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EPIC --- Privacy and Human Rights Report 2006

Voting Privacy

E-voting

Technology that facilitates the right of citizens to participate in the public discourse may threaten privacy, especially when it is associated with the administration of elections and, under certain conditions, the very act of voting.[828] The use of technology in the online[829] and offline[830] voting process remains in transition around the world.[831] The criticisms of electronic voting systems focus on the accuracy, reliability, and security of votes once cast. The Charter of Fundamental Rights of the European Union[832] and the United Nations Universal Declaration of Human Rights[833 ]support the right of citizens to both privacy and self-governance. In 1983, the first definition of democracy in Europe, which included an affirmation of the right to a secret ballot, was expressed at the conclusion of the first Strasbourg Conference on Parliamentary Democracy.[834]

E-voting technology allows, for the first time, independent voting in public elections for millions of disabled and language minority voters through the benefit of a secret ballot.[835] Efforts existed prior to the introduction of electronic voting to facilitate independent voting for the blind.[836]

Direct Recording Electronic (DRE) Voting Machines

DRE voting machines produce no tangible evidence of the ballot, but instead save the voters choice to a memory card or disk stored in the voting device.[837] However, a hybrid DRE voting machine that uses the technology as a paper ballot-marking device is now available for use in public elections.[838] These DRE paper and paperless voting machines are applicable to online and offline voting systems. They each may use one of two dominant forms of voter interface: push buttons or a touch screen display.[839] DRE voting machines provide privacy to voters through the application of cryptography[840] and assistive technology.[841] The use of smart cards, tokens or the registration of the order in which voters use the machines could each compromise the users' privacy.[842]

Optical Scan Voting Systems

Optical scan voting systems are paper based vote capture mechanisms that rely on the ability of the voter to indicate ballot selections using a pencil or pen. A few of these optical scan systems also feature an electronic voting interface similar to DRE systems, but unlike DREs at the end of the process will create a physical ballot with a record of the voter’s selections. The accessibility of these systems for persons with disabilities or those who are language minorities is in question because the printed optical scan ballot may not be independently reviewed.

Automated Tabulation of Paper Ballots

Technology may be used to expedite the counting of paper punch card ballots or optical scan ballots used in public elections.[843] Ballots are collected at polling locations and in most cases transported to a central location for counting.[844] Ballot reading technology may be present in voting locations to allow voters to verify their ballots before leaving them and for counting purposes.[845] This may present privacy problems should the ballot choices be visible to others. Some voting administration procedures if not clear may be interpreted to allow voters to give their ballots to poll workers to place ballots through ballot readers, which threatens ballot secrecy.[846]

Internet Voting

In October 2000, the Internet Corporation held the first binding global Internet Election for Assigned Names and Numbers (ICANN), the technical coordinating entity for the Internet. The election selected Directors for the ICANN Board.[847]

Internet or online voting is continuing to make inroads with a small number of countries attempting public elections using this method.[848] Most of the earlier public elections involved low-level political contest or decisions. Internet voting may take one of two forms: a polling place Internet voting system and/or a remote Internet voting system.[849] In 2006, e-voting became an election innovation measure to allow citizens living abroad to participate in national elections. Dutch and French citizens living abroad were allowed to cast ballots over the Internet during their respective 2006 elections.[850]

An Internet voting paradigm raises several privacy questions: are Internet votes cast in secret? Are Internet voters free of intimidation or undue influence by others? How can adequate private spaces around personal computers acting as voting machines are maintained, and how can data in transit be secure from disclosure or tampering? The answers to these questions will indicate how much Internet voting will help to ensure privacy and voting in the future.

Electronic Voter Registration and Centralized Registration Databases

Electronic voter registration and centralized registration databases present challenges to privacy.[851] To participate in public elections 96 nations require some form of voter registration, while 61 nations require no form of voter registration.[852] Electronic voter registration that establishes centralized databases of personally identifiable information on voters for a region or nation would be a target for identity thieves, manipulation, and tampering.[853] There is also a concern that national voter registration requirements could be used in ways that were not initially disclosed by governments.[854] Some proposals for centralized voter registration would allow governments to check voter registration information against other government-managed databases.[855] In the United States the Help America Vote Act allows states to check voter registration list with other state databases like those kept for drivers license, or public assistance to verify the identity of potential voters.

In addition to a requirement of a minimum attained age as condition for voter participation, 123 counties require citizenship, 33 a period of residency, 6 citizenship of parents, 21 naturalization, and 28 countries with some other requirements as a condition of registration.[856] Many nations restrict access to voting based on several criterion: 93 for incarceration, 33 for previous conviction, 28 on detention, 97mental disability, 16 because of military service, multiple citizen, service on the judiciary and various other limitations are also used to limit political participation.[857]

Voter Identification

There are two conditions that must be satisfied to have a public election declared: all those who are legally eligible to participate in a public election must be allowed to vote, while at the same time those who are not legally allowed to participate are not allowed to vote. The dispassionate and objective application of voting law precludes looking at an individual voter and making a determination of eligibility. The voter registration process is based on identification of the applicant and is designed to determine eligibility. On Election Day most registered voters engage in the voting process by presenting themselves to election administration representatives who then authenticate voters, verify that the voter is listed on voter registration roles and are in fact the person they claim to be. The voting process in a free democratic pluralistic society is accomplished without consideration of the voter’s income, language of origin, education, tribe, clan, gender, race, or ethnicity. Most nations establish 18 years of age as the only prerequisite for applying for voter registration.

The sophistication of voter registration documents vary greatly from a slip of paper reporting the most basic demographic information such as name, address, minor political jurisdictions, and voter registration number to more durable documents such as Mexico’s Instituto Federal Electoral card, which contains a photo, fingerprint, anti-tamper features along with other vital statistics on the voter.[858] In 2006, the Mexican election came under intense scrutiny because the margin of victory between the top two vote receivers was only 200,000 votes out of the 41 million cast. In the US, many and voting civil rights advocates are locked in a struggle over more restrictive voter identification and authentication requirements because of how they will affect minority, poor, and elderly voters. Globally there are increasing demands for governments to visit the issue of greater identification requirements on citizens to prove residency status by obtaining government issued identification documents. In some cases there are costs associated with the acquisition of the approved document.

Absentee Voting or Voting by Mail

Absentee voting or voting by mail exposes voters to the threat that their votes may not be kept secret. Absentee voting systems must ensure that only qualified voters and those who have not participated in the regular election are the only absented ballots counted. These conditions over time have lead to a system of absentee voting that associates each absentee ballot to the voter, which could threaten ballot secrecy.[859]

[828] Associated Press, “Widow with Visible Vote Gets no Help,” Los Angeles Times, March 12, 1992, Part A; Page 15.
[829] Parliamentary Office of Science and Technology Post Notes, May 2001 Number 155 ONLINE VOTING, available at <http://www.parliament.uk/post/pn155.pdf>.
[830] European CommissionCybervote Project Report, Chapter 2, The History of the Internet <http://www.eucybervote.org/Reports/KUL-WP2-D4V1-v1.0-01.htm>.
[831] See generally EPIC's Voting Page web page <http://www.epic.org/privacy/voting/>.
[832] Charter of Fundamental Rights of the European Union, Article 39, available at <http://www.europarl.eu.int/comparl/libe/elsj/charter/art39/default_en.htm>.
[833 ]UN Declaration of Human Rights General Assembly resolution 217 A (III), December 10, 1948, available at <http://www.un.org/Overview/rights.html>.
[834] US Institute of Peace, "The Quest for Democratic Security the Role of the Council of Europe and US Foreign Policy," available at <http://www.usip.org/pubs/peaceworks/pwks26/chap2_26.html>.

[835] ACE Project, "Focus on Elections and Disabilities," available at <http://www.aceproject.org/focuson/disability/>.
[836] ACE Project, "Best Practices, Ballot Templates," available at <http://www.electionaccess.org/Bp/Ballot_Templates.htm>.

[837] Roy G. Saltman, National Institute of Standards and Technology, "Accuracy, Integrity, and Security in Computerized Vote-Tallying," NBS Special Publication 500-158, August 1988, at 112.
[838] Accupoll on a Voter Verified Paper DRE Voting Machine, press release, available at <http://www.accupoll.com/News/NewsReleases/releases/2004-06-11.html>.
[839] The Administration and Cost of Elections (ACE) Project <http://www.aceproject.org/main/english/em/emf02.htm>.
[840] See generally EPIC's Cryptography web page <http://www.epic.org/crypto/>.
[841] See generally National Committee for Voting Integrity (NCVI)'s Voting Accessibility web page <http://www.votingintegrity.org/Issues/Access.html>.
[842] See generally ACE Project <http://www.aceproject.org/main/english/et/et20.htm>.

[843] NCVI's Optical Scan web page <http://www.votingintegrity.org/Issues/OpticalScan.html>.
[844] Optical Scan vote counting by Doug Jones, available at <http://www.cs.uiowa.edu/%7Ejones/voting/optical/>.
[845] See generally ACE Project <http://www.aceproject.org/main/english/em/emf02.htm>.
[846] Letter from the Chinese for Affirmative Action to John Arntz, Department of Elections California, November 22, 2002, available at <http://www.caasf.org/PDFs/pollletter112202.pdf>.

[847] European Commission Cybervote Project Report, Chapter 2, supra.

[848] European Commission CyberVote Report by Voto Electronico, April 5, 2004, available at <http://www.euskadi.net/botoelek/otros_paises/sim0_i.htm>.
[849] Act Voting Project, Countries with E-voting Projects, available at <http://aceproject.org/ace-en/focus/e-voting/countries/?searchterm=Internet%20voting>.

[850] Department of Constitutional Affairs and Legislation, Invernet Elections in the Netherlands, available at <http://www.minbzk.nl/aspx/get.aspx?xdl=/views/bewindslieden/xdl/page&SitIdt=68&VarIdt=72&ItmIdt=69774>. See also

“Internet Voting in France Under Question,” EDRi-Gram, Online Newsletter, August 30, 2006 <http://www.edri.org/edrigram/number4.16/evotingfrance>.

[851] ACE Project Voter Registration Web Page, available at <http://aceproject.org/epic-en/vr/Epic_view/VR08>.
[852] Id.
[853] National Committee for Voting Integrity (NCVI) Centeralized Voter Registration Databases Web Page, available at <http://www.votingintegrity.org/Issues/CenteralizedData.html>.
[854] ACE Project Information Collection, available at <http://www.aceproject.org/main/english/vr/vrd02b.htm>.
[855] Id.

[856] ACE Project, <http://aceproject.org/epic-en/vr/Epic_view/VR02>.
[857] ACE Project, What restrictions on registering to vote and voting exist in the country?, available at <http://aceproject.org/epic-en/vr/Epic_view/VR03>

[858] Instituto Federal Electral,The 2006 Mexican Elections Frequently Asked Questions, available at <http://www.ife.org.mx/portal/site/ife/menuitem.6d5c4db6df32b7b841695c16100000f7/;jsessionid=GncjSkFRvWPtNPcQ9X0WemoY9fzrROmOuPFvOxrwZ287Qi6QuBc2!-2046246460>.

[859] Rokita, Todd, "It's Important for Hoosiers to Understand Absentee Ballot Procedure," South Bend Tribune (Indiana), October 21, 2003, at A7.