955)

    IANAL either, but it seems to me that a law criminalizing the act of an employee revealing internal company documents makes sense, especially when this involved attorneys speculating on the legality of actions of their client. I mislike calling information "property" -- for the life of me I can't understand why this guy is being charged with theft -- but the I think the principle of this suit is sound and makes for good policy.

    Now, whistleblowing is good, but part of attorney-client privilege is that people should be free to ask a lawyer "I've done X -- was that a crime?" and be able to rely on the lawyer's office to keep that discussion secret. This should have been handled differently if the leaker was an employee of Diebold, rather than a subcontractor for their laywer.

  • Re:Legal Questions (Score:3, Interesting)

    by iocat ( 572367 ) on Monday February 27, 2006 @12:34PM (#14809099) Homepage Journal
    To me it's amazing the Tribune printed anything about the case, since it seems to omit any reporting on crime in Oakland... But I've voted in Alameda county since 2001, and I have no faith any of my votes have ever been counted. The incompetence of the poll workers, combined with the easily hackability / uselessness of the machines (one year I could have voted twice, in the same kiosk, with the same 'smart card') is just stunning. Not to get too local, but does anyone from SF know who makes those voting systems? As I recall, they switched from punch cards to a system where you draw a black line between two other black lines. An optical reader will reject any ballots where you vote >1 in a single race when you try to hand in the ballot. So, no "hanging chad" incidents, and a solid, unambigious, paper record of each vote.
  • by rovingeyes ( 575063 ) on Monday February 27, 2006 @12:35PM (#14809112)
    doesn't make his actions ok.

    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.

  • by nido ( 102070 ) <nido56 AT yahoo DOT com> on Monday February 27, 2006 @12:38PM (#14809136) Homepage
    "jury nullification" is for when the jury thinks the person on trial is getting a raw deal. The system's been rigged so that the judge won't instruct the jury members of their right to acquit even if they think the accused technically broke the law.

    Common Law only has two parts that've been discovered thus far:
    • Do all you have agreed to do (contract law)
    • Do not encroach on other people or their property (golden rule)

    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.

    [The American Jury Institute's] mission is to inform all Americans about their rights, powers, and responsibilities when serving as trial jurors. Jurors must know that they have the option and the responsibility to render a verdict based on their conscience and on their sense of justice as well as on the merits of the law.
  • Re:Legal Questions (Score:3, Interesting)

    by anagama ( 611277 ) <> on Monday February 27, 2006 @12:44PM (#14809195) Homepage
    I can't comment on CA, I work in WA, but there are some exceptions to confidentiality for WA state attorneys []. RPC 1.6(b)(1) allows breaking confidentiality to prevent a crime. Just to be clear, this is WA's rule and CA could be different.

    As this guy wasn't an attorney, and the Rules of Prof. Conduct exist to scare attorneys into good behavior, the prosecution is likely based on some law in a "computer tresspass" vein. Whatever -- the prosecutor needs to have his head examined. What a freakin' idiot.

    The interesting question here for me is what may happen to the law firm. I know in WA that I'm held responsible for breaches made by my employees. That's not a small matter when it could put a very expensive license on the line -- I'll be paying $700/month in student loans for the next 25 years for mine and my loans aren't that bad compared to others'.
  • by stlhawkeye ( 868951 ) on Monday February 27, 2006 @12:45PM (#14809204) Homepage Journal
    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.
  • Once again, RTFA... (Score:2, Interesting)

    by kokoloko ( 836827 ) on Monday February 27, 2006 @01:04PM (#14809410)
    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.
  • by fishbowl ( 7759 ) on Monday February 27, 2006 @01:06PM (#14809428)

    >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.

    What do you mean, exactly? What precise words do you say, and do you say it during voir dire? How do you know you'll get the chance to say it?

    I've been excluded from a jury once because I refused to answer a question regarding my religious beliefs. Apparently I was the first person to ever do this. I explained that my understanding of the First Amendment was that no court or any other government agent could justify any concern of my religious beliefs whatsoever.

    When I was younger and much crazier, I was excluded from a jury because I wore my Karl Marx T-Shirt.

    Once when I was on a jury, the judge explained about nullification, and made it clear that while jury nullification may end the trial, there are still significant appeals and review processes.

  • by C10H14N2 ( 640033 ) on Monday February 27, 2006 @02:03PM (#14809974)
    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
  • Re:Legal Questions (Score:2, Interesting)

    by professionalfurryele ( 877225 ) on Monday February 27, 2006 @02:07PM (#14810019)
    I question the law on this one if it is as you say.

    In matters where government might be fradulently elected you cant trust the police or any other arm of government. It should be recognised in law that a whistle-blowers first port of call is irrelevant and that they have a moral obligation to go to the source that will most readily dispense the information the public has a right to know to the public, whatever that might be.

    The whole point is to guard against conspiracy, you cant do that if your only legal recourse if an arm of the very thing you are trying to counteract.
  • Re:Legal Questions (Score:3, Interesting)

    by h4rm0ny ( 722443 ) on Monday February 27, 2006 @02:08PM (#14810023) Journal

    If I knew a big corporation like Diebold was doing something like this in the USA, and I wished to prevent it, I would go to the media, rather than the law. I might of course do both, but realistically, which is going to get results in any kind of timescale that is meaningful.

    What do you do? Call the local police? Lot of faith there. Begin procedings yourself? With what financial backing? Go to the government? At the speed they move and when there's a suspicion of complicity (not unreasonable with Diebold's ties)?

    If you actually care about democracy, go to the media. Clearly it is the public that is the victim in a vote-rigging, so clearly the public should be told.

Don't get suckered in by the comments -- they can be terribly misleading. Debug only code. -- Dave Storer